PHOENIX — A state lawmaker wants to put taxpayers of any city that enacts a “sanctuary” policy on the financial hook if police fail to call immigration officials on someone who is a convicted felon, is in this country illegally and goes on to commit another felony.
Rep. John Kavanagh, R-Fountain Hills, said it’s already illegal for communities to refuse to cooperate with Immigration and Customs Enforcement. The penalty is loss of half of their state aid.
But Kavanagh told Capitol Media Services on Tuesday none of that helps a person who becomes a victim of someone who should have been turned over to ICE.
“Who’s going to compensate the victims?” he asked. “That’s what this bill does.”
Kavanagh acknowledged there’s a second reason for his proposal: A measure being voted on in the November election by Tucson voters to declare the community the state’s first “sanctuary city.”
“Tucson voters should understand that if they vote ‘yes,’ and my bill is passed, they could be causing their city to incur liability,” he said.
The wide-ranging Tucson proposal would prohibit police from detaining someone to determine that person’s immigration status.
It also would bar police from participating in any activity, investigation or enforcement action to determine whether someone is in the country legally. It would spell out that anyone who is detained must be released once the officer has completed all the tasks leading to the original traffic stop or criminal investigation “regardless of whether the officer has determined such detainee’s immigration status.”
It also says police “shall not initiate contact with a federal law enforcement agency by phone” in seeking to determine whether someone stopped or arrested is unlawfully in this country.
Kavanagh wants something in place should it pass.
He said his bill would not create liability for every act committed by every person who police have stopped, did not question about their immigration status and then released. Instead it would apply only to cases where the person who is in this country illegally already was a convicted felon who subsequently committed another felony.
“If their (sanctuary) policy causes them not to call, and this individual has committed a felony, then he’s considered a dangerous criminal,” Kavanagh said. “And if that dangerous criminal harms somebody, they (the city) will have to pay the civil damages” from any successful civil litigation that results.
Kavanagh has been a long-time supporter of various laws designed to target people who are not in this country legally. That includes SB 1070, the 2010 Arizona law designed to give police more power to to detain suspected illegal immigrants.
Much of that law was voided by federal courts. But one provision that remains requires police who have stopped, detained or arrested someone for any reason to make a reasonable attempt to determine that person’s immigration status if there is “reasonable suspicion” that person is not in this country legally. The U.S. Supreme Court said the provision, on its face, is not unconstitutional or preempted by federal law.
Another SB 1070 provision bars Arizona officials, agencies and political subdivisions, including cities, from limiting enforcement of federal immigration laws.
As it’s written, the bill Kavanagh said he will introduce has a three-part test to determine whether someone can sue.
First, the individual or survivors would have to be the victim of a felony.
Second, the person not in this country legally would have to have been previously convicted of a felony and sentenced to at least a year in prison.
Kavanagh said it also would require that a local government either refuse to comply with a lawful request by federal immigration officials to hold someone or the failure of police to inquire of ICE to determine the person’s immigration status.
And it would specifically define a “sanctuary city” as any community “that has in effect an ordinance, policy, rule or practice” that restricts local officers from communicating with immigration officials and honoring any request by those officials to detain that person.
Kavanagh said he would actually prefer to make communities liable for releasing anyone not here legally, regardless of whether they had a felony conviction.
“The attorneys I spoke to didn’t think you can attach criminal liability for releasing somebody that’s not dangerous,” he said.
The legislation also has a clock of sorts: Only those who were the victim of a felony within 10 years of someone being released would have the right to sue a sanctuary city.
“At some point, the chain of causality is severed,” Kavanagh said. “So I don’t make this forever.”
Kavanagh is virtually certain of getting a hearing on his legislation. He chairs the House Government Committee to which it could be assigned.
