Immigration Law Police Enforcement

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Brian Livingston, Executive Director of the Arizona Police Association and Neville Cramer, retired INS Special agent talk about the law enforcement provisions of the state’s new immigration legislation.

José Cárdenas: Good evening. Thank you for joining us. Arizona's new tough immigration law has the country's attention focus order our state. As part of the new legislation, Governor Brewer ordered the Arizona peace training and standards board to create guidelines for training police to enforce SB 1070. One provision of the bill requires police to determine a person's immigration status if there is reasonable suspicion that the person is in the country illegally. Here now to talk about this provision of the bill is Brian Livingston, the executive director of the Arizona police association. Also here is Neville Cramer, an immigration enforcement consultant who has an -- who was an INS agent for 30 years. Gentlemen, thank you for joining us on "Horizonte." Brian, let's start with you, but first give us your background in law enforcement.

Brian Livingston: I'm a retired law enforcement officers. I was medically retired from the city of Phoenix after approximately 12 years, I was shot in the line of duty and obtain add medical retirement, but prior to that I was a police officer in Indiana. So I've got approximately 20 years in law enforcement. My current position as executive director of the police association means that I'm the representative of 18 individual police associations detention associations, corrections associations and border patrol associations, in the state of Arizona. I will be the representative at the legislature and be the public spokesman for those organizations on decisions they make.

José Cárdenas: With respect to this legislation, did your association take a position on it?

Brian Livingston: Yes, we did.

José Cárdenas: Were all your members unanimous in their support for it?

Brian Livingston: The board was unanimous. I'm sorry, the board voted in favor of it.

José Cárdenas: Unanimously?

Brian Livingston: All board members weren't present at the time we took a position on the bill, so I can't use the word unanimous. But of the people that were there, yes, they were all supportive.

José Cárdenas: Just tell us briefly, because we're going to get into detail later, what does SB 1070 give the officer on the street that he or she doesn't already have?

Brian Livingston: It renews a restriction in some cases. I say in some cases, because some cities, towns, and counties already permit their officers to contact immigration and naturalization Service, or ice, to determine the immigration status of an individual they've come in contact W other cities, towns, and counties prohibit that. Or restrict that to a supervisor's determination whether that's necessary. What this does is Sal Lou the officer on the scene, present during a situation, to make that determination. That's all it is. It's an additional tool to our enforcement techniques.

José Cárdenas: There's a provision in the statute that specifically deals with that subject that says officials or agencies cannot restrict or prohibit that -- the full enforcement of federal immigration law.

Brian Livingston: By policy and procedure. That part of the law just is toward police officials and administrators saying, you cannot prohibit them. If they decided it's an appropriate thing to do, to contact immigration authorities.

José Cárdenas: And that's the additional tool so to speak, or improvement over what an officer could do now that they couldn't do before, if they were in one of those jurisdictions.

Brian Livingston: That's correct.

José Cárdenas: Why does it say so much more it's not limited to that.

Brian Livingston: It puts a lot of onus on law enforcement to do the right thing. To make sure they follow certain guidelines and procedures, and that's important. It's important for the public. Especially the minority public, to understand that we're not going to go out arbitrarily and just stop people for no particular reason. We're not going to do it based on race, skin color, ethnic origin, sexual preferences or any of those things that are prohibited, already prohibited by federal and state law.

José Cárdenas: So why put it in here if it's already prohibited?

Brian Livingston: Because it reemphasizes what our leaders demand of law enforcement officers. It's a reemphasis of already current law.

José Cárdenas: In your view, with the exception of the provision that says agencies and officials can't restrict what the officer on the beat can do with regard to seeking enforcement of federal immigration law, the rest of it is more protection for minority groups?

Brian Livingston: I think it adds -- should give them a comfortability level of saying this, is what the state will not allow an officer do when they decide to make that call to immigration officials.

José Cárdenas: We'll come back with more details, but first, Neville, thank you for joining on us the show. Give us your background, and then I'd like to hear your overall view of this piece of legislation.

Neville Cramer: Thank you for having me. I served in the immigration and naturalization Service for 26½ years and retired in November of 2002. I began my career in immigration law enforcement as a United States border patrol agent, subsequent to that I served in Chicago, Illinois, Washington, DC, and was the chief of the immigration officer training academy in Glencoe, Georgia, for six years. I live in Scottsdale, and I just want to say I am a proud graduate of the University of Arizona, and I just had to tell that you since I'm here at Arizona state University.

Brian Livingston: We appreciate that.

Neville Cramer: This bill, as far as immigration is concerned, I believe, gives law enforcement a tool that they not only need in Arizona, but they need throughout the United States. And that is, with proper training, police officers are going to get information about immigration status so that they do not racially profile, so they do not make erroneous arrests, so they do understand things about passports and residential alien cards, and this type of information. And in many areas in the United States, as was stated, police officers are prohibited by their command personnel or by policies from obtaining this information. And I think that this law serves a very good purpose in allowing officers to get the training in this type of information.

