WHAT IS SB1070?
Senate Bill 1070 (full text) was legislation introduced in 2010 that, in part, attempted to establish enforcement of immigration matters by state law enforcement officers. A plain text fact sheet, created by the State Senate Research unit entitled, “Fact Sheet for S.B. 1070,” provides a synopsis of the provisions outlined in SB1070.
After adoption, it was immediately challenged in court, which eventually rose to the United States Supreme Court for final consideration. The Supreme Court held that numerous provisions of the statute were exclusively functions of the federal government, and the Court enjoined (stopped) enforcement of those sections. What remains enforceable by Arizona law enforcement officers is A.R.S. 11-1051.
WHAT IS THE TUCSON POLICE DEPARTMENT’S POLICY REGARDING IMMIGRATION ENFORCEMENT?
Sworn members of the Tucson Police Department have taken an oath to support the Constitution of the United States and the Constitution and laws of the State of Arizona.
The Tucson Police Department’s General Orders define the rules of conduct for our membership. General Order 2300: Immigration Policy specifies the Department’s expectations of our members concerning immigration matters.
WHAT IS THE TUCSON POLICE DEPARTMENT’S POSITION ON PERSONS WHO ARE UNLAWFULLY PRESENT IN THE UNITED STATES?
Mere presence in the United States without authorization is a civil matter – involving no violation of criminal law - that is the exclusive jurisdiction of the federal government. The United States Supreme Court has established that the issues of immigration into the United States are solely the responsibility and jurisdiction of the federal government.
The Tucson Police Department, “expressly acknowledges that mere unauthorized presence in the United States is not a criminal offense, and enforcement of such civil violations is reserved for federal authorities.” (General Order 2300)
DOES RACE OR ETHNICITY HAVE ANY BEARING ON ENFORCEMENT?
Using race or ethnicity as a factor in the determining reasonable suspicion regarding immigration status is strictly forbidden both in state law and in the Tucson Police Department’s General Orders:
“A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.” (ARS 11-1051.B)
Tucson Police Department General Orders define racial profiling and specifically prohibit the practice as follows:
“The reliance on race, skin color, and/or ethnicity as an indication of criminality, including reasonable suspicion or probable cause, except when part of a specific suspect description. Racial profiling is prohibited.” (General Order 2310)
The Tucson Police Department has long had rules against unlawfully using race or ethnicity in law enforcement:
“Police action based upon personal, societal, or organizational biases or stereotypes constitutes bias-based policing. Examples of biases and stereotypes include but are not limited to those based on race, color, religion, ancestry, sex, age, disability, national origin, socioeconomic status, sexual orientation, or marital status.
Except where race or ethnicity is part of an identifying description or characteristic of a possible suspect, any consideration by members of the agency of race, color, or ethnicity in deciding whether to stop, question, search, or arrest a person constitutes racially-biased policing.
Bias-based policing, including but not limited to biased based profiling in traffic contacts, field contacts, asset seizure and forfeiture, is expressly prohibited, and shall result in corrective action or discipline.” (General Order 2200)
HOW DOES THE TUCSON POLICE DEPARTMENT ENFORCE THE REQUIREMENTS OF ARS 11-1051?
When a person is arrested for a violation of state or local law, officers are required to verify the arrestee’s immigration status with the Federal government prior to release from custody. Additionally, the law states that officers must “make a reasonable attempt” to determine the immigration status of a person who is lawfully stopped, detained or arrested, if officers have reasonable suspicion to believe the person is unlawfully present (ARS 11-1051.B). In conducting any action related to a person’s immigration status, the Tucson Police Department takes into account the enforcement priorities of the Federal Government for persons who are on the Terrorism watch list, who have previously been deported by the United States, and who have prior convictions for serious felony crimes.
When officers interact with persons who are not suspected of committing a violation of state or local law, officers have no authority to take action based upon suspicion about immigration status. In fact, our members are under orders to release people who have committed no state or local criminal violations:
“When reasonable suspicion exists to believe a detainee is unlawfully present in the U.S. but there are no state or local criminal violations, or any other lawful basis to continue the detention (i.e. completion of a traffic stop), the officer shall release the detainee without delay.” (General Order 2335)
WHAT DOES THIS MEAN FOR SOMEONE JUST WALKING DOWN THE STREET?
