Phoenix Law Enforcement Association Prez Mark Spencers Latest Outrage, and Arpaio Surreptitiously Tapes the Feds During Latest Sweep
RIGHT TO KILL?
What's troublesome about gun nuts in this country isn't so much that they want to play with firearms and wear them on their hips with almost no restrictions. It's that many feel they have the God-given right to end every conflict with a bullet, or three.
There's often implied cowardice that goes along with all the righteous handgun-totin'. Way too often, sidearms are worn by craven men with chips on their shoulders, itching for a fight they don't have to resolve with their fists.
Take the case of Harold Fish, the ex-Tolleson high school teacher convicted of second-degree murder by a Coconino County jury and sentenced to 10 years in the 2004 death of Grant Kuenzli.
Kuenzli, 43, was a former fire inspector living, along with three dogs, out of his car in the Coconino National Forest when he encountered Fish. Fish, then 59, was completing a daylong hike when he came across Kuenzli and his dogs.
Two of the three canines ran at Fish with teeth bared. Fish dropped his walking stick and went for his 10-millimeter Kimber semiautomatic handgun, firing a warning shot into the ground in front of the dogs, dispersing them.
Then, Kuenzli ran at Fish, but he didn't get a warning shot. Instead, he got three hollow-point bullets in the chest. Supposedly, Kuenzli threatened Fish, yelling that he wanted to kill him, screaming profanities and swinging at Fish, "with his eyes crossed, looking crazy and enraged," as court documents recount it.
Later, it was discovered that Kuenzli had a screwdriver in his pocket, and a temper, according to some. Others remember him as a kind, caring man who volunteered with the local Humane Society. But Fish didn't know that at the time. He just knew that Kuenzli was advancing on him, and he obviously perceived the man as threatening.
Problem is, if that's all it takes to kill someone in Arizona, that's a pretty low threshold. Even if the guy is threatening. Sheesh, whatever happened to fistfights? Fish had a walking stick; did he think of using that? What about the gun? Couldn't he have popped Kuenzli upside the head with it? Or better yet, just moved out of the way of the oncoming, would-be assailant?
Nah, Fish just plugged the guy. If Kuenzli had been coming at Fish with a knife or that screwdriver, Fish would have been in his rights. Still, Fish contends he had no other choice. When Dateline NBC's John Larson asked Fish why he didn't hit Kuenzli instead of killing him, Fish's answer was revealing.
"You know, I just didn't think it would work," Fish told Larson. "To be honest with you, it didn't really even occur to me."
Of course it didn't occur to Fish — because he had a gun. And the gun was Fish's first and last line of defense, as it is with most firearm lovers. They see no problem with blowing someone away in an altercation that need not escalate to that level.
It explains why Fish's case is a cause celebre among gun advocates. The National Rifle Association kicked in an unspecified amount to Fish's legal fund. Blogs such as the "Pro-Arms Podcast" noted that Fish was defending himself from "an irate attacker" and kvetched, "You can be doing everything correctly" and still wind up in court.
"Imagine how this could happen to any of us," the blog stated.
Similarly, the "Harold Fish Defense" Web site cheered Fish when his verdict was reversed on June 30 by the Arizona Court of Appeals, and it criticized Attorney General Terry Goddard's office for appealing that decision to the Arizona Supreme Court.
"What possible purpose does that serve?" asked the blog's host, who is not directly affiliated with Fish, BTW. "Let's keep this in mind in future elections."
Yes, Fish is a free man after serving three years of his sentence. And Coconino County Attorney David Rozema has announced there will be no new trial because the Legislature passed a law this year making a 2006 self-defense statute retroactive to Fish's case. That statute places the burden on the prosecution to disprove a defendant's self-defense claim.
But if the AG's Office has its way, Fish will go back to prison where he belongs. Assistant Attorney General Joe Mazairz explained that the appeals court overturned the conviction because Fish's attorney wanted the jury instructed on the definitions of other crimes, including endangerment, threatening or intimidating, and aggravated assault.
"Our position is, those are simply irrelevant," Mazairz says. "Because the only issue in this case was whether the defendant's use of deadly physical force was justified. And it would only be justified by the victim's threat of deadly physical force."
There are other issues involved, such as the relevance of a victim's past. See, during the trial, Fish's defense attempted to put Kuenzli on trial, but the ploy was ultimately unsuccessful.
