People’s Defense Initiative responds to city attorney’s legal analysis of sanctuary city initiative

After Tucson’s failed attempt to successfully defend a city ordinance that defied state law and directed Tucson Police Department to dispose of unclaimed or forfeited firearms by destroying them, it does not appear City Attorney Mike Rankin, or the mayor and council, are looking for another run-in with the state’s lead prosecutor and his power “at the request of one or more members of the legislature” to launch a special investigation into whether or not a city ordinance violates state law or the state constitution.

The city attorney all but opposed Tucson Families Free and Together, a petition-initiative organized by People’s Defense Initiative that seeks to amend city code and make Tucson “a sanctuary and safe refuge for all persons,” in a January memorandum. And, his opposition is likely due to a belief that, if passed, the new city ordinance will trigger another special-action investigation, like the one over the firearm disposal ordinance, by Mark Brnovich, state attorney general.

Rankin’s January 2019 memorandum took issue with language in the proposed ordinance that he said directly conflicts with existing parts of SB 1070, the infamous show-me-your-papers law. And based on Rankin’s memo many current city council members and candidates in the upcoming election have since expressed opposition to Tucson Families Free and Together.

A footnote in Rankin’s memo said it was uncertain whether or not the state attorney general could bring a special-action against an ordinance generated through the petition process because the authorizing statute, A.R.S. 41-194.01(A), governs, “official action adopted or taken by the governing body of a county, city, or town,” and the statute is silent on citizen-led, petition initiatives.

Regardless, Rankin sounded his alarm and suggested the proposed ordinance could result in “additional legislation” by the state legislature, “jeopardize the city’s eligibility for certain federal grants,” and would “prevent collaboration with federal law enforcement agencies.”

Last Wednesday People’s Defense Initiative turned in over 18,000 petition signatures to the city election office ahead of deadline and released their rebuttal to the city attorney’s January memo. PDI’s response-memo challenges Rankin’s and contends the ordinance they’ve submitted to voters will likely withstand any future state or court action.

Where Rankin points to direct conflict with SB 1070, PDI argues their law works around the edges of the state statute and closely tracks any limits currently imposed by federal immigration laws.

For instance, Rankin took issue with proposed ordinance section 17-83’s subsections (h) & (i) saying, “these subsections substantially limit the factors that an officer can consider when developing reasonable suspicion that a person is unlawfully present,” and, “are contrary to the concept of reasonable suspicion under legal precedent.”

But PDI counters, these sections of the ordinance, “would instruct officers to rule out considerations that, considered alone, are illegal or improper.” PDI says SB 1070 does not define reasonable suspicion or provide enough guidance to local officers for forming reasonable suspicion determinations.

Section 17-83, subsection (h) of the proposed ordinance would require TPD officers to establish reasonable suspicion based on “two distinct factors”; and subsection (i) excludes race, color, ethnicity, mode of dress, ability to speak English, speech patterns or perceived accent, inability to provide local address, being in certain locations, overcrowded vehicles, proximity to known undocumented individuals, or a detainee’s name from factors available to form a reasonable suspicion determination.

Some of the proposed exclusions are currently allowed by TPD’s General Order 2300, which addresses immigration, such as overcrowded vehicles and being in the company of other unlawfully present people. PDI says those factors are “proxies for race” and/or may violate other constitutional protections such as “the First Amendment guarantee of free association.”

Below is a side-by-side guide to the legal analyses of the city attorney and PDI and includes the relevant language of the proposed ordinance.