07/27/2010 06:04 pm ET Updated May 25, 2011

Arizona Police Agencies in a State of Confusion Over SB 1070

Arizona law enforcement officials, preparing to implement SB 1070 in the event it takes effect this Thursday, have developed a patchwork of guidelines based on varying interpretations of the law. Interviews with police officials and a review of training materials suggest that the implementation of SB 1070 will differ from one jurisdiction to another, and even within police agencies. The hodgepodge of rules is a far cry from the "statewide and uniform practices" that state Governor Jan Brewer ordered when she signed the law in April.

"What you're going to have is 15,000 variations on a theme," suggested Tucson lawyer Richard Martinez, referring to the number of officers in Arizona local law enforcement agencies.

For example, in the city of Chandler, Arizona, if a police officer stops a driver for a minor traffic infraction, believes the motorist is in the country illegally, but can't confirm the suspicion with federal immigration officials, the cop will be expected to issue a citation and let the suspect go. But, under the same circumstances, just outside Chandler's city limits, in neighboring Pinal County, deputies will most likely hand the person over to the Border Patrol. In Phoenix, the police department has issued a policy requiring officers to check the immigration status of every person arrested, regardless of whether they suspect the person is in the United States illegally. However, in rural Pima County, which shares a 123-mile stretch of border with Mexico, deputies will release an arrestee from custody without verifying immigration status unless the there's a "reasonable suspicion" the person is in the U.S. unlawfully

Across the state, not only have officials, some expressing confusion about the measure's requirements, adopted varying policing procedures, they have also developed an inconsistent assortment of training plans. Some agencies require officers to attend sessions of three hours or more and distribute manuals; others simply oblige their officers to watch a 94-minute video produced by the Arizona Police Officers Standards and Training Board (AZPOST). At the same time, the repeated insistence by the bill's proponents and by police officials that racial considerations should play no part in SB 1070's implementation has helped keep the incendiary issue of race front and center.

"The scrutiny you will be placed under during the next few months will be unlike anything you've ever seen," cautions Tucson lawyer Beverly Ginn on the training video. But despite the anticipated scrutiny, the video leaves a host of unanswered questions about the nuts and bolts of SB 1070 enforcement; the SB 1070 video offers no scenarios. Not only wasn't there time to develop scenarios, explained Lyle Mann, the AZPOST executive director, it didn't make practical sense. "What we decided to do is leave the what ifs -- and that is what scenario training is all about -- to the policy side and let agencies talk about it, because every one is going to be different," he said.

The training video devotes a separate section to the hot-button issue of racial profiling. "Racial profiling is police misconduct," says Mann into the camera. But Santa Cruz County sheriff Tony Estrada takes a dim view of the repeated admonitions. "Every speaker keeps saying over and over 'there will be no racial profiling,'" he observed. "And I say to myself, 'If there is no racial profiling, why do you keep harping about racial profiling unless you're really concerned about it?' No matter how you amend, it, no matter how you tweak it, no matter how you disguise it, it's racial profiling. You're focusing on a particular group of people."

Tucson police officer Martin Escobar, a plaintiff in one of the lawsuits seeking to block SB 1070, says that despite having been through the department's training, "in my view I can't enforce this law because unless they tell me they're here illegally, what's going to lead me to start questioning them about their legal status? There's no way to distinguish someone being here legally or not legally, because we've got so much immigration here," he said. "In this area, you have a 'mixed community' of Mexican Americans, U.S. citizens of Mexican ancestry, brand new immigrants who immigrated here legally, and illegal immigrants." Such blended communities, particularly in border areas, but throughout Arizona, will make race-neutral enforcement of SB 1070 impossible, according to Sheriff Estrada and others.

AZPOST has published a set of "factors which may be considered, among others, in developing reasonable suspicion of unlawful presence." They run the gamut from lack of identification or possession of foreign identification, to flight and/or preparation for flight, engaging in evasive maneuvers, voluntary statements by the person regarding his or her citizenship or unlawful presence, counter-surveillance or lookout activity, being in company of other unlawfully present aliens, traveling in tandem, overcrowded vehicle, dress, demeanor, erratic behavior, refusal to make eye contact, significant difficulty communicating in English, etc.

But among critics, this list of factors has been met with derision. Attorney Martinez describes the "traveling in tandem" item as "the two or more Mexicans rule." Others have pointed out that packed cars, lack of English proficiency, style of dress, or location could apply equally to lawful residents. Roberto Villasenor, the police chief of Tucson, says he is also troubled by the list of factors. "A lot of the same things that can be considered reasonable suspicion for [criminal] conduct are being touted for reasonable suspicion for [immigration] status," he said.

One particularly troublesome issue involves the different ways in which police will handle juveniles suspected of being in the country unlawfully. In the city of Chandler, if police suspect the immigration status of a juvenile, they will likely conduct an investigation of the parents. Nogales police officers will turn kids over to county juvenile authorities, while Phoenix police will contact Immigration and Customs Enforcement.

Another policy that Arizona police agencies could undermine by their interpretation of SB 1070 is asylum. U.S. laws and international treaties require immigration officials to allow asylum seekers who are fleeing persecution or abuse in their homelands to remain in the country while they apply for the right to stay. However, Chandler police will notify foreign consulates if they encounter applicants for asylum as will Phoenix P.D. It's a policy that shocks Phoenix migrant rights activist Lydia Guzman. "It's like turning a person back to their country," she said. "If someone's running from their country, you don't want to turn them in." Not only that, but officers who turn in asylum applicants to their consulates would actually be violating federal law (8 C.F.R.208.6): "Information contained in or pertaining to any asylum application shall not be disclosed [to third parties] without the written consent of the applicant..."

Mesa police chief Frank Milstead worries that SB 1070 will increase crime. "It will interfere with our ability to do community based policy, and it will probably also interfere with people reporting crimes," he said. "People will not report crimes that they're victims of in fear of being questioned about their immigration status." Milstead also says that SB 1070 could also compromise the safety of his officers. "If you think about the fact that people who have misdemeanor or felony warrants will, under some circumstances, flee or fight so they don't go to jail, so now you've compounded that by another half a million people in the state who may do one of those things to not be deported," he said. "And they would do a crime of violence against a police officer or put the public at risk trying to flee from an officer to get away from being deported. We've just increased that number exponentially."

Both federal and local law enforcement officials believe enforcement of SB 1070 will be burdensome. An ICE official wrote that that the expected "increase in queries from Arizona will delay response times...[V]ery serious violators may well escape scrutiny and be released before ICE can respond to police and inform them of the serious nature of the illegal alien they have encountered."

Arizona police officials, particularly in smaller jurisdictions with tight budgets, are also complaining that SB 1070 will distort priorities. Sheriff Tony Estrada in Santa Cruz County says the requirement to enforce immigration law or risk being sued is an unwelcome imposition. "That will take away from the quality of life issues for residents -- things that are important -- whether it's theft or vandalism, or burglary or fraud, stolen identification, graffiti, things that impact on the community," he said. "I may have to be spending more time dealing with immigration issues that I have no desire to do."

Journalist Jeffrey Kaye is author of a new book, Moving Millions: How Coyote Capitalism Fuels Global Immigration (Wiley). A complete version of this article appears on the website of the Immigration Policy Center.