Originally Published: April 30, 2010 9:59 p.m.
Arizona's new anti-illegal immigration law, SB1070, has generated a large amount of controversy, much of it because of misunderstanding of its provisions.
As a co-sponsor, I want to set the record straight.
SB1070 is a comprehensive anti-illegal immigration law designed to "crack down" on illegal immigration and all the harm it causes Arizona in terms of crime and back-breaking public expenses to incarcerate, educate, medically treat and provide other services to illegal immigrants and their children.
The most frequent criticism of SB1070 is that it will empower police to challenge the legal presence of all Hispanics, legal and illegal, based solely upon their appearance. This is untrue. SB1070 directs police officers to question someone only when they have "reasonable suspicion" to believe that the person is in the U.S. illegally. This provision merely extends a half-century old U.S. Supreme Court-created tool called "stop and question" to immigration offenses. To prevent racial profiling, the law states that in constructing "reasonable suspicion," police officers "may not solely consider race, color or national origin."
Based on suggestions from police chiefs and detectives, we made changes to SB1070 to correct other potential problems. Police officers are required to make "reasonable" legal presence inquiries only "when practicable," so that officers will be free to prioritize their time. No officer will have to question an immigration suspect while someone is robbing a bank down the street. Likewise, no questioning is required when it would "hinder or obstruct an investigation," so that the police do not have to question all crime victims and witnesses about their immigration status.
Another argument against SB1070 is that it illegally pre-empts federal immigration law. But we are not pre-empting federal law - we are incorporating and enforcing it. If anybody is pre-empting federal law, it's the municipalities that have instituted "sanctuary city" policies that prohibit their police officers from even reporting illegal immigrants to federal authorities. SB1070 prohibits sanctuary city policies within Arizona.
Nor does the new law require residents to carry identification papers. This mistaken belief stems from a provision in the law that creates a presumption of legal presence, if a person presents specified forms of government issued identification. As with all law, the burden of proof rests with the police officer. If the officer's questioning does not elevate the information level from reasonable suspicion to probable cause, the suspect walks. Failing to present identification papers is not grounds for arrest unless the suspect admits to non-citizen status because federal law requires the carrying of such documents by non-citizens.
The bottom line is that the Bush administration dropped the ball on border security and internal immigration enforcement, and the Obama administration cannot even find it.
The primary responsibility of government is to protect its citizens, and illegal immigration poses a growing threat to safety. Until the federal government secures the border and adequately enforces immigration laws internally, Arizona will have no choice but to protect its citizens.
State Rep. John Kavanagh is a Republican representing District 8 (Scottsdale, Fountain Hills and Rio Verde). He is also chairman of the House Appropriations Committee.