PHOENIX - Having to enforce SB 1070 would endanger public safety and put Tucson's already precarious finances in an untenable position, City Attorney Mike Rankin said in a federal court brief challenging the law.
Tucson was one of five Arizona cities filing briefs with the 9th U.S. Circuit Court of Appeals asking it to uphold the injunction against key parts of the state's new immigration law.
Rankin said Tucson already is struggling to maintain law enforcement in the face of budget problems. Layoffs and mandatory furlough days have forced the police department to prioritize which incidents to investigate, he said.
He said if the injunction is overturned it "will mandate new duties and new priorities which will significantly reduce the resources available for those public safety issues the city has identified as priorities, including homicides, home invasions, armed robberies, sexual assaults and other serious threats to the community."
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Attorney David Abney, who filed arguments for Flagstaff, San Luis, Tolleson and Somerton, raised similar issues, citing concerns raised by local police chiefs.
But the effort by the cities to keep key provisions of the law off the books are running headlong into contrary arguments by Cochise County Sheriff Larry Dever. He wants the appellate court to rule that U.S. District Judge Susan Bolton was wrong when she put parts of the law on hold.
Rankin said enforcing SB 1070 means police would need to set aside all other priorities "to fully investigate every potential case involving an unlawful alien, regardless of how minor the initial contact with the police or code enforcement officers may have been."
A potentially bigger problem for the cities is the requirement police check the immigration status of everyone who has been arrested before release, which Bolton put on hold, saying it covers anyone charged with a crime, even if that person is not jailed.
Rankin said that in 2009, city police cited and released 36,821 people. He said if Bolton's injunction is reversed, the additional work will consume 36,000 staff hours - the equivalent of 18 full-time officers - with first-day incarceration costs running the city more than $200 a person.
Dever, however, called Bolton's interpretation of the arrest provision "unreasonable," arguing that requirement applies only when the person is first suspected of being an illegal immigrant, not to everyone who is arrested on any charge whatsoever.
SB 1070 is designed to give new powers to state and local police to detain and arrest suspected illegal immigrants - powers the Obama administration sued to block on the grounds they illegally intrude into the exclusive right of the federal government to regulate immigration.
The briefs come as the appellate court is set to hear arguments next month over whether Bolton applied the correct legal standards in issuing the injunction. But inherent in that is the underlying questions of whether the Legislature had the power to enact SB 1070 in the first place.
Dever said the injunction ignores the problems created by poor federal enforcement of immigration laws and the harms they cause.
"Hordes of men, women and children have been kidnapped, trafficked, tortured, and even murdered as drug runners battle over territory in Southern Arizona," the sheriff said through his attorney. "Every rancher victimized, every drug-related kidnapping, every home invasion, every 'safe house' discovered, and every stranded, dying victim of human smuggling rescued, testifies to the consequences of the government's inexcusable neglect."
The legal fight comes as Homeland Security Secretary Janet Napolitano announced Tuesday that Immigration and Customs Enforcement removed more than 392,000 illegal immigrants nationwide in the fiscal year that ended Sept. 20, more than half of whom were convicted criminals. She said that is a marked increase, especially in removals of criminal aliens, from the last year of the Bush administration.
