City atty: 'Sanctuary city' initiative may violate SB1070

Even as organizers work to collect signatures for a citizen initiative that aims to make Tucson a “sanctuary” for immigrants, City Attorney Mike Rankin wrote on Wednesday that parts of the initiative are in “direct conflict” with Arizona’s controversial SB1070.

On Saturday, organizers with the Tucson Families Free and Together campaign hosted a kick-off party and pop-up shop at the Historic Y on N. Fifth Avenue. While vendors sold food, books, and vintage clothing, the organizers began collecting just some of 9,241 signatures they need to get on the November ballot.

While Tucson and other cities, like Phoenix, have already modified their police general orders to protect immigrants and share less information with immigration authorities, this measure would make Tucson the state’s only sanctuary city. A similar move is currently in the works in Flagstaff.

Zaira Livier, the executive director the People’s Defense Initiative, which is managing the campaign, said that protecting people in the country illegally in Tucson is “exactly what we’re trying to do.”

Rankin, in a memo prepared for city officials, said that the measure would violate state law in some aspects, and limit local cooperation with federal law enforcement agencies, such as the FBI, Marshals Service or DEA, if they did not sign a special agreement with Tucson. He also assessed parts of the proposed ordinance legally unenforceable as written, and noted the measure would provide protection against immigration inquiries for people charged with domestic violence and sexual assault.

Organizers said they specifically wrote the measure to withstand challenges, was designed to make some criminal investigations more effective, and purposefully used the word "sanctuary" in the initiative.

The notion of city-wide sanctuary policy for immigrants has been controversial for more than a decade, but under the Trump administration it has taken on new meaning, as the president and White House officials have repeatedly attacked so-called “sanctuary cities,” complaining that such policies protect criminals. At one point, U.S. Immigration and Customs Enforcement published a list of sanctuary cities, though the list was so flawed that the agency withdrew it. And, later, former Attorney General Jeff Sessions tried to withhold grant funding from cities, by was stymied by a federal judge in November 2017.

“What we really want to do with this campaign is take the goddamned narrative back. Sanctuary is not controversial; what is controversial is our police department handing over our family members and our friends to ICE or to Border Patrol,” she said. “That’s what’s controversial: ripping families apart. Saying that we want to protect people, and their human rights, that’s not controversial and we refuse to take part in that any longer,” Livier said.

The term of sanctuary has been “weaponized,” she said. “This is a sanctuary city initiative and we’re so proud, we’re not going to move away from it.”

“Why Tucson?” she said, “This the birthplace of the sanctuary movement," she said. In 1982, John Fife, then pastor of Southside Presbyterian Church, found himself at odds with the federal government when he decided to protect people from El Salvador and Guatemala for deportation, she said. 

“Why this, why a people-led citizen initiative?” she said. “This is direct democracy. We are tired of waiting, we are tired of asking.”

“They have done a really good job at making this city an immigrant-friendly city, but we can add some teeth to it,” Livier said.

Tucson's elected officials and those running for office this year have mostly played their cards close thus far about the initiative, with none going on record in full support of the campaign. The City Council and Mayor Jonathan Rothschild declared Tucson an "immigrant friendly city" in December 2016, but held back from using the term "sanctuary."

"It’s a term that has no definition and is being used to inflame passions on both sides," Rothschild said at the time.

In his eight-page memo to city officials, released Wednesday, Rankin outlined what he said were problems with the initiative's provisions, ranging from the lack of a definition for the word sanctuary to his critique that a section that allowed lawsuits based on a violation of the petition was “legally void in its entirety.”

Rankin wrote that one section, which prohibits Tucson police from “participating in any law enforcement activity” where the purpose is to determine a person’s immigration status, is “in direct conflict” with the surviving legal mandate of Arizona’s SB 1070. Another section, which restricts how TPD officers can develop reasonable suspicion, may not only conflict with SB 1070, but could be “contrary to the concept of reasonable suspicion.”

While much of it was tossed out by the courts, parts of SB 1070 remain in effect today (see sidebar).

Rankin also criticized a move to restrict Tucson police from working with federal law enforcement. “As a practical matter, it is extremely unlikely that any of these federal agencies would consent to such an agreement. As a result, the effect of this provision would be that TPD could not collaborate with any of these with any of these federal law enforcement agencies in any joint law enforcement operation,” including “joint and collaborative law enforcement relating to illegal drug and firearms trafficking.”

He also noted that the petition could cause the city a problem via Arizona’s more recent SB 1487, which says that if the Attorney General determines that a city ordinance violates Arizona law the city could lose millions in state-shared revenues. “In this instance, because the measure is an initiative, the mayor and Council would be powerless to amend or repeal its provisions without submitting a new measure to the electors for approval.”

