Five Arizona cities want a panel of federal judges to uphold the injunction against key parts of the state's new immigration law, saying to do otherwise would endanger public safety.
In legal briefs filed with the 9th Circuit Court of Appeals, Tucson City Attorney Michael Rankin said his community already is struggling to maintain law enforcement in the face of budget problems. The resulting layoffs and mandatory furlough days have forced the police department to prioritize which incidents to investigate.
He said if the injunction is overturned it "will mandate new duties and new priorities which will significantly reduce the resources available for those public safety issues the city has identified as priorities, including homicides, home invasions, armed robberies, sexual assaults and other serious threats to the community.''
David Abney, who filed arguments for Flagstaff, San Luis, Tolleson and Somerton, raised similar issues, citing concerns raised by local police chiefs.
"SB 1070 ... requires me to divert department resources away from serious crimes not only to conduct immigration-status inquiries but to arrest persons who pose no threat to public safety,'' wrote San Luis Police Chief Rick Flores.
But the effort by the cities to keep key provision of the law off the books are running headlong into contrary arguments by Cochise County Sheriff Larry Dever. He wants the appellate court to rule that U.S. District Court Judge Susan Bolton was wrong when she put several key provisions of the law on hold.
Dever said the federal government should be looking for a solution to illegal immigration and the resulting crime in his county. Instead, he said, the Department of Justice decided to sue Arizona when it enacted laws to deal with the problem.
"The Obama administration's approach has sent a clear message to Sheriff Dever and the people of Arizona -- we're not going to protect you and do not try to protect yourself,'' wrote Brian Bergin, Dever's attorney. "This is unacceptable and intolerable.''
The briefs come as the appellate court is set to hear arguments next month over whether Bolton applied the correct legal standards in issuing the injunction. But inherent in that is the underlying questions of whether the Legislature had the power to enact SB 1070 in the first place.
That law is designed to give new powers to state and local police to detain and arrest suspected illegal immigrants.
But Bolton, ruling in a lawsuit brought by the Obama administration, said it appears that key provisions illegally intrude into the exclusive right of the federal government to regulate immigration. She also said there was evidence that allowing these sections to be enforced would cause hardships, and not only on those improperly detained.
One provision she sidelined requires police to check the legal status of those they have stopped if there is "reasonable suspicion'' they are in the country illegally. Bolton said that is likely to burden Immigration and Customs Enforcement which is legally required to respond to every request, which "will divert resources from the federal government's other responsibilities and priorities.''
For Tucson, Rankin said the mandate means police would need to set aside all other priorities "to fully investigate every potential case involving an unlawful alien, regardless of how minor the initial contact with the police or code enforcement officers may have been.''
A potentially bigger problem for the cities is the requirement that police check the immigration status of everyone who has been arrested before release. Bolton also placed that provision on hold, noting it covers anyone charged with a crime, even if that person is not jailed.
Rankin said that in 2009 city police used this cite-and-release practice 36,821 times. He said if Bolton's injunction is reversed, the additional work will consume 36,000 staff hours -- the equivalent of 18 full-time officers -- with first-day incarceration costs running the city more than $200 a person.
Dever, however, called Bolton's interpretation of the arrest provision "unreasonable,'' arguing that requirement applies only when the person is first suspected of being an illegal immigrant, not to everyone who is arrested on any charge whatsoever.
Beyond that, Dever said the injunction ignores the problems created by poor federal enforcement of immigration laws and the harms they cause.
"Hordes of men, women and children have been kidnapped, trafficked, tortured, and even murdered as drug runners battle over territory in Southern Arizona,'' the sheriff said through his attorney. "Every rancher victimized, every drug-related kidnapping, every home invasion, every "safe house'' discovered, and every stranded, dying victim of human smuggling rescued, testifies to the consequences of the government's inexcusable neglect.''
The legal fight comes as Homeland Security Secretary Janet Napolitano announced Tuesday that Immigration and Customs Enforcement removed more than 392,000 illegal immigrants nationwide in the fiscal year that ended Sept. 20, more than half of whom were convicted criminals. She said that is a marked increase, especially in removals of criminal aliens, from the last year of the Bush administration.