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Arizona Senate advances immigration resolution amid racial profiling claims

A Republican holdout was convinced to align with his party after an amendment removed potential effects on undocumented “dreamers” and clarified the probable cause required to make an arrest under the proposed law.

By Joe Duhownik, Courthouse News Service

PHOENIX (CN) — Arizona's Senate floor session ended in chaos Wednesday as members of the gallery shouted out in protest of a voter resolution that would establish illegal border entry as a state crime. 

Critics of the resolution, which the Senate passed after nearly three hours of debate, say the proposed law would encourage racial profiling and violate the U.S. Constitution. 

“My brown skin does not make me a criminal,” one person shouted, as the crowd chanted “stop the hate!” Multiple Republicans yelled back at them, including Senate President Warren Petersen, who accused them of breaking the law by interrupting the floor session. 

Republicans spent most of the month of May building to a vote on House Concurrent Resolution 2060, which would enforce federal border crossing laws at the state level. The vote was most recently thwarted by a member of their own party, Ken Bennett of Phoenix, who protested a recently added amendment last week.

The amendment removed Deferred Action for Childhood Arrivals as a defense for illegal entry if the federal program ends. The amendment sponsor Janae Shamp, a Republican from Surprise, assured the chamber on May 9 that program recipients, called “dreamers” — those brought across the border as children who are given work permits and immunity from deportation — wouldn’t be targeted.

Bennett said last week he would only vote for the resolution if all references to the program are removed, so Republican David Gowan of Sierra Vista introduced a new amendment Wednesday afternoon doing just that, and clarifying that the law can’t be enforced retroactively against those that are already here. The amendment reearned Bennett’s favor, allowing the Republicans to send the resolution back to the House for a final vote. 

Opponents — Democrats and community organizers from the nonprofit Living United for Change in Arizona — say the bill will encourage police to rely on racial profiling because, aside from witnessing a crossing firsthand, an officer wouldn’t have probable cause to assume one crossed the border outside a legal port of entry. 

Bennett was concerned about profiling, but he said the new amendment relieved his concerns on that front as well. It clarifies that an officer can only investigate or arrest someone if any of the following apply:

  • The officer witnesses the crossing

  • The officer possesses a technological recording of the crossing 

  • There is any other constitutionally sufficient condition of probable cause

Democrats say the third item on the list allows the bill to be enforced beyond reasonable probable cause.

Bennett said he would have preferred more specific language clarifying that the third possibility of probable cause must be “similar” to the first two conditions. But he added that the U.S. Supreme Court has previously ruled that whenever a list of conditions includes a final catch-all, the terms of the catch-all must be “of the same level of standards as the others on the list.” 

Still, Democrats weren’t convinced.

“This can be applied in a much broader sense and confirms our fears,” state Senator Priya Sundareshan of Tucson said. “The number three is so broad. It is a catch-all.”

Critics also say the resolution would violate the supremacy clause of the U.S. Constitution by enforcing federal laws at the state level. The resolution language is based on a bill recently passed by the Texas state legislature, which is now caught up in federal court fighting the same claims. If passed by the voters, Arizona’s resolution will only take effect if Texas’ bill survives federal court. 

Debate over the resolution quickly devolved into squabbling after Democrat Catherine Miranda accused Republican John Kavanagh of racial profiling. 

Kavanagh, while discussing border crossing, said “criminals are dumb,” eliciting hisses from the members of the gallery. Kavanagh quickly added: “I’m sorry if I offended any criminals in the gallery.”

Miranda called Kavanagh out for the comment, as many people in the gallery were Hispanic. Kavanagh flipped the accusation on Miranda, asking why she assumed they were Hispanic.

Later, more than a dozen members of the gallery stood and denounced Kavanagh’s statements, revealing lettered shirts that spelled “STOP THE HATE.”

They were removed from the gallery.

The resolution establishes a misdemeanor crime for submitting false citizenship or employment eligibility documents to an employer, and establishes “sale of lethal fentanyl” as a class 2 felony if the dealer knows the drugs they sold contained fentanyl and if the fentanyl was the main cause of the user’s death.

The vast majority of fentanyl that comes into Arizona from Mexico is trafficked by U.S. citizens through legal ports of entry, or through mail or other means — not on the backs of those crossing illegally. Democrats complained that the resolution won’t adequately solve the fentanyl crisis, which they say should be addressed in a separate bill. 

The Senate voted 16-13 on party lines in favor of the resolution. Though the resolution originated in the House, the current language is the result of a “strike everything” amendment added in the Senate, meaning that the new language must be reapproved by the House before it is sent to the voters. 

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