It's called blaming the victim. And Fish's defense attorney would have done more of it if he had been allowed. He wanted to nitpick over a restraining order issued against Kuenzli by a former girlfriend, his mental health, and the fact that he'd threatened suicide in the past. The judge blocked such nitpicking.
"That issue is very troubling to us," said Kent Cattani, chief counsel for criminal appeals at the AG's Office. "It's okay to essentially put a victim on trial if a defendant is aware of prior conduct at the time of the killing. That's the general rule. And we think [there's the possibility of] creating an exception that swallows the rule."
The point is, Fish had never met Kuenzli. He knew nothing about him. He just knew that an apparently unarmed man was running toward him, swinging his fists, and he shot him dead. This is, of course, taking Fish at his word. He killed the only other witness.
But like many with guns on their sides, Fish felt entitled to use his 10-millimeter to stop a potential brawl with a bullet — the ultimate act of cowardice. Now it's apparent that the only way justice will be done on behalf of Kuenzli and his family is if Goddard's appeal to the state Supreme Court prevails.
I'm so accustomed to the Arizona Republic's kissing up to public figures in this state that I should no longer be surprised when it paints a flattering portrait of a local politico. But the Rep's recent butter-up of Phoenix Law Enforcement Association President Mark Spencer sticks in my craw.
That's because Spencer is an inflammatory instigator when it comes to race relations and the immigration debate in this city. Whether he's acting like the pet poodle of neo-Nazi hugger and state Senator Russell Pearce at a legislative hearing or slipping an anti-immigrant story into the slimy palms of former Congressman J.D. Hayworth (KFYI 550 AM's far-right mic-spitter in the afternoons), Spencer acts as a facilitator for those whose careers are based on bashing the brown.
Last year, I pimp-slapped Spencer over his embarrassing claim to the media that the Mexican military had invaded Phoenix and was involved in a home-invasion murder/robbery. The incident was scary enough, but Spencer made it scarier by spinning it into a shootout with Mexican military operatives.
Never mind that neither Immigration and Customs Enforcement nor the Phoenix Police Department ever sussed out evidence of a Mexican military movement. Spencer dutifully went on Hayworth's radio show and announced, "We have Mexican military in our city."
Now Spencer's at it again, pushing the envelope on the Phoenix PD's Operations Order 1.4.3, which was revised last year in a compromise between pro- and anti-immigration advocates.
As things stand, according to the order, "Federal immigration law may be utilized to further a criminal investigation, with the approval of a supervisor, but will not be utilized as the sole cause for a stop or contact."
But on July 14, Spencer did a ride-along with two cops in the area of 36th Street and Thomas Road, near the Wal-Mart and Home Depot stores. Day laborers congregate in the large, shared parking lot, usually in front of Wal-Mart because Wal-Mart quietly looks the other way. Home Depot, however, allows the cops to arrest for trespassing.
Spencer and his fellow cops flagged down Alvaro Grijalva out of the roughly 40 men the police report says were loitering. Grijalva, who was in the Home Depot part of the lot, copped to looking for work and, ultimately, admitted he was in the country illegally.
Instead of arresting Grijalva for trespassing, Spencer called ICE, which told Spencer it would take Grijalva. Spencer and the other cops then transported Grijalva to ICE after getting the approval of a Phoenix PD sergeant.
Spencer later dropped dime to J.D. Hayworth, who went on the air to condemn alleged interference from Commander Chris Crokett and Public Safety Manager (read: "Police Chief") Jack Harris, who he said were kowtowing to the "open-borders" crowd. Hayworth claimed Crockett assured local pro-immigrant activist Salvador Reza that what Spencer did wouldn't happen again.
"They're relentless [against crime] unless the criminals involved are illegal aliens," cried Hayworth, lambasting Crockett, Harris, and Phoenix Mayor Phil Gordon.
Did Spencer set out to arrest a jornalero, as the day laborers are called in Spanish, just so he could turn the jornalero in to ICE?
No way, Jose, claims Spencer slyly. And, as far as the operations order goes, he feels he's in complete compliance with it, though he didn't bother to book the jornalero for trespassing.
"I think we have an obligation to take a proactive approach to enforcing the law," Spencer told me when I phoned him about Grijalva, "and to address crime at the lowest level, instead of mandating another crime or another victim . . . before ICE can get involved."
The issue is whether Phoenix cops are going to be allowed to round up everyone they suspect of being illegal and turn them over to ICE. That's what Spencer, who is an ally of Sheriff Joe Arpaio's, wants. But he's not quite dumb enough to say it. If what Spencer did to Grijalva is okay, then all Phoenix cops will have to do is stop someone on suspicion of a low-level charge — a charge they'll never have to book — just so they can inquire about the individual's immigration status.
