Top Cop: Arizona Immigration Law Puts Police in “Precarious Position”


San Francisco's police chief denounces Arizona's new legal crackdown on undocumented immigrants in an exclusive commentary for The Crime Report

As a police chief with over 30 years of law enforcement experience, I have a great appreciation for the impact laws can have on law enforcement, and on the lives of the people we are sworn to serve and protect. That's why I am concerned about the law recently enacted by the Arizona legislature allowing police to inquire into immigration status if an officer has a “reasonable suspicion” that an individual is illegally in the country.

The law reflects, regrettably, a lack of understanding on the part of some of the general public about how difficult it would be to enforce it, and how it would limit their police forces' ability to protect them from crime.

Before my current appointment to lead the San Francisco Police Department, I served for three years (until 2009) as chief of police in Mesa, Arizona–and that has given me an additional perspective on the issue that bill was meant to address.

I have three major areas of concern.

The bill will adversely affect public safety. It will incline immigrant communities to distrust the police, and further alienate immigrant and minority communities from law enforcement agencies and officers in Arizona. Victims of crimes such as domestic violence and assault will be reluctant to contact the police if they fear such contact will lead to investigations into the immigration status of the victim, of family members and neighbors, or of other persons close to the victim?perhaps leading to their detention and deportation.

The alienation between police and communities that we can reasonably expect will result from the law will occur not only where the victim of the crime is undocumented, but also in a great many other cases. This is because many households and communities are made up of individuals with varying immigration status, and frequently include at least one individual who is a U.S. citizen or an authorized immigrant. Therefore, out of fear of deportation of a family member or neighbor, many crime victims who are documented immigrants or U.S. citizens will decide not to contact the police.

This problem with the law was not cured by the amended language that relieves officers of the duty to inquire into immigration status if such inquiry would hinder or obstruct an investigation. Quite simply, the law sends an overriding message to immigrant communities: avoid law enforcement officers because it is presumed that they will be inquiring about immigration status. Minor nuances and exceptions in the law's language will not affect this over-arching message.

Serious Consequences

The consequences are serious for both crime victims and law enforcement.

Police investigations will be impeded by the lack of information that could help them solve crime. And it will have an impact on public safety not only for immigrant communities, but all communities in the state of Arizona. It will create a vacuum in law enforcement, and criminals will be emboldened because they will have less reason to be concerned about being reported by victims or witnesses in immigrant communities, and less reason to fear any consequences for their criminal conduct.

San Francisco Police Chief George Gascon

I cannot overstate the critical importance of victim and witness cooperation in solving crimes and anything that diminishes that cooperation should be rejected.

The second issue I see with this law is that it creates a resource allocation problem. Police departments in Arizona, already spread thinly and under-funded, now have an added responsibility – to enforce federal immigration law. Enforcement will effectively divert resources from the primary mission of ensuring public safety. It will require that police undertake the complicated task of checking for federal immigration status. This is simply not something police officers are trained to do.

Neither is it the reason the vast majority of officers entered the policing profession. Men and women generally join the ranks of the police force to protect the vulnerable, solve and, whenever possible, deter crimes, apprehend criminals, and maintain the peace?not to act as federal immigration enforcement agents. Quite simply, police officers cannot take on immigration enforcement duties without taking substantial time away from these basic priorities, which are central to the obligations of a local law enforcement agency.

The Arizona law also gives a right to sue to anyone who believes that a particular police department is not vigorously enforcing federal immigration law. To avoid lawsuits, police departments will likely expend significant time, money and other resources to head off the filing of these lawsuits and defending themselves against claimed failures to take appropriate actions. This puts police departments and individual police officers in an untenable position.

The third problem from a law enforcement perspective is that the law is likely to lead to constitutional violations.

Danger of Racial Profiling

The criminal provisions of this law would be extremely difficult to enforce in a race-neutral manner. When police officers attempt to determine whether an individual they encounter on patrol is in the United States illegally, as the bill requires, they will likely rely upon race and ethnicity as factors in establishing reasonable suspicion to investigate potential violations. As a practical matter, even the amended language, which prohibits consideration of race, color or national origin, will not prevent the improper use of race or ethnicity.

Short of directly observing an individual actually crossing the border in a surreptitious manner, there are not reliable indicators that would give rise to a reasonable suspicion to believe that a person is unlawfully in the United States. In good conscience, we should not be putting police officers in this precarious position.

There will also be a greater incidence of pretextual stops of individuals of color in Arizona, as officers under pressure to comply with the law will use pretextual reasons to stop or question individuals they believe to be in this country illegally. [ED NOTE: pretextual refers to the legal ability of a police officer to question a suspect about matters not related to the specific reasons he or she was detained]

If an officer is motivated by race or ethnicity he or she can easily find a valid pretext for encountering an individual, whether by following a car until a minor traffic violation occurs or by approaching a pedestrian for “consensual” questioning. Consequently, the law permits, and inevitably makes more likely, the disparate treatment of Latinos and other persons of color. For example, when police receive a complaint about excessive noise by a neighbor, they may be more likely to interrogate residents of the home about their immigration status if they are Latino than if they are white. Such disparities in law enforcement based on race and ethnicity also will almost certainly lead to greater legal liabilities for police agencies.

Taking all of these considerable defects into account, I can only conclude that Arizona's law is extremely harmful for the state's local police departments. It undermines public safety by causing communities to distrust the police; it diverts resources from the goal of ensuring public safety and it discourages victims from coming forward. It will also likely lead to racial profiling, and thus subject local agencies to litigation.

I frankly can see nothing of value resulting from this legislation. At a time when law enforcement officials are attempting to engage all stakeholders through community policing practices, and to bring about the level of safety that all communities deserve, this is a significant step backwards.

Police officers should not be drawn into the enforcement of federal immigration statutes. This has been and should remain the jurisdiction of the federal authorities. I urge our leaders at the state and national levels to craft meaningful solutions to the issues surrounding immigration, and not concoct politically expedient legislation that, intended or not, will most assuredly produce even greater disaffection in our communities.

George Gascon was appointed police chief of San Francisco on August 7, 2009. He served as chief of the Mesa, Arizona police force between 2006-2009, and previously served as Assistant Chief in the Los Angeles Police Department. He is also a lawyer in the state of California.

Front page photo by Kevin Bondelli via Flickr.

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