DATE: October 8, 201 TO: Honorable Mayor FROM: Michael J. and Council Members City Manage Chris Magni Chief of Police Mike Rankis(/(/— SUBJECT: Prop 205 Q & A City Attomey ‘The Tucson Police Department, the City Manager’s Office, and the City Attorney have received a number of questions related to Prop 205 (the Sanctuary City initiative) from City Council members and other members of the community. The following series of “Q and A’s” has been compiled to be responsive to these questions. Please let us know if you have additional questions or need more information on any of the segments below. QUESTION: Is there a legal definition of “sanctuary city” in Prop 205 or in the law? ANSWER: No. Prop 205 proposes to add to City Code a statement that it “is the policy of the city that the city be a sanctuary” but does not define the term. Similarly, there is no legal definition of the phrase “sanctuary city” in Arizona or elsewhere across the country. QUESTION: If Prop 205 is approved by voters, how difficult will it be for the City's Mayor and Council to amend or repeal the law if it causes negative impacts, such as the loss of federal grants or the inability to collaborate with federal law enforcement agencies in joint operations that do not involve immigration enforcement? ANSWER: As a matter of law, Tueson’s Mayor and Council could not amend or repeal this initiative if it is approved by voters. The passage of Prop 205 would create a new article to a chapter of the Tucson City Code. Once approved by the voters it could not be amended, revised, or repealed by the Mayor and Council without a new vote of the City’s electorate (voters) at a subsequent city general election. QUESTION: Could the approval of Prop 205 put the City at risk of losing federal grant funding? If so, how much federal grant funding does the Tucson Police Department currently receive that could be at risk? What are some of the programs, activities, and positions funded by these grants?Prop 205Q.& A Page 2 ANSWER: The current federal administration has made repeated attempts to deny or limit, federal grant funding to “sanctuary” cities, triggering substantial litigation over this issue. Several carly decisions ~ including some in which the City of Tucson participated — resulted in court orders preventing the federal government from denying grant funds to cities that it deemed to have “sanctuary” policies. However, in July of 2019, the Ninth Circuit Court of Appeals (the federal court that has jurisdiction over Arizona and certain other states) rejected a legal challenge brought by the City of Los Angeles after its application for a COPS grant (for funding the hiring of new officers) was denied by the United States Department of Justice (DOJ). The Court held that the DOJ can lawfully base its awards of discretionary grant funding to local law enforcement on the immigration policies of the city applying for the grant. The Court held that DOJ’s use of immigration-related scoring factors is “well within its statutory discretion” and complies with the federal Constitution. This ruling strongly suggests the DOJ could consistently score cities with “sanctuary city” policies low enough to make it unlikely they would be grant recipients. The total amount of federal grant funding that the Tueson Police Department currently receives is $12,387,725.00 (many of these dollars are pass-through monies that come from ‘federal grants and are then disbursed through state grants). While it is impossible to predict how many of these grant programs would be put at risk by approval of Prop 205 under the recent Ninth Circuit decision, the programs currently funded by these grants include: irant programs and activities: © Crime Lab positions and equipment vital to offender prosecution © Spanish-speaking detectives for sexual assault and domestic violence investigations Cold case investigations involving previously untested sexual assault kits ‘Traffic safety enforcement Records Management System (RMS) needed for all case reports, public records requests and data collection + Narcotics investigations * Auto theft investigations © Overtime, equipment, and training for a variety of law enforcement investigations and support in higher crime areas throughout the city Grant funded positions (31 grant positions including 17 sworn): * I non-swom position—Arizona Criminal Justice Commission (ACJC) Drug Gang & Violent Crime Control (DGVCC) Forensic grant funds* FY19 * 6 sworn/4 non-swom positions-ACJC DGVCC Counter Narcotics Alliance (CNA) grant funds FY19 © 1 sergeant/2 detectives--Dept. of Public Safety (DPS) Auto Theft Task Force grant funds FY19 © 4 swom/2 contractor po: figh Intensity Drug Trafficking Area (HIDTA) and Counter Narcotic Alliance grant funds * 2 non-swom positions-Capacity Enhancement and (DNA Testing) Backlog Reduction Program grant funds * 2 detectives~Improving Criminal Justice Response Program grant fundsProp 205 Q & A Page 3 * 2 detectives—National Sexual Assault Kit Initiative (SAKI) Bureau of Justice Assistance (BJA) FY 2020 grant «2 non-swom positions--DNA Laboratory Efficiency Improvement and Capacity Enhancement