José Cárdenas: So other than removing that restriction, that some entities had enforced in the past, what does the statute give the officer that he or she didn't already have?

Neville Cramer: Well, I am not that familiar with Arizona state law, but I believe that this gives the police officer more information so that they can make a better determination about the people that are involved in their neighborhoods that they're trying to protect. Gives the officer the opportunity to question individuals who they have suspicions as being illegal and possibly involved in other criminal activity such as human trafficking, drug smuggling, and this gives the officer information that will make him a better officer and better understand the people within his community.

José Cárdenas: Didn't they already have that ability?

Neville Cramer: No.

José Cárdenas: Do you agree with that?

Brian Livingston: We had the ability to communicate with any community -- any member of any community. The restriction that was placed upon us when we came -- when we confronted a situation, say, involving a gang member, where they didn't present I.D., when they had the tattoos identifying them as a member of the Mexican Mafia, MS 13, we couldn't go to the next step and say, OK, you don't have I.D., we can't identify you, we can't place you in a permanent place of residence, all those things that would be building blocks to determining immigration status were blocked because administrative or political figures said, we don't want that in our community. So that person got to walk away.

José Cárdenas: So the statute takes that block away.

Brian Livingston: Yes, it does.

José Cárdenas: Does it do anything else, though?

Brian Livingston: I think it allows the minority community to have more confidence in the police. And I say that in this way. Currently we get numerous calls from members of that community advising us of criminal activity. First of all, they don't then and you don't now have to identify yourself when you report a crime to the police. But if you do, in this bill is is a provision that says, if you're reporting a criminal offense to the police, your immigration status is not part of the questioning by the police. It is not important to the police officer. And it says it directly in the bill.

José Cárdenas: Where does it say that?

Brian Livingston: In the section it's 1051B. It says, "a reasonable attempt shall be made when practical to determine the immigration status of a person except if the determination may hinder or obstruct an investigation."

José Cárdenas: That's different than what you said a moment ago.

Brian Livingston: It's not. Because if I'm going to ask you, if you're the victim of a crime, and you are reporting to me that you are a victim of a crime, and you know your legal status, my questioning of your status is not going to help me procure the enough information to arrest that individual. I don't need that information. It's going to hinder me from prosecuting a bad guy. And that's what we want to do. That's where our goal is. It is not determining and making a victim twice.

José Cárdenas: Do you really think that the minority community is taking comfort from SB 1070?

Brian Livingston: I think they've been fed a lot of misinformation. A lot of information that makes them believe that we are going to single out someone who has an accent, someone of color, someone who is just different from no particular reason, than they are those things. And in fact we couldn't do it before this bill, we can't do it after this bill.

José Cárdenas: Isn't one of the concerns, though, that the bill now makes it -- requires an officer to make an attempt to determine immigration status under circumstances where in the past they didn't have to?

Brian Livingston: No. In fact, it doesn't. If practical. One practical -- that means for the circumstance that's are present, for the situation that they've arrived to, is I.T. necessary, does it behoove the process of the investigation -- it.

José Cárdenas: It says a reasonable attempt shall be made. Let's assume it's practical. But an officer in the past could have decided I'm not going to ask that question. I'm not going to make that determination. They're now required to make that determination.

Brian Livingston: No, they're not. What they're going to say is, the officer will have to articulate if he is challenged on why he didn't do that, why it wasn't necessary to further his conduct or his investigation during the time he was present.

José Cárdenas: In the past he wouldn't have had to explain his conduct.

Brian Livingston: No, that's true. So that's what I mean, it's more cumbersome on an officer to make sure he does it right. Make sure he makes the right determination. And that may sound like a very difficult decision, but it's a decision that officers make every day.

José Cárdenas: I want to come back to that, but I want to make sure we get Neville's input, because he's got tremendous experience in this area. It says for any lawful contact made by law enforcement official, where reasonable suspicion exists the person is an alien unlawfully present in the United States. Give me a scenario where those circumstances would exist and articulate what reasonable suspicion would be to believe that a person is an alien who is unlawfully present in the United States.

Neville Cramer: Well, first of all, let's divide this into two separate sections. An alien in the United States, and then the suspicion of being illegally in the United States. And that has to be bifurcated. First part is, determining if the individual is an alien. And the way you make that determination is you can ask questions of the individual, you can look at their -- the things around them, such as documents, the clothes they're wearing, and it is not any single factor. It is is a group of facts the police officer will be required to present if he's asked, such as, the closing individuals wearing, the race of the individual, the documents the individual is carrying, the language the individual is speaking, those are all things that lead up to enough facts to give the officer suspicion that the individual is an alien in the United States.

