by Gary Nelson and Michael Ferraresi

The Arizona Republic

June 23, 2010

As the effective date of Arizona's new immigration law nears, new concerns are being raised by municipal officials about how to effectively enforce it without creating a legal and financial quagmire.

At a public forum Tuesday, two southeast Valley mayors said the law could boomerang on its authors by actually reducing immigration enforcement because of its rigid legal requirements.

Meanwhile, Phoenix's Police Chief Jack Harris estimated enforcement could cost Phoenix as much as $10 million annually in jail bookings forced by the law.

Senate Bill 1070, signed into law this spring by Gov. Jan Brewer, makes it a state crime to be in the country illegally. It says an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.

Brewer spokesman Paul Senseman defended the bill, noting that many Arizona law-enforcement agencies have endorsed SB 1070.

"Governor Brewer, when she signed the bill, had standing behind her representatives of several law-enforcement organizations that represent a cross-section of law enforcement around the state," Senseman said. "They are the folks that are on the front lines of enforcing our laws.

They believe this is a useful and additional tool in protecting Arizona and enforcing our laws. . . . Rank-and-file officers who actually are involved in the daily affairs have expressed their support."

But as the finer points of the law have come under scrutiny by those who must enforce it, more worries are coming to light.

Interim Maricopa County Attorney Rick Romley's office recently conducted a legal analysis that questioned the practical application of the law and whether effective prosecution is possible under its provisions.

Tempe Mayor Hugh Hallman and Mesa Mayor Scott Smith raised new concerns Tuesday during an Arizona Republic forum in Tempe City Council chambers, saying the law would complicate their cities' arrest procedures by elevating an immigration violation from a civil to a criminal offense.

That, they said, may require suspects to be read their Miranda rights, which include the right to remain silent when questioned by police and the right to a defense lawyer.

Furthermore, under the law, they said, a person who can't produce a driver's license or other ID during a stop is not eligible to be cited and released by a police officer. That means the person must be taken into custody.

Under current law, police can investigate a person's immigration status, and if the person is found to be here illegally, federal Immigration and Customs Enforcement agents can take over the case without local criminal charges being filed.

When SB 1070 takes effect July 29, that civil process won't exist. The person must be charged with a crime under Arizona law. People in custody under suspicion of a criminal offense must be read the Miranda rights established in a landmark 1966 U.S. Supreme Court ruling.

"We've now taken something that was operating through a civil process rationally and reasonably, and, in my view, for political reasons, brought it up to a criminal level that now may make it even more difficult to enforce," said Hallman, who is a lawyer.

Harris predicted red tape will bog down his department.

"To get the evidence would require lots and lots of investigative work - for what?" Harris said. "A misdemeanor? It's not reasonable."

Smith said he told Brewer before she signed the bill that he objected to some provisions, especially those that would increase costs to cities and local police workloads.

Harris warned members of Phoenix's Public Safety and Veterans Subcommittee on Tuesday that his department's legal team thinks the new law makes it illegal for officers to transport suspects directly to ICE, as permitted by current law and department policy.

That means thousands of people whom Phoenix officers ordinarily would cite and release for minor crimes will have to be booked into county jail. Bookings cost $192 per suspect, and the city must pay about $72 per day for each inmate housed in county jails.

Phoenix officers booked more than 45,400 suspects into jail last year, about 14 percent of whom had ICE holds.

Harris' analysis contradicts estimates from the Phoenix Law Enforcement Association that the new law would save the city more than $600,000 annually by using ICE to avoid jail bookings.

"It's far more complex than we've been led to believe," Harris said. "It's not as simple as throwing them in your car and taking them to ICE. That's illegal, and it's not feasible."