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Hands Loosely Tied

TPD and the ACLU disagree (surprise!) on how SB 1070 is enforced

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An upcoming Nov. 13 study session won't the be the first time the Tucson City Council has discussed its SB 1070 policies or provided advice on possible constitutional violations by the Tucson Police Department on how the agency continues to interpret the controversial state law.

Veronica Lopez, ACLU of Arizona program director, spoke to the council on Sept. 25, 2012 at a public hearing. However, that was a little more than a year before the recent Oct. 8 incident between Border Patrol, TPD officers and a group of immigration reform activists just down the street from Southside Presbyterian Church.

The incident ended with activists being shoved by Border Patrol agents and then pepper-sprayed by TPD officers, followed by press conferences the next day-one from activists asking that TPD Chief Roberto Villaseñor handle things differently and then another from Villaseñor explaining that while he was an outspoken critic of the law from the very beginning his hands are tied and there's nothing TPD officers can do differently if they suspect someone they stop is undocumented—they must call Border Patrol.

Lopez told the Tucson Weekly recently that an ACLU representative plans to be at the Nov. 13 study session and provide the same advice it provided back in 2012—mostly that TPD can do things differently and that a mistrust that obviously exists between TPD and the community will continue to grow. That's something Villaseñor said at his press conference that he knew could happen, is happening and is something he says is the fault of the law and parts that remains after last year's Supreme Court decision that don't make it easier for law enforcement agencies.

Back in 2012, Lopez advised the City Council to revise TPD policy in order to comply with the constitution and that what the Supreme Court decision said is that it is unlawful to detain anyone for any amount of time, however "reasonable," if the purpose of the detention is solely to verify immigration status and is unrelated to the reason for the stop.

There are other changes ACLU proposed in 2012 to the city and TPD besides that officers not contact Border Patrol for people who can be cited and released. Several changes include that in cases where individuals have been detained, TPD should follow the federal government's priorities when contacting Border Patrol (criminal offenders, recent border violators, and individuals with outstanding orders of removal); and in cases where the police officer has the discretion to impound a vehicle or allow another party to pick up the vehicle, TPD should direct officers to do the latter to not impact day to day living of the families because of impound fees.

At Villaseñor's press conference we asked the chief if litigation could help the department, and his response was that according to the law the department could be sued for not following the law. But Lopez told the Weekly that the ACLU continues to take statements and gather data with future litigation in mind—needed to address issues that law enforcement agency say tie their hands.

Lopez said the Phoenix Police Department is going through the same issues, but she cites a May 2013 University of Chicago study from a survey of Latinos living in Chicago, Houston, Los Angeles and Phoenix to assess police involvement in immigration enforcement and how it's changed perceptions and a willingness to contact police when crimes have been committed.

In the study, "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," 57 percent of Latinos surveyed in Phoenix said they didn't feel safer with Phoenix police involved in immigration enforcement. Lopez said she imagines the statistics and other figures are probably similar in Tucson. Fifty percent, she noted, said they are less likely to call the police when crimes occur.

"There's room for discretion," Lopez said about TPD and city policies. And while Villaseñor challenges accusations of racial profiling by saying that in at least during the Oct. 8 case the officers themselves were bilingual and Latino, so no racial profiling occurred, Lopez said that doesn't mean that racial profiling didn't occur during that stop or previous stops.

In an interview with Tucson Mayor Jonathan Rothschild and Tucson Manager Richard Miranda, also a former Tucson Police chief, the mayor said the city council has clearly shown it is opposed to SB 1070, even filing amicus briefs that may have gone all the way to the Supreme Court challenge. But as he understands the law and the Supreme Court ruling that if any officer has reasonable suspicion they must contact Border Patrol.

"It does put the police in a tough position. We've talked about being an immigrant friendly city, but the city can't contradict the law even if we think it's wrong," Rothschild said.

Rothschild said he and Miranda have asked Villaseñor to provide a report on what occurred Oct. 8 and he expects that will be done at the Nov. 13 study session. "In addition to the chief I need to hear from city attorney (Mike Rankin). One of the reasons we objected to the law is because it creates ambiguities and grey spaces."

Some members of the community are asking the city council to act, but in this case what does that mean? Rothschild said the council sets policy and can give direction to the city manager to carry out direction in departments for that policy, but when it comes to state and federal laws imposed on the city there isn't anything that can be done unless the law is determined by Rankin to be unconstitutional. But since the law already went before the Supreme Court, Rothschild said that is difficult to do at this point.

Miranda echoed part of what Rothschild stated, adding that any deviation of the law is considered a violation of the law itself. It's constraining and ambiguous, but no doubt it is putting a strain on the relationship between the police and the community.

"To have a safe community requires a partnership between police and our community and that requires a trust that takes a long time to build and I think that over the years we have made significant strides in building that trust," Miranda said, adding that it's important for some type of dialogue to take place between TPD and the community in order to better understand the challenges TPD is up against.

"The city charter mandates the chief has operational control of department based on the laws of state and laws of Tucson," he said. "Good relationships are very important for us as a community to grow on. ... I have a good understanding of the community and where the activists stand, but also an understanding of where law enforcement is and what their responsibilities are. Again, SB 1070 has created that tension."

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