José Cárdenas: But give me a scenario where you've had the lawful contact, and then something occurs because this used to require first lawful contact, and then where have you reasonable suspicion before you then make the inquiry about immigration status. So can you just very quickly --

Neville Cramer: You pull a person over, they have tags on their car from Mexico, the individual speaks only Spanish, the individual hands you a document which is from Mexico, it's obviously somebody who is from Mexico, and they're wearing clothing which is indicative that they came from a certain part of Mexico. You have enough articulable facts to believe that might be an alien in the United States.

José Cárdenas: That's the way -- it says --

Neville Cramer: An alien. Then once you make the determination the individual is an alien, and this is where there's miscommunication in the community, once the determination is made the individual is an alien, then the burden of proof shifts to the alien, and they must present documentation to the officer to prove their legal status in the United States.

José Cárdenas: That's not the way the statute reads. Do you agree with Neville's description of the appropriateness of that kind of inquiry under the scenario that he described?

Brian Livingston: I think it's more complicated. I think he's right, but let's go further. I stop someone who has a vehicle. For whatever traffic violation. He has Sonoran plates. I ask them for their driver's license and insurance information, and any type of registration document for the vehicle. When they say, I don't have those, I don't have a driver's license, I can't produce any type of insurance information, which would validate a name for the person driving the car, or any type of registration information for that vehicle, now that's going to raise my suspicion. I'm now going to -- if they only speak Spanish I'm going to ask for a Spanish speaking officer to make sure I can communicate properly.

José Cárdenas: At this point have you is a reasonable suspicion they're here unlawfully.

Brian Livingston: I have one building block toward --

José Cárdenas: isn't that what's required by the statute? You have to have
reasonable suspicion before you can make the determination of immigrant status?

Brian Livingston: Yes. And that's exactly right. That's why it's there. Because we have to have a series of building blocks before we get to that point of saying, we may have an illegal person here. Not someone who who is just an alien, or from Mexico. Somebody who is illegal. So now I'm going to make further questioning. We're going to talk to that person more thoroughly.

José Cárdenas: I apologize, but we're almost out of time. A couple more things I want to ask you specifically. One has to do with the transporting somebody who is here illegally and it's a separate section from the already existing criminal transporting or human smuggling. How do you interpret that? We had Senator Gould, one of the sponsors here, a couple of weeks ago who said that the 16-year-old driving his mother to church who is -- if the mother is here illegally, that person is violating this new statute --

Brian Livingston: I would disagree. Because in the statute there must be a criminal violation to occur before you would have reason to question the passenger. So if the absence of a criminal violation, I would have no reason to have official --

José Cárdenas: Predicate criminal act by the driver in this instance.

Brian Livingston: And that's exactly what's stated -- .

José Cárdenas: It's not a civil traffic offense, it's some more substantial -- it.

Brian Livingston: has to be a criminal act. And that's what the statute says.

José Cárdenas: I apologize, but Neville, you've got so much experience, any final thoughts on this legislation and either how the concerns that have been expressed can be calmed? Or what you would say about the importance of this legislation?

Neville Cramer: Yes. I -- I think it's despicable what's happened in this community with the bad information, the false information that's been given to the entire community, the immigrant community included. This concept that individuals will be walking down the street and coming back from Iraq as a soldier and being stopped by a police officer and having to show their proof of United States citizenship, I will tell you I spent 26½ years as an immigration special agent, I never once, ever asked an individual to prove their U.S. citizenship with any kind of documentation.

José Cárdenas: But that's something could you have asked as a federal officer --

Neville Cramer: I -- well, could I have, but I didn't -- no.

José Cárdenas: Let me ask --

Neville Cramer: once the person makes a claim to United States citizenship that's the end of the questioning.

José Cárdenas: Last question, Brian, there is that separate provision about, if you're here without your federal papers, you've violated state law. If you don't have them on your possession as required by federal law. But it seems to limit the enforcement of that section only to, quote, law enforcement officer who is authorize by the federal government to verify or ascertain an alien's immigration status. Is that limited only to agencies that have a 287G agreement?

Brian Livingston: Oh, not at all. There's two different things here.

José Cárdenas: Very quickly, because we're out of time, who can do that?

Brian Livingston: 287G --

José Cárdenas: without explaining 287G, who is the law enforcement officer authorize by the federal government to verify or ascertain --

Brian Livingston: Anyone here who has 287G status grand by the federal government or a federal government official himself.

José Cárdenas: And that's a separate paragraph.

Brian Livingston: That's who --

José Cárdenas: You don't have that status if you are not with a law enforcement agency that has that status, you can't --

Brian Livingston: You can't provide the information that will lawfully detain that person for you.

José Cárdenas: And I apologize, gentlemen, this is a fascinating topic, we probably should have had on you for the entire show. Hope to have you back some other time. Thank you for joining us on "Horizonte."

Neville Cramer & Brian Livingston: Appreciate it.

Brian Livingston:Executive Director,Arizona Police Association;Neville Cramer, Retired INS Special Agent;

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