SB 1070: Tucson protest

Hundreds of protesters rallied against SB 1070 in 2010. That law conflicts with an initiative that aims to make Tucson the state’s first “sanctuary city,” according to the city’s top attorney.

An initiative to make Tucson the state’s first “sanctuary city” could be in trouble, as the city’s top attorney suggested that sections of the proposal are unenforceable.

The eight-page memo, written by City Attorney Mike Rankin, outlined a number of legal issues with the ballot initiative, leaving the city vulnerable to legal action from the state.

An attorney with the group behind the “Tucson Families Free and Together” ballot proposal, Billy Peard, rejected Rankin’s analysis.

The People’s Defense Initiative, Peard said, worked carefully to craft a proposal that would be effective and survive legal challenges.

At the core of Rankin’s analysis is how the proposal seeks to limit the circumstances under which police can ask about immigration status.

The initiative language, Rankin said, conflicts with the controversial SB 1070, which requires local police officers to check a person’s immigration status while enforcing other laws if they suspect a person might be in the country illegally.

Attempts to put prohibitions and obligations on when Tucson police officers can, in the context of stops and detentions, ask about someone’s immigration status goes beyond existing state laws, Rankin noted.

He argued the proposed proposition would prevent a TPD officer from participating in any law enforcement activity, specifically when determining a person’s immigration status.

“I believe this is a direct conflict with (SB 1070), which requires that an officer, as part of his/her law enforcement activities, attempt to determine immigration status in certain situations,” Rankin wrote.

Peard pushed back, saying the language was carefully crafted not to conflict with any existing law.

Rankin also had concerns about restricting officers from asking anyone about their immigration status at churches, hospitals, schools and inside state or local courts, saying it could conflict with SB 1070.

However, Peard argued that the policy is in line with adopted guidelines and procedures on “sensitive locations” used by the Border Patrol and Immigration and Customs Enforcement.

The city attorney noted that as the Tucson Families Free and Together ballot proposal seeks to amend the City Charter, any legal complications would be difficult to undo.

“Because the measure is an initiative, the mayor and council would be powerless to amend or repeal its provisions without submitting a new measure to the electors for approval,” Rankin wrote.

Rankin hinted that the measure could leave the city open to a fight with the state under SB 1487, which allows the state to withhold state shared revenues if it finds that a city ordinance violates Arizona law.

He also worried that the controversy could lead to the Legislature drafting new laws stripping local control over its immigration policies.

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Peard said SB 1487 is being used by the council to tell it what it can and cannot do concerning local politics.

“That is the bogeyman that they are raising,” Peard said.

The city would lose state funding under SB 1487 only if it conflicts with state law, which Peard maintains the ballot initiative does not.

There is not a lot of case law on SB 1487, he added, noting that even Rankin concedes it is legally unclear where an initiative would fall under the provisions of the 2-year-old state law.

“Literally speaking, they are actions of the community, not ‘the city,’ ” Peard noted.

In a footnote to his memo, Rankin said an argument could be made that provisions of SB 1487 might not apply to initiative measures.

Peard added that a court would likely “surgically remove provisions” of the proposed initiative long before the city would lose state funding.

The memo, released by the city Wednesday, was provided by Rankin as a legal opinion to the Tucson City Council to evaluate the impact of the proposed ballot measure on the city, not in an attempt to influence the outcome of the November election should the proposition go before voters.

Contact reporter Joe Ferguson at jferguson@tucson.com or 573-4197. On Twitter: @JoeFerguson

Reporter

Joe has been with the Star for six years. He covers politics as well as the city of Tucson and other municipalities in Southern Arizona. He graduated from the UA and previously worked for the Arizona Daily Sun.