Sound like anyone you know? A certain desert lawman known for his racial-profiling sweeps of Hispanic neighborhoods?
Thankfully, the Phoenix PD's leadership doesn't want to go down the path Arpaio treads. Nor does it want another volatile situation like it saw in 2007 at Pruitt's Home Furnishings, where there was a tense standoff between nativists and immigration activists over the rousting of day laborers in that neighborhood.
For his part, Salvador Reza believes Spencer is testing the operations order to see what he can get away with. He said he did meet with Commander Crockett, and Crockett told him, "If someone commits a crime, they're going to jail." In other words, suspects should be booked, and ICE will not get called on something petty like trespassing.
I called the commander, and he referred me to Phoenix PD media affairs, which had yet to respond to my request for a comment as this column went to print.
But it all goes back to my original point of Spencer's being an insidious well-poisoner and pot-stirrer, not the haloed, gun-in-boot-wearin' man of the Lord that the Rep presents him as. Spencer would love to turn Phoenix PD into a mini-MCSO. Cooler heads stand in his way.
Why would the U.S. Department of Homeland Security want to work with a loose cannon like Sheriff Joe Arpaio, who tapes his officers' conversations with ICE and the DHS, then turns them over to the media as a PR stunt?
That's what happened when, after Joe's wrecking crew went through the Southeast Valley on another racial-profiling sweep, Homeland Security refused to take some of the undocumented people Joe had collared because they had no criminal histories.
That's the way the new ICE memorandum of agreement is supposed to work, but Joe was huffing and puffing that it wasn't fair, that he'd been promised he could arrest all the illegals he wanted until signing the new memorandum, which he has to do in fewer than 90 days.
Homeland Security told Arpaio how to start deportation proceedings on those suspected of being in the country illegally. That's a process that would allow the suspects to be released on their own recognizance after getting fingerprinted.
"On Thursday, ICE gave the Maricopa County Sheriff's Office permission to interview the three individuals in question, arrest, and initiate removal proceedings. Instead, Sheriff Arpaio released them," said Homeland Security spokesman Matt Chandler. "On Friday night, the Sheriff's Office was given specific instructions on how to institute immigration proceedings against any individuals suspected of being in this country illegally. However [it] declined to do so."
In fact, the tape-recording in question ends with an MCSO deputy saying, "So we're just going to kick them loose then . . ."
ICE even offered Joe's goons a less taxing option: issue the suspected illegals a letter telling them to report to ICE at a later date. But MCSO said nyet to this as well.
As always, Joe doesn't want to play by the rules. But what does Homeland Security expect of an agency that allows its officers to terrify civilians while wearing black ski masks, as was the case during this three-day sweep, as well as others?
I went to Chandler and Mesa to monitor the sweep Thursday and Saturday. On Thursday, the MCSO was stopping everyone who was brown, even non-Latinos.
Native American Isla Keyoite was pulled over because the ball-hitch on the back of her truck supposedly obscured her license plate, one of the most popular excuses for MCSO deputies that evening.
She was ticketed by Sergeant Brett Palmer, who famously told Mayor Gordon and other Arpaio critics to "shut up" during an MCSO press conference. Keyoite says he seemed disappointed when she rolled down her window and addressed Palmer in perfect English.
"It blew him away," she told me afterward. "That's when he told me about the license plate. I said, 'You're kidding me.' He said, 'No, I'm not.' I got out and was looking at it. I said, 'That's ridiculous.'"
In another incident, I watched a young Latino get arrested for an unresolved ticket on his record after he was pulled for alleged faulty brake lights. I observed one of his relatives check them after he was zip-tied and taken away. The lights appeared to be in perfect working order.
Saturday, I stopped by a couple of popular, Latino-owned businesses, Los Cuates Mexican Food in Mesa and a Chandler mini-mall called Mercado Plaza del Sol. The proprietor of Los Cuates said his business was down 30 percent. At the Plaza del Sol, the owner complained it was down more than 50 percent.
All because everyone with brown skin was fearfully laying low the whole weekend.
Do the feds really want 287(g) authority misused like this? Do they really want whole cities frightened, further depressing an already depressed economy?
And on top of it all, Arpaio tapes them!
Do the feds and Homeland Security Secretary Janet Napolitano, who's Joe's jefe in all this, have no pride?
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss Phoenix New Times' biggest stories.