Police training: Racial profiling not allowed under SB 1070
Villaseñor: Law is 'drain on resources'
Arizona police should not use race when deciding to ask about immigration status, training material from a police training agency released Thursday says.
Tucson police chief Roberto Villaseñor says Arizona's new SB 1070 will be a "drain on resources," and that he's "absolutely certain that we are going to be accused of racial profiling no matter what we do" under the new immigration law.
The Arizona Peace Officer Standards and Training Board (Az POST) released training materials - including a video and documents - to teach Arizona police how to enforce the controversial anti-illegal immigration law.
SB 1070 is set to take effect July 29, barring a court challenge that could stay enforcement.
The law has raised concerns of racial profiling and has become a hot political issue throughout the nation.
"From Day One, I've had concerns about the law," Villaseñor said. "I still have concerns about the impact on the community."
Police around the state, including Villaseñor and Pima County Sheriff Clarence Dupnik, have previously said that they will not use race as a deciding factor in enforcing the law.
"I'm absolutely certain that we are going to be accused of racial profiling no matter what we do with this law," Villaseñor said. Law enforcement is "being set up" under SB 1070, he said.
"Make no mistake, we are going to enforce this law. If there is not an injunction, we will enforce" SB 1070, the chief said at a press conference Thursday.
Deputy Jason Ogan of the Pima County Sheriff's Department said that arresting illegal aliens is "business as usual" for the department. "This course will be more of a refresher for us," said Ogan. "It's not anything we're not already doing."
The training material from Az POST stresses avoiding race as a single factor in "reasonable suspicion" about a person's immigration status.
"Officers shall not consider race or color in determining reasonable suspicion that a person is unlawfully present in the United States. If an officer does not have reasonable suspicion without reliance on race or color, then reasonable suspicion does not exist," the training guidelines say.
The training includes a list of factors that can be relevant to an officer's decision to question regarding immigration status, including:
Police should be able to justify any questioning about status under the guidelines: "Officers must be able to list the specific facts and circumstances that lead them to suspect that the person is unlawfully present. It is the totality of the circumstances that determines whether there is reasonable suspicion."
"Not all of these elements are necessary to prove reasonable suspicion. They are not the only elements," said Villaseñor.
"A lot of these elements could be the same as those used to establish reasonable suspicion for (criminal) conduct - not just for (immigration) status," said the chief.
Any question of status should not be raised after a person provides an ID from a governmental agency that requires people to prove they're in the country legally, the training material says. That includes an Arizona driver's license.
Whether a license from a state that does not require such proof would end status questioning has been a concern of many opposed to SB 1070.
Officers cannot question suspects about their immigrations status until after reading them their Miranda rights, if they are suspected of committing another crime.
Officers should not question victims or witnesses about immigration status, the material says. Vehicle passengers should not be questioned during traffic stops, unless they have committed a separate violation.
Villaseñor has concerns that police across the state may not enforce SB 1070 the same way. "The law is not clear" about how to handle suspects who are arrested, he said, "Different agencies may enforce it differently."
"At least we have a good similar starting point across the state" with the release of the training material, Villaseñor said.
TPD now has "the burden of federal law enforcement" as well as its normal police duties, Villaseñor said.
"This is at a time when we're down 125 officers," Villaseñor said. "The drain on resources is my biggest concern."
"One of our biggest issues is how to respond after an arrest," Villaseñor said.
TPD is still working out how to handle the "shall determine status" of those arrested section of the law, Villaseñor said. How to efficiently contact the federal agencies who can verify status is an issue for the department.
"We made 36,000 arrests last year. If it takes an hour to verify someone's status, that's 36,000 extra hours of work. That's 18 officers."
Villaseñor declined to speculate on the budget and time impacts of determining the immigration status of those who are not arrested, but suspected of being in the country illegally.
"I don't know. We'll have to see how that plays out," he said.
The Sheriff's Department also has some questions about how to enforce SB 1070.
"It's an open question how we will implement 1070 when we make an arrest," and need to check immigration status with a federal agency, said Ogan.
"We want to have the county attorney look over (the training material) and see what exactly we are required to do," he said.
The statewide law enforcement training center produced the 90-minute video and training documents for distribution to all Arizona police agencies. The SB 1070 training course was released to the public on Thursday morning.
Law enforcement officers are not required to participate in Az POST's SB 1070 training, although watching the video will count towards the eight hours of training every officer must complete annually.
The Tucson Police Department will require its officers to complete the training.
TPD will begin training its commanders on July 6, with officer training sessions beginning July 9, Villaseñor said. 17 sessions for officers will be held, and the training on SB 1070 is required for Tucson cops.
Most training will be conducted on overtime, to maintain the level of police on patrol, Villaseñor said. The chief declined to estimate the cost of overtime training. "I don't have that number," he said.
The Pima County Sheriff's Department will also require its deputies to complete training on SB 1070.
The department will begin training deputies "sometime early next week," said Ogan. He did not offer an estimate of how much the training would cost.
Watch the video
Excerpts from the training documents
The statute applies when a law enforcement officer makes a lawful stop, detention or arrest of a person, and reasonable suspicion exists to believe the person is both an alien and unlawfully present in the United States. The officer is required to make a reasonable attempt, when practicable, to determine the immigration status of the person who is stopped. There is an exception if the officer believes that the determination may hinder or obstruct an investigation. Persons who are arrested may not be released unless their immigration status is verified by Immigrations and Customs Enforcement (ICE), Customs and Border Protection (CBP), or a 287g certified officer.
From a law enforcement perspective, A.R.S. § 11-1051 affects the work done by officers in two situations:
1. When a law enforcement officer has made a lawful stop, detention or arrest of a person for a crime or offense based on reasonable suspicion or probable cause and subsequently develops separate reasonable suspicion to believe the person is an alien and is unlawfully present in the United States.
2. When an officer makes an arrest requiring determination of immigration status.
"A. No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.
B. For any lawful stop, detention or arrest… in the enforcement of any other law or ordinance of a county, city or town or this state… "
This section applies to suspected violators and not to victims or witnesses. The stop, detention or arrest must be based on reasonable suspicion or probable cause of a criminal or civil violation or the violation of a local ordinance.
An officer has the authority to have a voluntary contact with any person without implicating constitutional rights. This statute does not expand or restrict that authority in the context of immigration enforcement. However, officers must understand that actions motivated by race or national origin will be subject to close scrutiny under the law.
"…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States…"
The focus here is on reasonable suspicion that a person is an alien and unlawfully present in the U.S., not reasonable suspicion of criminal activity. Officers must be able to list the specific facts and circumstances that lead them to suspect that the person is unlawfully present. It is the totality of the circumstances that determines whether there is reasonable suspicion.
In all lawful stops in which there is reasonable suspicion/probable cause of a civil traffic or criminal violation (includes drivers of vehicles stopped for traffic violations; does not include passengers unless they have committed a separate violation), the first step the officer should take is to ask for identification. If the person presents presumptive identification (see discussion below), the issue of whether he or she may be unlawfully present in the United States is resolved and no further immigration inquiry is necessary in the absence of additional facts or an arrest requiring verification.
In establishing whether reasonable suspicion exists that the person is an alien and unlawfully present, the officer may consider all relevant facts and circumstances, including:
Officers shall not consider race or color in determining reasonable suspicion that a person is unlawfully present in the United States. If an officer does not have reasonable suspicion without reliance on race or color, then reasonable suspicion does not exist.