PHOENIX — A veteran state lawmaker wants to put taxpayers of any city that enacts a “sanctuary” policy on the financial hook if police fail to call immigration officials on someone who is a convicted felon, in this country illegally, and then goes on to commit another felony.
Rep. John Kavanagh, R-Fountain Hills, said it’s already illegal for local communities to refuse to cooperate with Immigration and Customs Enforcement. And the penalty is loss of half of their state aid.
But Kavanagh told Capitol Media Services on Tuesday none of that helps a person who becomes a victim of a person who should have been turned over to ICE.
“Who’s going to compensate the victims?” he asked. “That’s what this bill does.”
Kavanagh acknowledged there’s a second reason for his proposal: a measure scheduled to be voted on next month by Tucson voters to declare the community the state’s first “sanctuary city.”
“Tucson voters should understand that if they vote ‘yes’ and my bill is passed, they could be causing their city to incur liability,” he said.
The wide-ranging Tucson proposal would prohibit police from detaining someone to determine that person’s immigration status.
It also would bar police from participating in any activity, investigation or enforcement action to determine whether someone is in the country legally. And it spells out that anyone who is detained must be released once the officer has completed all the tasks leading to the original traffic stop or criminal investigation “regardless of whether the officer has determine such detainee’s immigration status.”
Another provision also says police “shall not initiate contact with a federal law enforcement agency by phone” in seeking to determine whether someone stopped or arrested is unlawfully in this country.
Kavanagh said that may not be enough to quash the initiative. So he wants something in place should it pass anyway.
He said this would not create liability for every act committed by every person who police have stopped, did not question about their immigration status and then released. Instead it would apply only to cases where the person who is in this country illegally already was a convicted felon.
“If their (sanctuary) policy causes them not to call and this individual has committed a felony, then he’s considered a dangerous criminal,” Kavanagh said. “And if that dangerous criminal harms somebody, they (the city) will have to pay the civil damages.”
Kavanagh has been one of the long-time supporters of various laws designed to target people who are not in this country legally. That includes SB 1070, the 2010 law which was designed to give police more power to to detain suspected illegal immigrants.
Much of that law was voided by federal courts. But one provision that remains requires police who have stopped, detained or arrested someone for any reason to make a reasonable attempt to determine that person’s immigration status if there is “reasonable suspicion” that person is not in this country legally. The U.S. Supreme Court said the provision, on its face, is not unconstitutional or preempted by federal law.
Another provision bars Arizona officials, agencies and political subdivisions — including cities — from limiting enforcement of federal immigration laws.
As crafted, the Kavanagh legislation has a three-part test to determine whether someone can sue.
First, the individual or survivors would have to be the victim of murder, sexual assault.
Second, the person not in this country legally would have to had been convicted of a felony and sentenced to at least a year in prison.
But Kavanagh said it also would require that a local government either refuse to comply with a lawful request by federal immigration officials to hold someone or the failure of police to inquire of ICE to determine the person’s immigration status.
And it would specifically define a “sanctuary city” as any community “that has in effect an ordinance, policy, rule or practice” that restricts local officers from communicating with immigration officials and honoring any request by those officials to detain that person.
Kavanagh said he would actually prefer to make communities liable for releasing anyone not here legally, regardless of whether they had a felony conviction.
“The attorneys I spoke to didn’t think you can attach criminal liability for releasing somebody that’s not dangerous,” he said.
The legislation also has a clock of sorts: Only those who are the victim of any felony within 10 years of someone being released would have the right to sue.
“At some point, the chain of causality is severed,” Kavanagh said. “So I don’t make this forever.”
Kavanagh is virtually certain of getting a hearing on his legislation. He chairs the House Government Committee to which it could be assigned.