MESSAGE FROM SEN. RUSSELL PEARCE
Dear Friends,
SB1070 is the most comprehensive enforcement bill in the nation, it will remove all “illegal” sanctuary policies that exist in many of our cities, and it will allow law enforcement to enforce our immigration laws as intended. I guarantee this will save American jobs, reduce the cost of government, improve neighborhood safety, improve congestion, move toward smaller classrooms, shorter lines in emergency rooms, reduce rapes and molestations and reduce the number of deaths and maiming of our citizens and more. Please note that Phoenix has had a more than 50% reduction in homicides this year over last, after we passed employer sanctions and other illegal alien legislation, and our illegal alien population has decreased by twice the national average in the past two years. SB1070 will add a “trespass” provision to law enforcement giving them the ability to hold an illegal alien under state law if need be or to just call ICE and turn them over to ICE. This provision will allow our law enforcement folks to complete investigations on a suspect and not allow them to be deported before the investigation can be completed. It also goes after illegal employers and illegal aliens soliciting work and provides for law enforcement to more easily enforce public safety issues on busy streets.
Today: I decided to take SB1070 to committee and amend a couple of portions of the bill to clarify and enhance the bill, instead of exchanging HB2632 and SB1070 on 3rd read as planned and that House and Senate leadership had committed to do. This does slow down the process; however, I want to make sure my good friends that have expressed concerns have those concerns eliminated on this bill before we move it to the Governor for signature. I have had several people call with concerns over issues/language that I do not believe exists in this legislation. To be sure, I have asked for additional legal opinions and have been assured by several competent independent Constitutional attorneys, legislative council attorneys and the Maricopa County Attorney’s Office that my interpretation is correct. However, I want to be very clear and will add language to eliminate those concerns as best as I can.
We have already passed legislation to prohibit the State of Arizona from participation in any kind of National ID or Real ID Act. It is the law today and will remain the law. This bill did not and does not change that. Having said that, I will put language in the bill that enhances the clarity on these issues of concern and make it very clear that nothing in this bill will allow Arizona to be a part of any national ID program. There will be similar language to deal with concerns over improper or prolonged detention. I have had Legislative Council and the Maricopa County Attorney’s Office examine this legislation and both have assured me it does allow for any kind of National ID or expand ID requirements in any way. I have also attached the letter from the MCAO that answered my questions. I am also pasting the legal opinion from the Arizona Legislative Council at the bottom of this email.
Under federal law, emergency responders and emergency rooms are exempt under EMTALA, a federal law requiring us to transport and treat everyone including illegal aliens, in case of emergencies. I will make some minor changes to the first responders so that those good Samaritans transporting illegal aliens (little old ladies taking someone to church) are not in jeopardy in any way. They are not now under this bill, because they must be committing an additional criminal offense to the state law to be so charged, but I will make it even clearer in the new language.
Finally, the Governor’s Office is working with me on this legislation to make sure it gets to her desk in a manner that does not weaken any of the enforcement provisions that we are trying to accomplish. We should be able to have this bill heard the first of next week in Military Affairs and Public Safety Committee and then to the floor for COW and 3rd Read before sending it to the Governor all in the same week.
I will keep you appraised on our progress.
For Liberty,
Russell
ARIZONA LEGISLATIVE COUNCIL
MEMO (legal opinion)
A.R.S. section 11-1051, subsections B through E essentially empowers state agencies and employees with law enforcement authority to determine the status of illegal aliens, transfer aliens already determined to exist in the United States illegally to federal custody and arrest anyone believed to have engaged in an offense warranting legal removal from the United States. The bill section does not grant authority, either explicitly or implicitly, to detain a person indefinitely.
A.R.S. section 11-1051 states well established legal concept in the context of immigration enforcement; however, there are a few points worth noting. Subsection B allows a law enforcement entity, where reasonable suspicion exists, to presumably detain a suspected illegal alien for the purpose of determining immigration status. This is simply a restatement of the federal law already in place. See Brown v. Texas, 443 U.S. 47 (1979); see also Ramirez v. Webb, 719 F.Supp. 610, 616 (W.D. Mich. 1989) (holding that law enforcement authorities “may detain an individual for a brief period of interrogation here the circumstances create a reasonable suspicion that the individual is engaged in illegal activity. In this case, the relevant illegal activity is that the individual is illegally present in this country.”). There is nothing in this subsection that would permit a law enforcement entity to go beyond this allowance and indefinitely detain someone.
Subsection E provides that a law enforcement officer “may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.” Again, as with subsection B, this is simply a restatement of the established constitutional protections and does not go so far as to permit indefinite detention. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that “f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).
Subsection C requires the immediate transfer of an illegal alien to federal custody once state sanctions expire. Subsection D allows a law enforcement agency to transport an illegal alien in the agency’s custody to a federal facility at other points in the process.
Neither subsection authorizes indefinite detention.
The other issue presented in this memorandum focuses on whether A.R.S. section 11-1051 functionally implements the REAL ID Act of 2005 (“RIDA”). The bill would not implement RIDA. RIDA states that “a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section.” Further, RIDA states that the Secretary of Homeland Security “may make grants to a State to assist the State in conforming to the minimum standards set forth in this title.” Other than allowing the Secretary to make grants to assist states in conforming to the minimum standards, it is an all or nothing policy: a state either conforms or it is in violation of the Act.
The fact that A.R.S. section 11-1051 allows for the sending, receiving, maintaining or exchanging of immigration status information with any federal, state or local agency does not in any way invoke the application of RIDA in Arizona. Arizona, If a law enforcement entity did detain a person indefinitely, it would violate federal and constitutional law. There is nothing in A.R.S. section 11-1051 that attempts to override these federally mandated procedural protections.
Pursuant to federal and state law currently in place, could easy exchange information with any federal entity and maintain its “sovereignty” with regard to RIDA.
Finally, A.R.S. section 11-1051 narrowly restricts when a public agent can access status related information. Subsection F states four limiting “official purposes.” If a public agent or bureaucrat cannot demonstrate that he accessed a person’s information pursuant to subsections F’s official purposes, that agent would not find asylum in section 11-1051. This subsection is apparently causing some people confusion, because they are reading the paragraphs as a new requirement for governmental entities to seek information. SB 1070 does not create new mandates to seek information. These paragraphs must be read with the whole subsection. They limit the purposes for which immigration status information may be exchanged.
CONCLUSIONS
A.R.S. section 11-1051 does not allow for the indefinite detention of an individual. A.R.S. section 11-1051 is not a de facto implementation of the REAL ID Act of 2005. A.R.S. section 11-1051 limits access to information to four narrowly constructed official purposes.
