What’s wrong with SB 1070

joeSupposedly SB 1070 is going to do something about the issue of illegal immigration into Arizona.

But that’s not what SB 1070 is really about. It is about a renegade sheriff trying to impose his priorities on the rest of the state.

Prior to SB 1070 we had Maricopa County Sheriff Joe Arpaio trying to make catching illegal aliens a big deal for his police force. Chasing illegals got him lots of news coverage as the toughest sheriff in the country. Like there was a national job of Sheriff of the USA.

In the rest of the state the view was that even though the person violated federal law by climbing over the border fence, it was not a state law violation.

Thus so as long as that person did not commit any state or local crime, they weren’t any different than a resident or a tourist from Tucson or New York. It was up to the feds to enforce federal law.

The main reason for that was that local jurisdictions had their hands full of real criminals, and didn’t have jail space for holding undocumented aliens. At $50 to close to $100 a night to hold someone in jail, local jurisdictions would rather spend that money putting rapists and robbers and wife beaters and murderers and drunk drivers in jail instead of maids and gardeners.

People keep saying “but they are here illegally !!!”.

Yep. And there are a lot of other petty violations of law that go ignored and un-enforced because priorities are priorities. We do not see a cop at every stop sign to enforce that law, do we?

Virtually all of Arizona’s local jurisdictions did not put enforcing immigration law at the top of their priorities of things to do.

Opponents of illegal immigration call this a “sanctuary” policy.

It is no such thing. It is simply enforcing the law to protect the safety of people, and illegal entry is not a physical threat to residents like being shot at or robbed.

For whatever reason, Arpaio and his buddies wanted to re-prioritize local law enforcement to turn local police and county deputies into Border Patrol agents.

It shouldn’t surprise anyone that Sheriff Joe Arpaio is the godfather on SB 1070.

Now lets look at what usually happened on the street before SB 1070:

When someone is stopped for some other reason than looking like an illegal alien, and it turned out there is a probability of the person having gotten into the country illegally, the local cops call the Border Patrol and turn the person over to them.

The frustrating thing about this for local jurisdictions has been waiting for the Border Patrol to show up and take custody of the suspect.

The whole issue from the local perspective was about use of limited resources…not going to turn the local cops into the Border Patrol and end up having to feed and house undocumented aliens at local taxpayer expense.

So lets look at SB 1070.

The core of the law is that being in Arizona illegally is now a state crime, not just a federal crime. So by violating federal law of entering the country, one is in effect trespassing into the state.

The whole point of making being illegally in Arizona a state crime is to force local jurisdictions to take on the role of the Border Patrol. This is to vindicate Arpaio’s priorities and cram his views down on the rest of law enforcement in the state that don’t share his priorities of what endangers Arizonans.

Absolutely local police enforce state law…and there are lots and lots of state laws on the books to enforce. The reality is law enforcement has always triaged what laws get attention to enforce and what laws don’t. It is against the law to run a stop sign, but we don’t see cops at every intersection with a stop sign enforcing that law because there are better things for the cops to be doing.

There is only so much time in the day and only so many cops on duty at any given moment…so there is a priority system in place. That’s why if you are in the midst of being victimized by a crime, or there’s been a violent criminal act, you’ll get a response in 5 minutes…but if you are reporting someone stole your bike, it might take a few hours to get a response.

This is also why there has been so much opposition from local law enforcement around the state because Arpaio and the legislature are dictating law enforcement priorities for political purposes, and actually endangering Arizonans by diverting police resources to enforcing federal immigration law.

In its first version, SB 1070 sought to mandate a legal status check as the first level of contact with anyone…making SB 1070 what is called a “primary” offense like getting caught running a red light. The outcry caused the bill to be amended to making illegally being here a “secondary” offense like after you are stopped for running the red light and the cop finds out you aren’t wearing your seat belt, you get nailed for the seat belt violation. Point is the cops can’t go out looking for violators of illegally being here, but once you are stopped, they must then check for the secondary violation.

Actually out on the street according to most cops, the secondary check for legal status has been quietly going on for a long time. There is no such thing as a “sanctuary” city in the state.

Under Sb 1070 supposedly the local jurisdictions can take the illegal people into custody and prosecute them as violators of the state law.

SB 1070 attempts to force local governments to incur the resource allocation of enforcing federal immigration law and to end up feeding and housing undocumented aliens until the feds take over.

Ain’t gonna happen folks,  unless you want to seriously raise your taxes.

I will bet that outside of Arpaio, no local jurisdiction is going to book anyone for a violation of SB 1070 and pay the cost of jail time unless that person is a suspect in a more serious crime.

This element –making it a state crime for violating federal immigration law–has really serious Constitutional problems in that the state is reaching into federal jurisdiction and will likely be the major reason the courts will shoot it down. My bet is an injunction will be issued against this law under the federal pre-emption doctrine.

A really problematic part of SB 1070 is the provision that allows a citizen to sue the local jurisdiction if they don’t think the local cops are being rigorous about enforcing SB 1070.

Ask yourself…why is this in Sb 1070 in the first place?

Does Pearce and Arpaio have some lawyer buddies who want to get rich suing cities, towns and counties for not jailing illegal aliens?

Is it a threat to local jurisdictions that they must follow Arpaio’s priorities in use of law enforcement resources?

 This is going to be a serious pain in the ass for local cities and towns and counties as the rabid nativists sue because local cops are not pretending they are Sheriff Joe.

The courts are very likely to throw out these suits as it is not the legislature’s business to decide which law gets priority for enforcement resources.

Finally there’s the issue of racial profiling.

I personally had a very interesting experience being the City Attorney in a border city. The Border Patrol treated every Hispanic in the city like an illegal alien. Profiling exists.

What was really interesting was, in this 90% Hispanic city, the legal Hispanic residents didn’t like illegal entry and would point out the illegals in a second, as long as the legal residents were treated with respect.  Hint, illegal entrants mostly don’t dress as well as we do.

It took a while for the Border Patrol to understand all Hispanics are not illegal aliens, and to learn to work within Hispanic communities. After a few years of  vastly improved relations within the city, I had Hispanic neighborhoods asking the city to blade roads around the edges of subdivisions with a lot of illegal traffic to assist the Border Patrol getting into the areas.

I think the real issue is, except for Arpaio, virtually every law enforcement officer in the state would rather not have to deal with illegal entry as a law enforcement issue and not get anywhere near a charge of racial profiling. That’s what the Border Patrol is supposed to do.

Does SB 1070 create a hostile climate for Hispanics in the state? Absolutely, and that is exactly what Senator Pearce, Arpaio, and their buddies intended. They freely admit that wanted to encourage illegal residents to leave and they are probably happy that is working.

But the really sad thing about this whole kerfuffle is that there are a lot worse criminal problems in the state than illegally entering it, and Pearce, Arpaio et al have made this issue paramount over real crime problems like the guys armed with automatic weapons running around the borderlands.

Those commentors who rant about the illegality of the crossers and demand draconian solutions are being manipulated by a bunch of mean spirited opportunists who are using this to gain power. You are more at risk from Arpaio than from the illegal entrants.

Meanwhile, when the dust settles, you will find that Sb 1070 is worthless in doing anything about illegal entry, our state’s economy has been harmed, a lot of people were demonized, and you still have a mad dog sheriff sitting in Maricopa County who makes it his life’s work to harrass Mexicans.

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About Hugh Holub

Attorney and writer.
This entry was posted in border issues, immigration law reform, Joe Arpaio, SB 1070. Bookmark the permalink.

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