Legislator readies defense of ‘heart and soul of SB1070’ as Tucson voters decide on sanctuary city measure

Nearly a decade after the passage of Senate Bill 1070, a Republican lawmaker is ready to defend Arizona’s controversial immigration enforcement law by imposing more penalties as Tucson voters consider limiting the law’s reach and making that community the state’s first official sanctuary city. 

The Tucson initiative, titled “Tucson Families Free and Together,” outlines where and how Tucson police officers can determine someone’s immigration status, which is a requirement for all law enforcement agencies under SB1070. Voters there will have their say on the matter in an election next month.

Rep. John Kavanagh, R-Fountain Hills, called the Tucson ballot proposal “outrageous” and a blatant violation of SB1070, even though proponents insist it does not violate state law. 

“The heart and soul of 1070 was the questioning, and that was ruled constitutional,” Kavanagh said. “And the second most important thing was the sanctuary city ban.”

SB1070 requires police officers who conduct a stop, detention or arrest to make a reasonable attempt to verify the immigration status of a person with the federal government, unless making that determination is not practicable or may hinder or obstruct an investigation. But before making that determination, officers have to establish reasonable suspicion that the person is not a U.S. citizen and “is unlawfully present in the United States.” 

Those advocating for the Tucson ballot proposal, Proposition 205, said they worked within those boundaries of SB1070.

“We wrote around SB1070,” said Zaira Livier, director of People’s Defense Initiative, which is leading the campaign for Prop. 205. “We are trying to make SB1070 as unenforceable as much as we can. (The initiative) gives direction where no direction is given.”

Lawmakers warn of more state penalties for sanctuary cities

Under SB1070, a local jurisdiction that “adopts or implements a policy that limits or restricts the enforcement of federal immigrations laws (…) to less than the full extent permitted by federal law” can be sued by any state resident. The civil penalties range from $500 to $5,000 for each day the policy is in effect.

Kavanagh said that while he can’t stop the Tucson initiative, set for the Nov. 5 election, he can increase the liability for sanctuary jurisdictions. He plans to introduce legislation allowing people to sue cities for damages if they are harmed by restrictions to Arizona’s immigration enforcement law.

“The next best thing I can do would be to give some justice to the victims, people who are victimized by criminal illegals who wouldn’t have been victimized had the municipalities followed the law, contacted immigration authorities, and of course (the immigrant) might have been removed from the country,” Kavanagh said. “This is about economic justice for victims so they are compensated for what I consider to be very irresponsible actions by a municipality, should such laws be passed by voters or a city or town council.”

Kavanagh’s seatmate, Scottsdale Republican Rep. Jay Lawrence, had announced his plans to introduce a bill to preempt sanctuary city ordinances, but he told Arizona Mirror he’s no longer planning to run the bill.

“Too many anti-sanctuary bills would muddy the water and make it difficult for one to pass,” Lawrence said. 

Instead, Lawrence said he’ll co-sponsor Kavanagh’s bill.

The term “sanctuary city” is nowhere in the language of the controversial Arizona immigration enforcement law. There’s also no legal definition for the term.

Kavanagh points to the first provision in the SB1070, Section A, which he considers is the sanctuary jurisdiction ban. It states, “No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.”

His bill would define sanctuary juristiction as a place that prohibits or restrics an official or government entity from “sending, receiving, maintaining or exhanging with any federal, state or local government entity information” about the immigration status of an undocumented immigrant; or fails to comply with an immigration detainer or notify federal authorities of the release from custody of an undocumented immigrant.

Kavanagh’s sanctuary city liability bill

Kavanagh said his bill would make a city like Tucson liable for failing to contact the federal government to determine the immigration status of a person with a criminal record that, within a period of 10 years, is again convicted of a crime in Arizona. 

Kavanagh’s proposal is framed around immigrants who meet three criteria: They don’t have authorization to be in the country; have at least one prior conviction of murder, sexual assault or another felony; and are later convicted of murder, sexual assault or another crime in Arizona. 

The bill would allow victims of the latter crime, or family members of the victim in a homicide, to sue any Arizona city, town or county for civil damages, if, in the 10 years prior to the crime, a jurisdiction failed to do two things:

1. Notify the federal government about the release of an undocumented immigrant, or failed to comply with an immigration detainer.
2. Contact the federal government to check the immigration status of the person under requirements of SB1070. 

