ACLU pauses legal fight over Arizona’s Prop 314 immigration law

PHOENIX — The American Civil Liberties Union is dropping its bid to block state and local police from arresting some people who cross the Arizona border illegally.

Attorney John Mitchell said the ACLU and the Florence Immigrant & Refugee Rights Project, which it represents, continue to believe a key provision of Proposition 314 is unconstitutional.  The provision, approved by Arizona voters in 2024, gives state and local police authority to enforce certain federal immigration laws. 

But Mitchell said there is no way to pursue the case — at least right now — because there’s no evidence that anyone has actually been picked up under the new law, which took effect just a month ago.

“And that means it’s not the right time to continue litigating,” he said.

Going forward, he said, they will monitor police activity to see whether anyone is charged with breaking the law. Only at that point, he said, will there be someone with the legal standing to go back to federal court and ask a judge to delay enforcement and, eventually, have the statute declared unconstitutional.

Voters approved Prop. 314 after TV airwaves were flooded with videos of people crossing the border through gaps in fences and other isolated spots.

The Biden administration had made a conscious decision to adopt a policy of “catch and release,” with entrants processed by Customs and Border Protection and then released with notices to appear in immigration court. That led Republican legislators to argue that the state needed to take action on its own.

When Hobbs vetoed their plan, GOP leaders had it put on the 2024 ballot.

Prop. 314 contains several provisions, including requiring state and local agencies providing taxpayer-funded benefits to verify immigration status and making it a felony to submit false documents to employers. There is even a section that enhances the penalty for selling fentanyl if it results in the death of another.

The heart of it, however, is Section 5.

It makes it a misdemeanor for anyone who is not a citizen to enter Arizona from a foreign country other than at a port of entry. As a state crime, that empowers state and local police to enforce it.

But it also allows a judge to order the arrested person deported, rather than face criminal charges.

U.S. District Court Judge Mike Liburdi rejected the ACLU’s bid last month to halt enforcement of Prop. 314 while it was being litigated.

Mitchell acknowledged that leaves his organization’s challenge in legal limbo.

“The trajectory of this litigation has always depended on when and how the state chooses to enforce Section 5,” he said. “In the first month that Section 5 has become fully enforceable, we’ve just seen none. So, from a litigation standpoint, it means our best strategy is to hold off until we get evidence of that enforcement.”