Arizona Senate votes to send border policing measure to ballot

PHOENIX — State senators decided late Wednesday to ask voters to make it a state crime to enter Arizona from Mexico at other than a port of entry.

The party-line approval in the GOP-led Senate after nearly five hours of debate came after lawmakers added two provisions demanded by Sen. Ken Bennett. The Prescott Republican had refused to provide his needed vote without what he called safeguards to ensure the measure is not used to round up people already in this country illegally.

One change makes the plan apply to future illegal crossings only. Bennett said that ensures it won’t be used for random racial profiling.

The other, Bennett said, says someone could be arrested only if a law enforcement officer actually saw someone cross the border illegally or if there was “technological evidence,’’ such as a videotape. He said that also ensures police won’t use the law to stop people anywhere in the state simply because they look like they may be here illegally.

Sen. Priya Sundareshan, a Tucson Democrat, said it still insufficient to protect against racial profiling.

She pointed out the language also allows an arrest if there is “any other constitutionally sufficient indicia of probable cause.’’ She said that ends up being a “catch-all’’ that police could use for profiling.

Sen. John Kavanagh, a Fountain Hills Republican, conceded that does open the door for other situations.

The former police officer said there have been situations where people confess to breaking the law. He said that could — but doesn’t necessarily have to — be someone who is lost in the desert and needs help.

“Criminals are stupid, at least those that we catch,’’ Kavanagh said. There is no reason someone who makes such an admission should be immune to arrest, he said.

But Phoenix Democratic Sen. Anna Hernandez said problems with the measure’s language don’t end there.

Take the provision that would allow police to use video evidence, she said.

As written, Hernandez said, it would allow a police officer in Fountain Hills, armed with a video taken along the border of someone crossing, to go into someone’s home or church to search for them. What the bill is missing, she said, is any provision limiting enforcement to the border area.

Bennett dismissed that scenario as highly unlikely. “I don’t think that’s the way law enforcement officers work,’’ he said.

Maybe not, Kavanagh conceded. Consider, he said, a situation where someone robs a convenience store, there is videotape of the crime, police provide the video to TV stations that broadcast it and that results in a tip that leads to an arrest. “Why wouldn’t you want the police to do that?’’ Kavanagh asked.

Still, he insisted that wouldn’t be practical in efforts to find illegal border crossers.

“You have a tsunami of people coming across the border,’’ Kavanagh said, arguing that police won’t be taking videotapes to search out border crossers.

The measure, House Concurrent Resolution 2060, goes next to the House.

Much of its plan to make it a crime to cross the border illegally is similar or identical to Senate Bill 1231. But the latter proposal by Sen. Janae Shamp, R-Surprise, was vetoed earlier this year by Democratic Gov. Katie Hobbs who said border security is a federal and not a state issue.

What makes HCR 2060 different is that it would put the issue on the November ballot, giving voters statewide the last word — and bypassing the governor’s objections.

But supporters also included two other provisions.

One includes enhanced penalties for those who knowingly sell fentanyl if the drug causes the death of another person. That came over objections of Sen. Catherine Miranda, D-Phoenix, who said it is unrelated to border security and therefore a violation of constitutional provisions limiting legislation to a single subject.

HCR 2060 also includes a requirement for public agencies to use a federal database to determine if someone who seeks state or local benefits is in this country legally.

The heart of the measure, however, remains the argument by supporters that the state needs to play a role in border security because the Biden administration is failing to live up to its responsibilities.

“If the federal government will not protect the citizens of the sate, that is up to us,’’ said Shamp.

The measure would make illegal entry into Arizona other than at a border crossing a misdemeanor.

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The chance of the measure filling up jails and prisons is remote. That’s because it permits a judge to dismiss the charges if the person agrees to be deported.

Glendale Republican Sen. Anthony Kern said even this is a compromise.

“If it were up to me, every illegal immigrant would go back to their home nation,’’ he said, rather than just prospectively letting police arrest.

He said there is evidence some people who already crossed the border illegally are terrorists, saying that includes some of the Hamas members responsible for the Oct. 7 attack on Israel.

Mesa Republican Sen. David Farnsworth had an even darker view of current immigration policies, saying he no longer feels safe living in the United States.

"And the biggest reason we are not is we have a lot of people who hate our country who live here who are crossing the border,'' he said.

"I believe they are preparing, as a Fifth Column, to destroy our country,'' Farnsworth said. "I believe they are waiting for the signal to blow up bridges, blow up buildings and kill people. And we are allowing this to happen by our wide-open border."

But Tolleson Democratic Sen. Eva Diaz said HCR 2060 is flawed.

For example, she said, its provisions would not affect those who have been granted asylum. But those who are seeking asylum would remain subject to deportation even though the federal government recognizes their right to remain while their requests are adjudicated.

One crucial issue is whether the border security provisions would be enforced, even if voters approve in November.

That’s because they are modeled after SB 4 approved by the Texas Legislature. Challenged by the U.S. Department of Justice, its enforcement has been blocked by a federal appellate court until that litigation is settled.

With that in mind, HCR 2060 spells out that it cannot be enacted here until at least 60 days after there is a final ruling on the Texas law. Going through the anticipated appellate process could take months.

Wednesday’s discussion turned heated at times.

Sen. Catherine Miranda, D-Phoenix, took specific exception to Kavanagh’s claims about criminals, saying he effectively was calling Hispanics criminals. She said that was racist.

He responded by demanding she apologize, threatening to file an ethics complaint against her.

And Senate Minority Leader Mitzi Epstein, D-Tempe, objected when Kern said some lawmakers want to deal with border security while “the other side is nothing but gobbledygook and talk.’’

Sen. T.J. Shope, whose mother was born in Mexico, was explaining his support of the measure and his belief HCR 2060 won’t be used by police for racial profiling.

“I want to address you and tell you, to our law enforcement community, that this Latino senator doesn’t think that you are sellouts or racists whose only motivations for wearing a badge are to pull over your fellow Latinos,’’ said the Coolidge Republican. “I say that as your senator and also as somebody who looks like you.’’

Shope said there is “out and out racism’’ in the Senate “where we question the motivation of our fellow men and women all of the time and always, always going for the jugular of racism.’’

That resulted in several individuals in the gallery shouting “Stop the Hate’’ and “Shame.’’ Security removed them from the building, and Senate President Warren Petersen shouted back at them: “You are lawless.’’

There also were political charges, with Democrats saying if Republicans were really interested in border security they would support federal legislation that includes $20 billion for border security and provides authority to expel migrants when the number of crossings exceeds a specific number.

“What this really is is cover for Trump,’’ said Sen. Juan Mendez, D-Tempe, pointing out that the former president urged Republicans to kill the congressional measure.

On the other side, Sen. Shawnna Bolick, R-Phoenix, said the blame for the border problems belongs to Democrats and that “Katie Hobbs continues to play politics.’’