Liever, of the Prop. 205 campaign, criticized Kavanagh’s proposal. 

“It’s not based in reality or law. How you can apply anything like this?” she said. “It’s just another way for the state legislature to try to sway Tucson voters from voting with our conscience and voting for something that we in Tucson believe. We believe our undocumented community members shouldn’t be pulled over for a broken tail light and deported.”

The American Civil Liberties Union of Arizona, which led a lawsuit against SB1070 and later worked with local law enforcement agencies develop policies on immigration enforcement, is behind the Tucson initiative. 

ACLU spokeswoman Marcela Taracena also said Kavanagh’s proposal is meant to sway Tucson voters.

“We are proud to endorse Proposition 205 because propositions like this keep all residents safe and together, and force law enforcement to shift its focus back to public safety,” Taracena said in a statement. “Arizona has long endured hateful and racist behaviors from Arizona officials and the ACLU of Arizona has consistently fought back against policies that harm immigrant communities. We will stand ready to fight Rep. Kavanagh and Rep. Lawrence’s bills as well.”

Besides Kavanagh and Lawrence, three other Republican state legislators – Reps. Mark Finchem and Bret Roberts and Sen. Vince Leach – have sent out press releases in support of stronger state penalties for sanctuary cities. 

Gov. Doug Ducey also urged Tucson voters to reject Prop. 205.

Limitations around SB1070 already in place at police departments

A September 2016 guidance from Attorney General Mark Brnovich instructs law enforcement agencies on how to implement SB1070 and its constitutional limitations. For example, the guide says officers can not detain a person solely for determining an immigration status, or “prolong a criminal investigation or inquiry in order to accommodate or complete immigration-related tasks.” 

It also states that local law enforcement has no authority to arrest a person they believe has committed a civil immigration violation. Civil violations of federal immigraiton laws include being in the country without authorization, and a seeking or engaging in employment without authorization. 

That policy guide stemmed from a settlement reached between Brnovich and civil rights groups that sued the state in 2010 to stop SB1070. 

Attorney Daniel Ortega was co-counsel in that lawsuit. He said Tucson’s initiative does comply with SB1070.

“Prop. 205 is very specific in the things that they cannot use for reasonable suspicion,” Ortega said. “It is not in conflict with the settlement with Arizona on SB1070, which deals with how local law enforcement officers can interpret reasonable suspicion. (Prop. 205) expands those requirements.”

Livier said “racial proxies” are used to meet the reasonable suspicion requirements of SB1070, even though the law prohibits the use of race, color or national origin from being considered. The 2016 guidance also prohibits the use of ethnicity. The Tucson initiative outlines several factors that cannot be considered. Among them are the person’s name, mode of dress, race or ethnicity, ability to speak English, inability to provide a local residential address and proximity to undocumented immigrants.  

Tucson City Attorney Mike Rankins said these restrictions could violate requirements of SB1070 in a letter he wrote to the city council in January.

“I believe these limitations conflict with the obligations imposed under (SB1070) and are contrary to the concept of reasonable suspicion under legal precedent,” Rankins wrote.

The initiative also makes it policy of the city to find it impracticable to determine an immigration status of someone during a traffic stop. 

Kavanagh thinks those restrictions in the Tucson initiative around reasonable suspicion and traffic stops go too far. 

“There are specific investigatory situations that 1070 allows, but it’s a decision the officers make at the scene, not a blanket (policy) that you can never go down that road,” he said. “That is why it’s illegal.”

The ballot proposal also prohibits Tucson police from inquiring or determining someone’s immigration status at schools, hospitals, clinics or nursing homes, churches or places of worship and state or local court buildings. 

Phoenix police has a similar policy barring school resource officers from asking immigration questions or contacting federal immigraiton authorities on school grounds. Kavanagh said that Phoenix police guide is also a violation of SB1070. 

“I believe that blatantly violates 1070, but the AG didn’t want to pursue any of that,” he said. “I don’t have the time or money to (sue), but it’d be nice of some residents of Phoenix sued the city on that.”