By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State senators acted Wednesday to ask voters to make it a crime to enter Arizona from Mexico at other than a port of entry.

The party-line approval after nearly five hours of debate came after lawmakers added two provisions demanded by Sen. Ken Bennett. The Prescott Republican had refused to lend his support — and his necessary vote — without what he called safeguards to ensure HCR 2060 is not used to round up people already in this country illegally.

One change makes anything in the plan prospective only. Bennett said that ensures the measure won’t be used for random racial profiling.

The other, Bennett said, says that someone can be arrested only if a law enforcement officers actually see someone cross the border illegally or if there is “technological evidence,” like a videotape. That, he said, also ensures police won’t be using the law to stop people anywhere in the state simply because they look like they may be here illegally.

Sen. Priya Sundareshan, D-Tucson, said it still insufficient to protect against racial profiling.

She pointed out the language also allows an arrest if there is “any other constitutionally sufficient indicia of probable cause.” And that, she said ends up being a “catch-all” that police could use for profiling.

Sen. John Kavanagh conceded that does open the door for other situations.

The former police officer said there have been situations where people actually confess to breaking the law. That, said the Fountain Hills Republican, could — but doesn’t necessarily have to — be someone who is lost in the desert and needs help.

“Criminals do that,” Kavanagh said.

“Criminals are stupid, at least those that we catch,” he continued. Kavanagh said there is no reason someone who makes such an admission should be immune to arrest.

But Sen. Anna Hernandez, D-Phoenix, said the problems with the language don’t end there.

Take, she said, the provision that allows police to use video evidence.

Hernandez said that, as written, it would allow a police officer in Fountain Hills, armed with a video taken along the border of someone crossing, to go into someone’s home or church to search for them. What the bill is missing, she said, is any provision limiting enforcement to the border area.

Bennett dismissed that as highly unlikely.

“I don’t think that’s the way law enforcement officers work,” he said.

Maybe not, Kavanagh conceded.

Consider, he said, a situation where someone robs a convenience store and there is a videotape of the incident. Police then give the video to TV stations who broadcast it, resulting in a tip that leads to someone’s arrest.

“Why wouldn’t you want the police to do that?” Kavanagh asked.

Still, he insisted that wouldn’t be practical in efforts to find illegal border crossers.

“You have a tsunami of people coming across the border,” Kavanagh said, arguing police won’t be taking videotapes to search out border crossers.

Much of what is in HCR 2060 about making it a crime to cross the border illegally is similar or identical to Senate Bill 1231. But that proposal by Sen. Janae Shamp, R-Surprise, was vetoed earlier this year by Gov. Katie Hobbs, who said border security is a federal and not a state issue.

What makes HCR 2060 different is that it would put the issue on the November ballot, giving voters the last word — and bypassing the governor’s objections.

But supporters also included two other provisions.

One includes enhanced penalties for those who knowingly sells fentanyl if that drug causes the death of another person. That came over objections from Sen. Catherine Miranda, D-Phoenix, who said it is unrelated to border security and therefore a violation of constitutional provisions limiting legislation to a single subject.

HCR 2060 also includes a requirement for public agencies to use a federal database to determine if someone who seeks state or local benefits is in this country legally.

The heart of the measure, however, remains the argument by supporters that the state needs to play a role in border security because the Biden administration is failing to live up to its responsibilities.

“If the federal government will not protect the citizens of the sate, that is up to us,” said Shamp.

The measure makes illegal entry into Arizona other than a border crossing a misdemeanor.

But the chances of the measure filling up jails and prisons is remote. That’s because it permits a judge to dismiss the charges if the person agrees to be deported.

Sen. Anthony Kern, R-Glendale, said even this is a compromise.

“If it were up to me, every illegal immigrant would go back to their home nation,” he said, rather than just prospectively letting police arrest.

He said there is evidence some people who already have crossed the border illegally are terrorists, saying that includes some of the same members of Hamas responsible for the Oct. 7 attack on Israel.

Sen. David Farnsworth had an even darker view of current immigration policies, saying he no longer feels safe living in the United States.

“And the biggest reason we are not is we have a lot of people who hate our country who live here who are crossing the border,” he said.

“I believe they are preparing, as a Fifth Column, to destroy our country,” Farnsworth said. “I believe they are waiting for the signal to blow up bridges, blow up buildings and kill people. And we are allowing this to happen by your wide-open border.”

But Sen. Eva Diaz, D-Tolleson, said that, as crafted, HCR 2060 is flawed.

For example, she noted, its provisions would not affect those who have been granted asylum. But those who are seeking asylum would remain subject to deportation even though the federal government recognizes their right to remain while their requests are adjudicated.

One crucial issue is whether the border security provisions ever will be enforced, even if voters approve in November.

That’s because they are modeled after SB 4, approved by the Texas Legislature. Challenged by the Department of Justice, a federal appellate court has blocked its enforcement until that litigation is settled.

With that in mind, HCR 2060 spells out that it cannot be enacted here until at least 60 days after there is a final ruling on that Texas statute. And going through the anticipated appellate process could take months.
The measure now goes to the House.

Wednesday’s discussion turned heated at times.

Sen. Catherine Miranda, D-Phoenix, took specific exception to Kavanagh’s claims about criminals, saying he effectively was calling Hispanics criminals. She said that was racist.

He responded by demanding she apologize, threatening to file an ethics complaint against her.

And Senate Minority Leader Mitzi Epstein objected when Kern said some lawmakers want to deal with border security while “the other side is nothing but gobbledygook and talk.”

But the disputes were not limited to the members.

Sen. T.J. Shope. whose mother was born in Mexico, was explaining his support of the measure and his belief HCR 2060 won’t be used by police for racial profiling.

“I want to address you and tell you, to our law enforcement community that this Latino senator doesn’t think that you are sellouts or racists whose only motivations for wearing a badge are to pull over your fellow Latinos,” said the Coolidge Republican. “I say that as your senator and also as somebody who looks like you.”

And Shope said there is “out and out racism” in the Senate “where we question the motivation of our fellow men and women all of the time and always, always going for the jugular of racism.”

That resulted in several individuals in the gallery shouting “Stop the Hate” and “Shame.” That led to security removing them from the building — and Senate President Warren Petersen shouting back at them “You are lawless.”

There also were political charges, with Democrats saying if Republicans were really interested in border security they would support federal legislation that includes $20 billion for border security and provide authority to expel migrants when the number of crossings exceeds a specific number.

“What this really is is cover for Trump,” said Sen. Juan Mendez, D-Tempe, pointing out that the former president urged Republicans to kill the measure.

On the other side, Sen. Shawnna Bolick said the blame for the border problems are due to Democrats and that governor “Katie Hobbs continues to play politics.”