As Rankin noted, the Trump administration has targeted so-called sanctuary cities, an effort that has been stymied by a court order, but the new petition could disqualify the city from certain federal funding.

Rankin said that section “would end these joint operations.”

Rankin wrote that TPD already maintains general orders that were “carefully developed at the direction of mayor and Council” and with the guidance of the city attorney and TPD’s chief.

The city attorney wrote that the initiative "attempts to protect detainees of certain crimes from any attempt to determine their immigration status... the crimes in question include: sexual exploitation of a minor, domestic violence, aggravated domestic violence, sexual abuse, sexual conduct with a minor, sexual assault, child molestation, child sexual abuse, and sexual misconduct by a health professional."

"Without commenting on the wisdom of a policy that would give a higher level of protection against immigration inquiries to persons detained for sex crimes against minors, I believe that this provision conflicts with the obligation imposed" under SB 1070 "in a manner that cannot reasonably be explained or defended" in court, Rankin said.

Two years ago, the Arizona Attorney General investigated Phoenix after a state legislator requested a probe under SB 1487, but agreed that police general orders there did not expose the city to sanctions, because the order “was not created for the purpose of designating Phoenix as a ‘sanctuary city,’” Rankin wrote.

Billy Peard, a lawyer with the American Civil Liberties Union here, said that Rankin’s memo doesn’t change his view that the sanctuary bill does not violate Arizona’s SB 1070.

Of the section barring immigration inquires while investigating certain crimes, Peard said "On first blush it seems odd, but it’s designed to foster and encourage the investigation of those crimes. And, ensure the civil deportation aspect doesn’t overwhelm the investigation of the underlying violent crime," Peard said.

"There are ample studies, especially in domestic violence and sexual crimes, where the victims or witness, who are worried that perpetrator might face deportation, are more likely to clam up to local police," he said.

"It’s not sanctuary for child molesters — which Rankin seems to suggest in his tongue-and-cheek comment — but it’s designed to have the opposite effect, and allow police to get to the true facts of that case," he said. In such cases, "perpetrators are more likely to be related to the victim, and therefore, in those categories, the victim or other witnesses may be less likely to be forthcoming."

Peard also dismissed questions about other potential pitfalls waiting in Arizona law.

Because the state's SB 1487 statute is so new, “we don’t know a lot about how it plays out in other scenarios, and a citizen’s petition may fall entirely outside” of the law, Peard said.

“Even though this is an action to change city law, it’s not by city officials, but by the citizens,” and SB 1487 includes actions by city officials. Peard also noted that while the city will be under the obligation to defend the provision in court, even if the city loses, a severability clause means that if parts of the sanctuary law are struck down, others can remain as law, making the bill more robust to challenges, he said.

Rankin, in a footnote to his memo, acknowledged that SB 1487's application to initiatives is yet untested by the state AG or courts. Unmentioned was the fact that under city law, an initiative only takes effect until after the mayor issues a proclamation of its passage and that it is operative.

“The bill was drafted with 1070 in mind,” Peard said. “We carefully crafted it to not cross any lines,” he said.

Livier said that they expected a challenge, but “if we prevail, we got a platform for every other city out there in Arizona to take it and adopt it, so we can get rid of SB 1070. And, they will have no choice to get rid of it.”

Two years ago, Livier was among those pushing for a sanctuary city declaration by the city, and was among those demanding that Tucson issue local ID cards to immigrants and set up a legal defense fund for migrants detained by the federal government. Neither of those proposals were included in the sanctuary initiative.

Real world effects

During the event on Saturday, Alejandra Pablos, who now faces deportation proceedings after she lost an asylum claim in federal court in December, said that she’s been “shouting for 'sanctuary' for a long time.” 

“People keep telling us that this isn’t going to happen, but we’re going to make this happen,” Pablos said.

Rosa Leal, a member of Paisanos Unidos, told an audience of about 75 how she was stopped and detained by an agent with U.S. Immigration and Customs Enforcement as a bystander during a workplace raid in Tucson. The agents, she said in Spanish, dismissed her driver’s license, and took her in a “box” to Eloy, Ariz., where she spent several days in custody. ICE agents yelled at her and others, she said, and she refused to answer their questions, only telling them her name because, as she put it, she knew her rights. 

Leal said that many of the women were in detention in the private prison in Eloy because of the “smallest things, just minor charges,” and because of that, people should press for a sanctuary law in Tucson. "If we unify, we can create change," she said. 

Mel Dominguez, a painter whose image of a family stopped by police was an auction item, said that she was stopped by police near Rita Park, and that an officer asked her for her ID even though her wife was driving. “I got lost in that moment,” she said. “They’re going to profile me?”