MALDEF Western Regional Counsel, Nancy Ramirez Statement Regarding Phoenix Police Operations Order 1.4 January 18, 2008
Phoenix Police Operations Order 1.4, which recognizes that police officers “are not in a position to determine the legal or illegal status of anyone’s residency in the United States” strengthens police community bonds and generates cooperation, intelligence and assistance vital to solving and preventing crime in Phoenix. Mayor Gordon’s proposal providing for local police to notify federal immigration officials “when any law has been violated by a person they have reason to believe is in the United States illegally” makes all residents less safe and will likely lead to racial profiling of those persons thought to look Hispanic. This proposal contradicts the well-established principles of community policing adopted by the International Chiefs of Police and Major Cities Chiefs of police. As stated by the International Association of Chiefs of Police in its recent report, “One of the central benchmarks of a well-commanded police department is establishing good relationships with the local communities, including those composed of immigrants. Working with these communities is critical in preventing and investigating crimes.”1 Among the concerns of the Major Cities Chiefs with local police agencies enforcing federal immigration laws are the undermining of trust and cooperation of immigrant communities in police investigations, the complexity of federal immigration law, the lack of resources for appropriate training in immigration law and the risk of civil liability.2 Community cooperation, information sharing and intelligence gathering are critical components of effective law enforcement. Changing the current policy will reduce the reporting of crime and the cooperation of witnesses to pursue criminal investigations. Officers’ abilities to connect with the community and get intelligence and information in a fast-paced and dangerous street environment make us all safer. Residents coming forward willingly to tell police what they know both solves and prevents crimes. Further, promoting police cooperation with federal immigration officials will likely result in an increase in crimes against undocumented immigrants because perpetrators will know that their acts will go unreported. Research has shown that undocumented immigrants are more likely to be victimized than other members of the general population.3
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A Police Chief’s Guide To Immigration Issues, International Assn. of Chiefs of Police, July 2007, at 21. M.C.C. Immigration Committee Recommendations for Enforcement of Immigration Laws by Local Police Agencies, Adopted by Major Cities Chiefs, June 2006. A Police Chiefs Guide to Immigration Issues at 11.
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Violent criminal activity flourishes when criminals know their victims and witnesses are too afraid to call police. The Phoenix New Times recently reported the conditions of a drop house discovered by police last October in El Mirage where undocumented men and women had been held hostage by vicious smugglers.4 They were tortured, beaten and held for ransom. When one segment of the community is effectively excluded from enforcement of the laws, lawlessness is allowed to flourish and public safety is compromised. The use of local police to enforce federal immigration laws increases the likelihood of racial profiling and other abuses of due process and civil rights. This puts local police departments at higher risk of civil liability. Arizona is no stranger to racial profiling. In 2001, the ACLU filed a class action lawsuit against the Arizona Department of Public Safety asserting racial profiling of Latinos and African Americans in traffic stops, detentions and searches throughout Arizona highways. The case was settled in 2005 and, as part of the settlement, a study of racial profiling in Arizona was conducted. The report, released in November 2007, demonstrated Arizona Highway Patrol officers were more than twice as likely to search vehicles driven by Latinos and African Americans than white drivers during 2006.5 Minorities also were far more likely to be arrested or to receive multiple traffic citations. Latino motorists were the most likely to be searched, arrested, and cited and to receive multiple citations and the least likely to get off with warnings.6 As you know, in 1997, the City of Chandler, Arizona directed a joint operation with the Border Patrol to conduct immigration sweeps within the city limits. This partnership between the local police and federal immigration authorities led to the detention of U.S. citizens, legal residents and persons legally authorized to be in the United States.7 The five-day sweep resulted in a $35 million civil rights lawsuit. When the City had to defend itself in court and pay to settle the case, the federal government was nowhere to be found. The experiences in Chandler and with the Arizona Department of Public Safety demonstrate the inherent risk of violating civil and due process rights when local law enforcement are not adequately trained in federal civil rights and immigration laws. Immigration law is highly complex and requires specialized knowledge and training to ensure that Constitutional protections are enforced. Federal immigration laws include both civil and criminal aspects and procedures. Local police may constitutionally detain or arrest aliens who have violated the criminal provisions of the immigration laws.8 However, courts have determined that they lack legal authority to arrest or detain aliens solely for the purposes of civil deportation proceedings.9 Deportation of aliens under federal immigration laws is a civil proceeding. For example, a lawfully admitted nonimmigrant alien may become deportable if his visitor’s visa expires or if his student status changes. In this situation, the person may be subject to civil deportation without having violated a criminal provision of federal immigration laws.
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Megan Irwin, Flushing Them Out, Phoenix New Times, Dec. 27, 2007. Associated Press, New Study Suggests Racial Profiling by State Highway Patrol, Nov. 7, 2007. Id. Results of the Chandler Survey, Office of the Attorney General Grant Woods, State of Arizona, 1997. Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir. 1983). Id.
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Federal immigration laws are highly complex and ever-changing. As the Ninth Circuit Court stated in Gonzales v. City of Peoria, “[L]ocal police must be able to distinguish between criminal and civil violations and the evidence pertinent to each.”10 As such, a police officer cannot assume that everyone who is transported by a smuggler is in the country illegally. Even if individuals are illegally present, they may still be eligible to legally adjust their status under various provisions of immigration law. Police must consider whether the person may be eligible for a visa as a trafficking victim, a crime victim, an unaccompanied minor or someone who is eligible for asylum. Local police are not properly trained in the nuances of immigration law and do not have the capacity to make these legal determinations. MALDEF has grave concerns about the proposed revisions to Operations Order 1.4. We oppose the changes for the reasons outlined above. The nation’s immigration policy must be established at the federal level. City by city immigration enforcement policies introduce complexities and confusion to localities that deprive both law enforcement and the residents of the cooperation and coordination necessary to solve and prevent local crimes. We urge you to keep Operation s Order 1.4 intact without unwise changes. We promise to be vigilant to ensure the protection of the civil rights of Latinos living in Phoenix who are especially affected by any change in policy.
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Id. at 477.
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