grant funds © 2 non-sworn positions--HIDTA AAPC FY18 grant funds (HIDTA positions through TPD) * I non-sworn position-HIDTA AAPC FY19 grant funds (HIDTA position, through TPD) QUESTION: Are there other federal requirements that would make Tucson less competitive or ineligible for federal Department of Justice (DOJ) grants if Prop 205 is approved? Could it jeopardize existing DOJ grants that the Tucson Police Department already has received? ANSWER: Conditions put in place by the DOJ in mid-2018 require cities to certify that they comply with two federal immigration laws (8 U.: 1373 and 1644), which mandate information sharing and other cooperation between local law enforcement and federal immigration authorities (as well as other conditions). The Tucson Police Department's General Orders (GOs) were painstakingly written and implemented to strike a careful balance between complying with these federal requirements while minimizing TPD's involvement with the enforcement of federal immigration law. These careful actions by the City have allowed the City Attomey to sign off on the required certifications that allow the City to compete for these grants. However, if Prop 205 is approved, the City Attorney will not be able to sign a certification stating that the City has no ordinances or polices that limit or restrict the City’s compliance with the relevant federal immigration laws. The City will have to provide to DOJ the new policies put in place by Prop 205 as part of any new grant applications that request certification; and will have to provide to DOJ the new policies in connection with existing and pending grants, potentially putting the continuation of those funds in jeopardy." QUESTION: Would the approval of Prop 205 prohibit TPD and its officers from collaborating with federal law enforcement agencies in public safety programs and operations that are unrelated to federal immigration enforcement? Would Prop 205 only limit TPD’s ability to work with ICE and Border Patrol, or could it have a broader impact on public safety? ANSWER: If approved by the voters, Prop 205 would prohibit TPD and its individual officers from participating in any joint task force, operation “or similar endeavor” with any federal law enforcement agency, regardless of the purpose of that joint endeavor, unless that federal agency agrees to sign a “memorandum of understanding” (MOU) under which that federal agency agrees to give up some of its arrest authority — including the authority to make traffic stops or warrantless arrests - within the City limits. This provision in Prop "The legality of the conditions included within the certifications, and the constitutionality of 8 U.S.C. 1373, continue tobe the subject of ongoing litigation, including in San Francisco v. Barr, case set for oral argument at the Ninth Circuit Court of Appeals on December 2, 2019. The City of Tueson is participating inthis litigation as an amicus, joining the legal challenge against these conditions and associated certification requirements,Prop 205 Q & A. Page4 205 is not limited to just ICE and Border Patrol. It applies to joint endeavors with any federal law enforcement agency, including the FBI, DEA, ATF, HSS, the U.S. Marshals, and the U.S, Secret Service.” Moreover, this provision in Prop 205 is not limited to “joint endeavors” relating to immigration enforcement. It applies to any type of joint law enforcement operation. ‘TPD engages in joint task forces, operations, and other law enforcement “endeavors” involving a wide range of federal agencies that include the following: © Participating in the ATF’s National Integrated Ballistics Network (NIBN) that allows TPD. to link guns and bullet casings used in crimes with other ballistic evidence from across the region, state, and country. This is a critical tool to help detectives generate leads in murder and other shooting cases. © Working with the FBI to solve missing or murdered children cases such as the Isabel Celis and Maribel Gonzalez murders. TPD works with the FBI on a wide range of other crimes and participates in the FBI's Joint Terrorism Task Force. * Partnering with the DEA and other federal partners in the DEA Drug Task Force, statewide operations such as the High Drug Intensity Drug Trafficking Area (HIDTA) program, and the highly acclaimed regional Counter Narcotics Alliance (CNA), + Engaging with the U.S, Marshals to help the department locate dangerous wanted fugitives, such as the recent apprehension of the Barksdale couple (suspects in @ Tucson arson-murder case who had escaped custody while being extradited from New York back to Tucson). ‘+ Participating in joint operations with the Homeland Security Investigations (HSI) and other federal partners to address human trafficking in Tucson, including child sex rings and forced labor traflicking. QUESTION: Prop 205 proponents have stated the memorandums of understanding (MOUs) required by the initiative, under which federal agencies agree to relinquish their arrest authority as federal peace officers, are “common,” and that the federal agencies will sign off on these MOUs. Can federal agencies