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Sanctuary City backers sue, claim Tucson officials illegally 'electioneering'

Claiming that Tucson officials are illegally “electioneering” to urge “no” votes on the initiative, backers of the Prop. 205 “Sanctuary City” measure filed suit Wednesday.

Under Arizona law, it's illegal for government officials to use public resources to attempt to effect the outcome of an election. The People's Defense Initiative, the group pushing Tucson to adopt an ordinance limiting local cooperation with federal immigration authorities, alleges that some city officials have done just that.

The officials have said they are just providing even-handed information about the potential impacts if the initiative is passed, without specifically urging any votes. They have said the measure may cost the city a huge chunk of its budget — potentially millions in state-shared revenue and federal grants, and block Tucson police from working with federal law enforcement investigating non-immigration crimes. Backers have said that the officials are exaggerating the potential problems, and using public resources to attempt to persuade voters.

While the initiative group has been complaining about the statements made by city officials all year, the lawsuit was triggered by a memo released Tuesday by City Manager Mike Ortega, Police Chief Chris Magnus and City Attorney Mike Rankin.

Also named in the 15-page suit is City Councilman Steve Kozachik.

The suit alleges that a memo by Rankin, released in January, improperly provided reasons to vote against the "Tucson Families Free an Together" initiative, and should have been sent privately to Mayor Jonathan Rothschild and members of the City Council if it were legal advice, rather than being released publicly.

It also says that a series of newsletters and public statements by Kozachik — and public statements by Rothschild, who is not named as a defendant — have violated the law by using public resources to campaign against the measure.

Tuesday's memo — in which the three city officials reiterated previous legal issues they have raised regarding the potential impacts of the initiative if it is passed — is also cited in the lawsuit, which was filed late Wednesday.

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"We have a right and a responsibility to educate the public. That is all any of us have done," Kozachik told TucsonSentinel.com when informed of the suit Wednesday. "I have suggested they do their homework and make an educated decision."

Ortega declined to comment.

Other city officials did not immediately respond to requests for comment.

Joel Feinman, one of the initiative organizers, said Wednesday that they want a court to order the officials to stop using any public resources to attempt to affect the outcome of the election. Ballots that include the measure will begin to be sent out this week in the all mail-in city election that includes a race for mayor and three City Council seats.

A group of local Republicans tried to get the measure tossed off the ballot, employing a variety of arguments, but were rejected by a judge in August.

City officials questioned 'sanctuary city' from the start

Rankin wrote back in January that parts of the initiative are in “direct conflict” with Arizona’s controversial SB1070.

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 self-declared "sanctuary city."

The measure does not include any definition of what a "sanctuary" would be, but would specifically limit the ways in which the Tucson Police Department can work with federal immigration and law enforcement agencies.

Zaira Livier, the executive director the People’s Defense Initiative, which is managing the campaign, said when launching the public petition drive 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 in January, 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.

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Along with City Manager Ortega and TPD Chief Magnus, Rankin reiterated concerns with the initiative in this week's memo. The three emphasized their interpretation that the measure would keep Tucson police from working with any federal law enforcement agency — including investigating shootings using ballistic evidence, working with the feds to stop "child sex rings and forced labor trafficking," and other crimes — unless each of those agencies sign an agreement to relinquish arrest authority inside the city.

Organizers said they specifically wrote the measure to withstand challenges, that it 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. Later, the 9th Circuit Court of Appeals allowed the Trump administration to downgrade grant applications from cities that limit cooperation regarding immigration enforcement.

Livier said as they turned in petitions in early July that during the signature drive, many people asked, "What does 'sanctuary' mean?" 

"And almost every person that asked this question signed because the proposed policies made perfect sense to them," Livier said.

The initiative, if passed by voters, will add a new section to the Tucson City Code, mainly placing restrictions on law enforcement activities.

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

No current members of the Tucson City Council have publicly supported the measure. Of the candidates running for mayor and City Council, only the Green Party members and Ward 1 Democrat Lane Santa Cruz have said they favor it. Democratic mayoral candidate Regina Romero has said she is "vehemently opposed" to the measure, and independent candidate Ed Ackerley is also against it.

