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SB 1070: Victims, Witnesses Can Be Questioned About Immigration Status Under Phoenix PD's Post-1070 Operations Order

The Phoenix human rights group Puente is planning a press conference and rally for Friday, March 9, to protest the Phoenix Police Department's current operations order on immigration enforcement, which allows crime victims and witnesses to be questioned about their immigration status.

The operations order was last revised in October of 2010 to come into compliance with the parts of Arizona's immigration law Senate Bill 1070 that were not enjoined by a federal judge in July of that year. 

But some local immigration activists complain that they were not advised of the changes, which give wide discretion to officers in deciding when and if to contact U.S. Immigration and Customs Enforcement.

Prior to parts of 1070 going into effect, department policy required asking all arrestees about their immigration status, but that same policy prohibited officers from making immigration inquiries of victims and witnesses. It also required cops to check with a supervisor before contacting ICE. 

The new Operations Order 4.48 mirrors the unenjoined parts of 1070, stating that the policy "will not limit the enforcement of federal laws to less than the full extent permitted by the federal law." 

Officers are advised to "exercise discretion" during consensual contacts with victims and witnesses, but they are not prohibited from asking questions about the immigration status of those persons.

And instead of a requirement to contact a supervisor before calling ICE, officers are simply encouraged to contact supervisors "when necessary."

Phoenix Police spokesman Tommy Thompson explained that the department had no choice but to alter the policy, particularly since one section of 1070 not blocked by the federal court was a private right of action allowing any legal resident of Arizona to sue any law enforcement agency that "limits or restricts" the local enforcement of federal immigration law. 

An agency found to be in violation by a court could be fined up to $5,000 a day, a penalty the department cannot ignore, even with the attendant loss of some supervisory power over its employees.

"This was one of our concerns at the time," Thompson said. "That this law would supersede our policies."

He noted that in 2010, then Phoenix Police Chief Jack Harris opposed the passage of 1070. Indeed, Harris made a formal declaration in the U.S. Department of Justice's lawsuit against Arizona over the law.

"I believe SB 1070 will have a negative effect on our community policing efforts," Harris stated in the declaration. "I am very concerned that victims and witnesses will be afraid to call police for fear of deportation." Harris also noted that, "The new law subverts the authority of management to direct its sworn resources where it deems appropriate because the law allows police officers complete discretion to enforce civil immigration violations."

Puente organizer Carlos Garcia expressed disappointment in the operations order change specifically because of Harris' outspoken opposition to the law. He stressed that the impact on the Latino community would be deleterious.

"The result is an unsafe community," Garcia said. "The result is the community doesn't trust the police. The result is handing people over to Sheriff Joe Arpaio [to be processed], and allowing him to do what he does."

Garcia said he did not know about the change in the operations order. And Puente's press release for the upcoming demonstration blasts the current policy as being made "without community input or media notoriety."

Thompson said he did not think the department issued a press release about the operations order revision when it occurred in 2010, but he insisted that since then the department had reached out to the Latino community about the changes.

Members of the Phoenix Police Department's Community Response Squad cited private meetings with some community leaders during 2011 and a public community forum held in July addressing the department's immigration policy.

Still, the post-1070 change in the operations order has not received the same high-profile attention that a 2008 change garnered. Prior to 2008, the Phoenix Police Department forbade its officers from inquiring into someone's immigration status, bringing charges from nativist groups that Phoenix was a "sanctuary city" for illegal aliens.

Facing the threat of a lawsuit by the right-wing anti-immigrant organization Judicial Watch, then Mayor Phil Gordon set up a blue-ribbon panel of former prosecutors to take input during a community gathering held mid-December 2007 and to make recommendations about the operations order.

The revised policy required all arrestees to be asked about their immigration status, but victims and witnesses were off-limits and a supervisor's approval was needed before contact with ICE was made.

Mark Spencer, the former head of the Phoenix police union PLEA (the Phoenix Law Enforcement Association), was famously accused of violating that operations order when he arrested a day-laborer outside a Phoenix Home Depot in 2009 and turned him over to ICE without booking the man for a crime.

An internal investigation found that Spencer did not "intentionally violate" department policy, but immigration activists and others accused him of setting out to push the boundaries of the existing operations order.

Those boundaries have expanded under Operations Order 4.48, though an officer's discretion is not limitless.

The policy does not allow officers to detain an individual if that individual is wanted by ICE for a mere civil immigration violation. Officers are required to fill out a form referring the matter to ICE after releasing the person. In the case of a criminal immigration violation, the suspect would be transferred to ICE's custody.

If someone is suspected of violating a state law, that person would be booked into county jail and an immigration hold placed on them, according to the revised policy.

Thompson said that last year, the department had only three arrests for 1070 violations, but pro-immigrant activists say the department's new policy opens the door to racial profiling, and that a law enforcement officer could find a reason to arrest someone after beginning an immigration inquiry. Having a forged I.D., being just one such reason.

Victoria Lopez, a lawyer specializing in immigrant rights with the ACLU of Arizona, said she had been unaware of the revision to the operations order. She characterized the changes as being "discouraging" and "deeply troubling," and was critical of the open-ended discretion given to line officers.

"The issue with the whole thing is mandating the discretion to racially profile," Lopez said. "This is what this is boiling down to." 

The revised policy prohibits officers from arresting or detaining individuals based on race. But Lopez contends that when officers are granted such latitude, matters such as race, ethnicity and language inevitably factor in.

Phoenix is not the only city in the state to revise its immigration policy in the wake of 1070. The Mesa Police Department, for instance, cautions its officers to take into consideration whether someone is a victim, witness or juvenile before inquiring about immigration status. However, it does not prohibit such inquiries as it did in the past.

After District Court Judge Susan R. Bolton enjoined the heart of 1070, including a provision to have law enforcement officials the check immigration status and the I.D. of someone where a "reasonable suspicion" existed that the individual was in the country illegally, there has been a general assumption by much of the public that 1070 is on hold, pending its review before the U.S. Supreme Court in April.

Yet Phoenix Police Department Operations Order 4.48 is one sign that 1070's insidious influence persists, albeit not in full force.

"Because we're so preoccupied with SB 1070 and Arpaio, and because you've seen [some city officials] come out against Arpaio, we dropped our guard with the city," Garcia told me.

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Garcia hopes to change that with Friday's rally, where he plans to call out the City of Phoenix for being a "quiet accomplice" to the enforcement antics of Arpaio's office.He's also submitted a lengthy public records request for details and statistics regarding the Phoenix Police Department's immigration enforcement.

I too find the fact that victims and witnesses can be questioned concerning their status to be worrisome, though I can also understand the Phoenix Police Department's legal predicament considering the dictates of 1070.

More worrisome is what awaits us after the U.S. Supreme Court rules. If the high court does not strike down 1070 or at least uphold Bolton's injunction, Arizona will endure yet another tsunami of fear, panic and prejudice. 

The sheer ugliness of what may transpire sends a chill up my spine. As bad as things are now for the undocumented in this state, there's potential for the situation to be far, far worse.

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