be required to sign such an agreement? Where else are agreements of this kind in place and how likely is it that the Department of Justice (DOJ) will allow federal law enforcement agencies such as the FBI, DEA, and ATF to sign these agreements? ANSWER: A city ordinance cannot compel a federal agency to sign any agreement, including an MOU of the type required by Prop 205. We have been unable to identify any such MOU in place throughout the country that is actually signed by a federal law enforcement agency. There has not been a response from the Prop 205 proponents to City requests for examples of any signed MOUs that are similar to what Prop 205 would require. The City Attomey and the Police Chief concur that itis highly unlikely that any federal 2 Within its provisions, Prop 205 defines “federal officer” to include a sworn, certified federal law enforcement officer or federal peace officer who is employed by an agency of the United States [see Petition, Section 17- 81(2)(6)]. In tum, the Petition provides that no TPD officer “shal participate in a joint law enforcement taskforce, joint enforcement operation or similar endeavor with a federal officer unless the city has in place a memorandum of understanding with the United States agency employing the federal officer” which has provisions that prohibit that federal law enforcement agency from exercising any arrest and detention authority beyond the authority granted under Arizona law to private persons.Prop 205 Q&A Page 5 law enforcement agency would consent to an agreement under which they would relinquish arrest authority that they otherwise have under Arizona law. QUESTION: Prop 205 proponents have stated the initiative would result in “avoiding potentially thousands of immigration checks each year” (referring to what has become known as an “SB 1070 check”) as well as ending mass deportations. What are these immigration checks? What is the actual number of these checks performed by TPD? How ‘many deportations have occurred as a result of these checks? ANSWER: During the 21-month period from January 1, 2018 to September 31, 2019, a total of 23 “SB 1070 checks” (inquiries performed by the TPD Records Section that trigger multi-level criminal background check) were requested by Tucson officers (approximately 1 per month). Each of these inquiries was based on “reasonable suspicion” of unlawful presence as required by state law and TPD General Orders. Three of these checks resulted in a Customs and Border Patrol (CBP) response and of those only one resulted in CBP taking persons into custody. One of the two individuals pled guilty to a federal felony and remains in federal custody. The other was tured over to a U.S. medical services provider. None of the 23 SB 1070 checks over the past 21 months have resulted in deportations. As explained earlier, Prop 205 cannot change the requirements of Arizona law to make these inquiries and notifications. 'TPD officers would stil be bound to follow state law and conduct checks when legally mandated. QUESTION: Prop 205 would prevent TPD officers from inquiring about immigration status at “sensitive locations” (schools, hospitals, houses of worship, and court facilities). Have TPD officers engaged in inquiries of this kind? Have any SB 1070 inquiries resulted from questioning at these locations? ANSWER: TPD policy currently directs that officers refrain from questioning students ‘on a school campus concerning their immigration status. More broadly, no “SB 1070 checks” have resulted from interactions at any of these types of sensitive locations (hospitals, houses of worship, courts) since at least January of 2018. Given this reality, the Chief of Police is working with the City Attomey to revise departmental policies to incorporate the already-existing practices under which these checks do not occur at sensitive locations like those described in Prop 205. QUESTION: Prop 205 proponents suggest that training and guidelines provided by Arizona POST (Peace Officer Standards & Training) allow peace officers, including TPD officers, to rely on racial stereotypes. Does TPD policy permit the use of such racial stereotypes (¢.g., “Significant difficulty speaking English”) as a factor in determination reasonable suspicion relating to immigration status ? ANSWER: Arizona POST provides generalized training and guidelines for all police agencies throughout the state. This includes guidance on the implementation of SB 1070 (ARS. Sec. 11-1051), which lists a number of factors to consider in establishingProp 205 Q& A Page 6 reasonable suspicion of unlawful presence. Prop 205 cannot dictate the content of Arizona POST training materials. That said, while TPD uses mandated Arizona POST guidelines ‘as a general consideration for training design, the department develops its own curriculum and manner of instruction based on community needs, priorities, and expectations. TPD policy expressly prohibits the use of racial stereotypes and has modified its list of reasonable suspicion factors relating to immigration status to remove any consideration of “Significant difficulty speaking English.” CM:MR:MO:le