Department members are encouraged to speak with people throughout their shifts. These contacts, referred to as “consensual contacts,” are voluntary interactions between Department members and the public they serve. Department members are trained that unless there is reasonable suspicion that a crime has occurred, is occurring, or is about to occur, that a person has no obligation to engage in a consensual contact:
“Officers have discretion to approach a person and seek to engage that person in a voluntary conversation. The person contacted is not required to answer questions or produce any identification or other documentation, but may choose to do so voluntarily. If during the contact, the officer develops reasonable suspicion that the person has committed, is committing or is about to commit a crime, then the officer should proceed as directed in General Order 2330.” (General Order 2321)
HOW DOES SB 1070 IMPACT VICTIMS AND WITNESSES?
Our Statement of Principle is: “The Tucson Police Department is committed to the safety and welfare of all persons within the City of Tucson.” We recognize that ARS 11-1051 has caused some mistrust and concern among persons who may not yet have obtained legal immigrant status. The Tucson Police Department is committed to vigilant service to all members of the public without regard to immigration status.
In the policy statement of General Order 2310, the importance of public trust and assistance is clearly articulated to our members:
“The need for community trust and cooperation is an essential component of effective policing and public safety. In furtherance of this principle, victims and witnesses of crime should not be the focus of immigration inquiries and should be encouraged to cooperate in the reporting and investigation of crime.” (General Order 2300)
General Order 2331 directs members, again, that investigating the immigration status of a victim and witness may hinder participation in an investigation:
“The officer should consider when or whether to investigate immigration status in light of the need for suspect, victim and witness cooperation in an investigation (this consideration is not limited to the investigation for which you have detained the person, but rather overall cooperation with law enforcement). For example, domestic violence situations or complex investigations of money laundering, human trafficking and drug smuggling may require significant cooperation of those involved.” (General Order 2300)
WHAT DOES THIS MEAN FOR CHILDREN OF IMMIGRANTS AT SCHOOLS?
School Resource Officers have been specifically ordered not to ask minors about immigration status. (General Order 2337) Moreover, unless the child is physically detained (booked into the Pima County Juvenile Correctional Center) members have been directed not to contact Immigrations and Customs Enforcement:
“Students arrested on a school campus shall undergo a limited criminal history check, via TWX. Any student who meets the enforcement priority criteria is not eligible for alternative release procedures and will be booked into PCJCC. Officers shall not contact ICE/CBP at a school and shall not request ICE/CBP response at a school.” (General Order 2341)
EFFECTS OF ARS 11-1051 (SB1070) ON INTERACTIONS WITH TUCSON POLICE OFFICERS
A police officer can try to talk to a person about any topic by having a consensual conversation. The person may choose to talk with the officer and possibly provide information, but they do not have to do so.
SB1070 did not change the manner in which officers may interact consensually with community members, and does not require law enforcement to make any citizenship inquiries. A person does not have to interact with an officer in this situation or provide any information.
If a police officer tells a person that they must do something, stops them, or tells them they are not free to go about their business, the officer must have “reasonable suspicion” that the person is involved in criminal activity.
During such a stop or detention, SB1070 requires that police officers make a “reasonable inquiry” about the stopped person’s citizenship IF they also have reasonable suspicion that the person is unlawfully present in the United States. Tucson Police officers are prohibited from considering a person’s race or ethnicity in determining whether there is probable cause to believe the person is unlawfully present in the United States.
Certain identification may be provided to dispel the police officer’s suspicion about the person’s immigration status:
- A valid Arizona Driver’s License
- A valid Arizona non-operating Identification License
- A valid Tribal Enrollment Card or other form of tribal identification
- If the entity requires proof of legal presence in the United States before issuance; any valid United States (U.S.) federal, state, or local government issued identification. Ex. Valid U.S. Passport.
If the person is not able to provide one of these documents or any other helpful information, the officer may contact Customs and Border Protection for additional information, or to assist in investigating and enforcing possible violations of immigration law. CBP will be called only if there is information that the person falls within the federal enforcement priority criteria.
When an officer has probable cause to arrest a person for a violation of the law, the person can either be taken to jail and “booked” for the offense( where they will have initial appearance in court), or for misdemeanor crimes may be allowed to sign a citation promising to appear in court and be released from custody.
SB1070 requires police officers to “determine” a person’s immigration status before they can be released from custody. A determination can only be made by contacting federal officials for such information. However, any contact with Customs and Border Protection will only be made if the person falls within the federal enforcement priority criteria.
The mission of the Tucson Police Department is to serve the public in partnership with our community, to protect life and property, prevent crime, and resolve problems.