In the nearly two weeks since South Tucson’s city council approved a settlement with the American Civil Liberties Union over how its police department carries out SB 1070, officials from surrounding jurisdictions have pored over the terms of the deal.
The agreement, which overhauled the department’s immigration policy, has galvanized some Tucson-area elected officials to pursue procedures they believe better guard against prolonged detentions and racial profiling — two key concerns raised by critics of the law.
“Now we have a case study, and we can compare notes,” said Regina Romero, a Tucson city councilwoman who has opposed the law since Gov. Jan Brewer signed it in 2010.
The most contested section of SB 1070 that was not blocked by the courts requires local police to check the immigration status of someone they stop for another reason, if they become suspicious the person may be in the country illegally. That part of the law, however, has been interpreted and applied in different ways by different departments. An Arizona Daily Star analysis found that agency practices vary widely.
The South Tucson deal resolved the first legal claim the ACLU made against an Arizona law-enforcement agency over how it applies SB 1070. The group has one other claim pending, against Tucson Police Department, and it has promised more legal action to come.
“We’ve been investigating SB 1070 stops since the law took effect,” said James Lyall, an ACLU attorney based in Tucson. “We expect we will continue to pursue cases as they arise.”
Tucson Police officials say they are looking closely at South Tucson’s new policy, but they question whether some provisions comply with the spirit of the law.
For example, the agreement requires South Tucson officers to inquire about immigration status with Immigration and Customs Enforcement, or ICE, rather than Customs and Border Protection, which is the primary immigration authority in areas within about 100 miles of the border.
The ACLU asked Tucson police to consider that change months ago, but Chief Roberto Villaseñor said last week the department was still looking into it.
Pro-immigrant advocates believe ICE is likely to respond to a stop less quickly and less frequently due to its enforcement priorities. For its part, ICE plans to refer inquiries back to Border Patrol.
“U.S. Border Patrol is the primary DHS response agency in Pima County and Southern Arizona,” ICE said in a written statement. “As such, as a matter of policy, U.S. Immigration and Customs Enforcement (ICE) refers calls from area law enforcement agencies requesting immigration response to Tucson Sector Border Patrol.”
“That’s their prerogative,” Lyall said. “Our primary concern remains that local law enforcement not extend any stop to investigate immigration status.”
ACLU pressure has already contributed to some changes in Tucson police policy. The City Council unanimously directed the department to make several changes last November after a traffic stop resulted in a call to Border Patrol and sparked a protest ending in pepper spray.
In response, TPD rewrote its immigration policy to say victims, witnesses and people making complaints to the department should not be the focus of immigration inquiries. Juveniles also are no longer to be questioned about immigration status without a parent, guardian or attorney present.
Several members of the council said they are pleased with the changes but feel frustrated that the department has not followed through in developing an easy way to collect and distribute data about immigration checks.
“If the chief or anyone else dances around this, they do so at their own peril,” Councilman Steve Kozachik said Thursday. He expects the council soon will address the data issue. The current system is on paper because of problems with the police department’s data management system.
Tracking how long people are detained for immigration inquiries has been especially contentious. TPD attorneys say each case is different and the legal standard for how long a wait can be is “reasonableness” so they don’t plan to collect that information.
“It’s relevant how long they wait and how long we’re tied up in a mandate for federal enforcement,” said Councilwoman Karin Uhlich. “It can really have an effect on their mission to keep the public safe.”
The Pima County Sheriff’s Department declined an interview request about possible implications of the South Tucson settlement. Clarence Dupnik Sheriff Clarence Dupnik earlier said his deputies have discretion in enforcing immigration law. The department has no written policy like those in Tucson or South Tucson — and at least one member of the Pima County Board of Supervisors doesn’t like that.
“I think that’s more dangerous,” Supervisor Richard Elías said. “It leads to more racial profiling.”
Supervisors cannot dictate to the sheriff, also an elected official, how he should run his department beyond setting a budget. But the ACLU is looking at the sheriff’s department closely.
“We have serious concerns that the county doesn’t have a policy,” said Lyall.
The ACLU has received multiple reports of stops it believes were made for the reason of checking immigration status, he said.