Arizona GOP lawmakers move to send border policing measure to voters

PHOENIX — House and Senate panels dominated by Republicans are moving to ask voters to let state and local police arrest some people who aren’t in the country legally, rejecting claims it will lead to racial profiling.

House Concurrent Resolution 2060 was approved Wednesday by the Senate Committee on Military Affairs, Public Safety and Border Security on a 4-3 margin.

It would make it a crime for "an alien'' to enter or attempt to enter Arizona directly from Mexico at any location other than a port of entry. Violations would be a Class 1 misdemeanor, which generally means six months in jail.

But the real purpose appears to be to allow such people to be deported. The measure spells out that charges would be dropped if the person agrees to leave the United States.

The wording is pretty much identical to a bill that Democratic Gov. Katie Hobbs vetoed earlier this year, calling it “harmful for communities and business in our state, and burdensome for law enforcement personnel.’’

By putting it in a ballot measure, backers hope to bypass the governor and take their case directly to voters in November.

They’re also using the opportunity to pack other issues into the proposal, including:

— Making it a state crime for someone not lawfully in this country to submit a false document in applying for federal, state or local benefits;

— Requiring any agency that administers benefits to use the federal E-Verify system maintained by U.S. Citizenship and Immigration Services, to determine if someone is here lawfully;

— Criminalizing providing false documents or information to an employer to evade detection of not being in this country legally;

— Imposing a presumptive 10-year prison sentence on any adult who knowingly sells fentanyl to someone else and the drug is a “substantial cause’’ of that person’s death.

Legal challenge expected

Most of the debate, however, was about the language giving state and local police certain immigration enforcement powers.

That is virtually identical to legislation approved in Texas. Enforcement there has been held up by a federal appeals court amid challenges by the U.S. Department of Justice, whose attorneys contend any issue dealing with immigration is strictly a federal matter and beyond the reach of any state.

On Wednesday Hobbs criticized the plan of Arizona’s Republican-controlled Legislature. She also raised the issue of litigation should the measure be approved here.

“Certainly, there are constitutional concerns that will be brought up around this measure,’’ she said.

But the crafters are a step ahead.

HCR 2060 has a provision saying it cannot be enforced here until the Texas law has been allowed to take effect for at least 60 days, presumably after a final order in a case likely to wind up at the U.S. Supreme Court. And if the justices find the Texas law valid, that likely would undermine any bid to have its Arizona counterpart voided.

But proponents also are anticipating a challenge here.

So they wrote the measure to ensure that someone defends it in court on behalf of the state if Democratic Attorney General Kris Mayes will not. It spells out that the president of the Senate or the speaker of the House can intervene if someone claims it is unconstitutional.

Of note is that the measure would also give similar rights to the minority leaders of the House and Senate. While both are now Democrats, that provision could give Republicans a foot in the legal door if voters decide in November to oust some GOP lawmakers, a move that could put Democrats in charge of one or both chambers.

Sen. Janae Shamp, R-Surprise, who crafted the earlier version that Hobbs vetoed, said there is a need for action to protect Arizonans against the effects of illegal immigration.

“Protect the citizens of Arizona”

“If the federal government will not protect the citizens of Arizona, the states must do their duty,’’ she said.

All this presumes not only that HCR 2060 gets final legislative approval — something that can’t occur until at least next week — but that voters go along.

Hobbs said there are plenty of reasons for people to vote against it.

“It will demonize communities,’’ she said, a reference to concerns that police, looking for people who may have entered the country illegally, will target Hispanics.

That argument was backed during testimony by Jennifer Reddall, bishop of the Episcopal Diocese of Arizona.

She told lawmakers what happened more than a decade ago when the Arizona Legislature approved SB 1070.

That measure was designed to give police the power to question people they stopped about their immigration status and detain those whom they suspected of being here illegally. Reddall said that led to fear amid Hispanics in the community about even going to church.