In their own memo in response to Rankin's, the group behind the initiative argued that the provisions would not "hinder" law enforcement, and that the proposed ordinance would bring Tucson police policies "into line with long-standing federal guidelines." 

If the initiative is approved by city voters and becomes a city ordinance, the state attorney general could file a lawsuit in the Arizona Supreme Court. However, the authors of the initiative, including Billy Peard, former staff attorney with the American Civil Liberties Union of Arizona, have said that the law was "custom-crafted" to solve these issues, and other legal observers have said that the initiative is "very crafty."

Josh Nuñez, a Phoenix attorney who specializes in immigration law, said he does believe there is a "cause for concern with the initiative.”

"However, I think that the way that the initiative is written is very crafty. It’s written in a very smart manner that I think allows for the possibility that if the people of Tucson vote in favor of initiative, then it might stand a constitutional challenge," he said.

Section 41-194.01 of the Arizona Revised Statute requires the state attorney general to investigate whether any ordinance adopted by a city violates state law if any member of the Legislature requests an investigation. That would allow the proposed amendments on the petition to remain open to investigation.

If the ordinance adopted by Tucson is found to be in violation of state law or the Arizona constitution, the attorney general would be required to file a lawsuit in the Arizona Supreme Court.

State Rep. John Kavanagh, R-Fountain Hills, was one of the prime sponsors of the law granting legislators investigative powers. Kavanagh said earlier this year that if the proposed amendments become city code, the ordinance “would be illegal on its face” and he would make a request to the attorney general to investigate.

“The ordinance proposal that we’re talking about in Tucson was really custom-crafted because of the legal situation we have here in Arizona with regard to SB 1070 and other measures,” Peard said.

SB 1070 was a Senate bill first introduced in January 2010 and signed into law by then Gov. Jan Brewer in April that year. Among the many provisions in SB 1070 was the controversial Section 2(B) that required local law enforcement officers to check the immigration status of a person they encountered in a lawful stop if they had reason to believe that person was in the country illegally.

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The Department of Justice eventually sued Arizona challenging the constitutionality of the law. In 2012, in the case United States of America v. Arizona, the Supreme Court struck down some sections, but upheld Section 2(B).

Whether the provisions are in direct conflict with Section 2(B) will be one of the major decisions to be made if a court challenge is filed against the provisions, Nuñez added.

After many years of litigation with civil rights groups, and concerns raised by activists over the widespread use of racial profiling in conjunction with SB 1070, Arizona Attorney General Mark Brnovich issued a guidance on Sept. 15, 2016, as part of a settlement after the Supreme Court ruling, as to how state and local law enforcement agencies can carry out the duties of the section without violating anyone’s civil rights.

One of the more consequential challenges Rankin outlined in his memo pertain to the provisions in the initiative that center on Section 2(B) of SB 1070.

Section 17-82(d) of the initiative states that “an officer shall not participate in any law enforcement activity, investigation, or enforcement action, the purpose of which is to determine a person’s immigration status.”

Rankin states in his memo he believes that section of the initiative is in direct conflict with A.R.S. Section 11-1051, which requires a law enforcement officer to make a reasonable attempt to determine the immigration status of the person in certain situations.

Peard said, “The purpose of local police is to ferret out crime, is to identify, detect, investigate local crime and traffic offenses. Immigration status is not a crime per se, it’s a civil offense under federal law, outside the purview of what local officers ought to be doing.”

The proposed amendments do not prevent officers from doing the minimum required under current state law, he said.

TucsonSentinel.com’s Paul Ingram and Cronkite News reporter Julian Hernandez contributed background to this report.

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1 comment on this story

Oct 11, 2019, 8:09 am
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This morning, I actually DON"T LIKE WHAT I"M READING.  The initiative ought to be to investigate, individually, all these people waging the cultural assault on Tucson and Pima County.  The subjects, tone, and symbols are lifted whole from the Students For A Democratic Society and “Weathermen” of the ‘60s & ‘70s.  Where is the Symbionese Liberation Army ?  Overall, I would prefer to believe in UKranian influence, rather than think that these low-lifes are other Americans living and wandering among us.  I encourage readers to Google “The People’s Defense Initiative”, and pursue the search into who these folks are, what they stand for, and ask yourselves, “Are They Us ?”

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