State lawmakers voted late Thursday to repeal one of the more controversial provisions from the new law aimed at illegal immigration and alter another.
One change in HB 2162, approved by both the House and Senate, spells out in statute that police, when deciding who to question about their immigration status, may not use race, ethnicity or national origin as a factor.
That is significantly different from SB 1070 as it was approved by lawmakers and signed less than a week ago by Gov. Jan Brewer. That law permits police to consider any of those factors as part of a determination if there is “reasonable suspicion” that someone is not in this country legally — as long as it is not the only reason for investigating further.
Sen. Russell Pearce, R-Mesa, had defended the original provision as being relevant, saying 90 percent of those in this country illegally are from Mexico and points south.
But by Thursday, after the filing of two lawsuits challenging the new law on several grounds, including racial profiling, Pearce backed off. He now is saying the provision is probably unnecessary, as the U.S. Constitution already precludes racial profiling.
What the change does, Pearce said, is removes a target for foes, both those in court and those criticizing the measure in speeches and demonstrations.
“I’m just tired of the games played by the Left,” he said. Pearce said making that change — and leaving pretty much everything else — “strengthens the bill’s ability of being enforced without letting the Left leverage bad stuff.”
But another change negotiated between Brewer and legislators could have an even more sweeping effect.
As originally approved, SB 1070 requires police to determine the immigration status of those with whom they have “lawful contact” if there is reasonable suspicion the person is not in this country legally.
That “reasonable suspicion” language remains. But the language about “contact” is replaced with a reference to “stop, detention or arrest.” Gubernatorial press aide Paul Senseman said those changes effectively reduce checking immigration status to “secondary enforcement.”
“There have to be other steps, such as another law being broken first,” he said, before an officer could, with reasonable suspicion, inquire if a person is a citizen or legal resident.
He compared that to Arizona’s seat belt laws: Police cannot stop a motorist solely because the person is unbuckled. But officers can issue a ticket for failing to buckle up if the driver is stopped for some other reason.
Senseman said both charges are designed to undermine lawsuits seeking to have the law overturned on the premise that it allows officers to stop and question anyone who looks like an illegal immigrant. He also said the secondary enforcement language strengthen existing provisions in the original bill designed to reassure illegal immigrants who are crime victims or witnesses that they can call police without being asked themselves about their legal status.
Officially, the language in HB 2162 cannot amend SB 1070 which already has been signed into law. But since SB 1070 won’t take effect until 90 days after the end of the session, putting the altered verbiage into the other bill means that, when both become law on the same day, the later-adopted revisions will take precedence.
Pearce, however, said he doesn’t believe either change will make it harder for an officer to question someone who is suspected of being an illegal immigrant, calling the new wording “clarifications.”
“The reason we made these clarifications is to make it a stronger case in court,” he said.
“This is a tough bill,” Pearce continued. “We didn’t water it down.”
In fact, Rep. Kyrsten Sinema, D-Phoenix, said she fears the changes actually could result in more people being questioned about whether they are in the country legally. It says the requirement for police to inquire about legal status exists when they are enforcing any state or local law — or even local ordinances.
That, said Sinema, would include overgrown yards, parking on streets and inoperable vehicles in driveways. Worse yet, she said, is that the mandate to seek information on immigration status might be extended to zoning and code-enforcement officers.
Pearce, however, said the requirement to inquire of suspected illegal immigrants covers only law enforcement officers.
He agreed that if a city code violation is being investigated by a sworn officer, then the law would apply. But Pearce said that is no different than the language in SB 1070 which lets police question someone they contact for whatever reason if there is reasonable suspicion the person is an illegal immigrant.