House Minority Leader Lupe Contreras, a Phoenix Democrat, said he had the same experience after SB 1070 was enacted.

He detailed for colleagues how his father was driving around, with him in the car, and it was pulled over. Contreras said that was clearly based on profiling because they had cowboy hats and were in a four-wheel drive vehicle.

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“That does not make us criminals,’’ he told colleagues during committee debate.

Most of SB 1070 was voided by the U.S. Supreme Court as unconstitutional. Contreras said HCR 2060 would reinstate much of what was wrong with that bill.

“Let’s not do this again,’’ he said.

Racial profiling issue

But Senate President Warren Petersen, a Gilbert Republican, said HCR 2060 is different.

He said SB 1070 dealt with statewide enforcement. By contrast, Petersen said, the new measure is designed to target only people along the border, rather than looking for undocumented immigrants throughout the state.

Asked how the law would get enforced without profiling, Republican Yavapai County Sheriff David Rhodes responded, “That’s obviously one of the biggest concerns.

But he said there are safeguards. He came to Phoenix Wednesday to express support for the measure.

Those start, Rhodes said, with a requirement that there be “probable cause’’ to believe someone entered Arizona at somewhere other than an official crossing. He said he and other sheriffs view this law as something that would be enforced “primarily’’ at the border.

What that means, he said, is seeing someone actually come through or over a border fence, having eyewitness testimony that someone crossed illegally, or knowing some other circumstance that would provide a basis for reaching such a conclusion, such as finding someone “out in the desert where there’s no port of entry for miles and miles.’’

“If there’s no probable cause that person entered the country other than at a port of entry, there’s no reason to initiate that contact,’’ Rhodes said.

But Rep. Analise Ortiz said that’s not how HCR 2060 is written. The Phoenix Democrat said there’s nothing in the measure that has any geographic limits on when someone could be arrested.

Rep. Quang Nguyen, however, said he doesn’t see anything in HCR 2060 that allows for racial profiling.

“This law is not about going after skin color,’’ said the Prescott Valley Republican. “It’s simply going after illegal entries. At what point are we going to say enough is enough?’’

Business interests

Arresting border crossers aside, Hobbs also expressed opposition to provisions dealing with employment.

“It will hurt businesses,’’ she said. “It will hurt farmers. It will send jobs to other states.’’

She said that’s why business interests opposed SB 1231, this year’s earlier version of the plan to let police arrest migrants.

“I’m calling on them to come out against this bill,’’ Hobbs said.

Whether that will happen, however, remains unclear. Danny Seiden, president of the Arizona Chamber of Commerce and Industry, said it will be up to the organization’s board whether to take a position.

Petersen, for his part, said he doubts such opposition will surface.

“Our business owners are telling us to protect the border,’’ he said. “This will make it better for business, safer for business.’’

Petersen argued that what attracts businesses and employees to Arizona is that they know they will be protected.

“They can go make a living and work,’’ he said. “They can live in a neighborhood and be safe.’’

Republican Pinal County Sheriff Mark Lamb told lawmakers he resented the claim that law enforcement engages in racial profiling.

“Your profiling and throwing us under the bus as if all of us were bad,’’ he told lawmakers.

“Welcome to my world,’’ responded Contreras. “It’s exactly what we are feeling.’’

Lamb said nearly half of his deputies are Hispanic or Black.

Rhodes acknowledged there is another issue. He said there’s nothing in the legislation to explain how the counties, faced with arresting and holding a lot more people, are going to cover the costs.

“This can’t be put on the backs of the counties,’’ Rhodes said. He said if voters approve the measure in November the sheriffs will be calling on state lawmakers to come up with the necessary cash.

“We will always fund public safety,’’ Petersen responded. He brushed aside questions of additional burdens on taxpayers.

“We are going to save money because of deterrents,’’ by sending a “clear message’’ that if people want to enter the country illegally “it’s going to have to be in a different state,” Petersen said.