Republicans move to add ballot measure allowing warrantless arrests over immigration suspicions

UPDATE: The Arizona House passed HCR 2060 along party lines on June 4, 2024. Pending legal challenges, the proposal is expected to appear on the November 2024 ballot.

Republicans in the Arizona Legislature have approved a ballot measure that supporters claim will address the fentanyl crisis despite the expanded police powers in the proposal doing virtually nothing to those who break trafficking laws.

House Concurrent Resolution 2060 will now be sent to the Arizona House for a vote—and if passed, will added to the November 2024 ballot, where Arizona voters will be asked to approve the law. If it were to become law, HCR 2060 would:

• Give state law enforcement authority to arrest anyone they suspect has entered the country outside authorized ports of entry
• Declares crossing the border anywhere outside a port of entry to be a state crime—and a felony
• Creates stricter requirements and penalties for businesses that employ immigrants
• Grants law enforcement and government bodies blanket immunity from civil lawsuits that might result from enforcement of the law
• Requires harsher penalties against anyone convicted of knowingly selling fentanyl that causes death

Reviving harsh immigration laws

Opponents of the proposal have compared its language surrounding detainment, enforcement, and deportation to that of SB 1070. This 2010 law granted police the authority to make warrantless arrests—just as HCR 2060 does—and was ruled to be unconstitutional by the US Supreme Court.

The court also ruled that its provision that law enforcement could detain anyone they had “reasonable suspicion” was violating immigration law could lead to racial profiling. The language the justices referenced similarly mirrors HCR 2060’s allowance that anyone police can arrest anyone they deem has “sufficient indicia of probable cause.”

Alejandra Gomez, executive director for Living United for Change in Arizona (LUCHA), said the current proposal has the same unconstitutional mandates as the 2010 “show me your papers” law, and will impact Black and Latino communities in the same devastating way.

“We all remember too well how law enforcement weaponized SB1070 to target Black and Brown Arizonans across the state,” said Gomez. “If you are black or brown in the state of Arizona under HCR 2060 you are not safe from being persecuted or detained. And that is exactly the message Republicans want to deliver. HCR 2060 is a monstrous reincarnation of SB 1070, poised to destroy Arizona’s communities and drive families across Arizona into hiding out of fear and persecution.”

Impact on current residents

Supporters of the measure, such as Arizona Senate President Warren Petersen, R-Gilbert, denied the law would have any impact on the state’s current residents. He pointed to something known as ex post facto, a state law reiterated in HCR 2060 that says laws can only be applied proactively, and can not be retroactively used against Arizonans.

“This would not affect anybody who has already entered the country prior to the passing of this. That would violate ex post facto criminal law,” said Petersen. “This is prospective, going forward.”

But the ex post facto protection itself appears to be unconstitutional. In 1913, the US Supreme Court ruled that ex post facto laws do not apply to deportation because deportation is not a punishment for committing a crime, but “a refusal by the government to harbor persons whom it does not want.”

The fentanyl part

The measure also fails to address illegal substances such as fentanyl brought across the US-Mexico border by US citizens through legal ports of entry, which accounts for nearly 90% of fentanyl seized by law enforcement. HCR 2060 also does not provide funding for its mandate that local authorities enforce border crossings, an effort estimated to cost $325 million annually. The spike in incarceration would also cost the state’s prison system $50 million every year.

“I don’t appreciate how often It seems that the folks who are pushing and advocating for this bill are using fentanyl as an excuse,” Arizona Sen. Christine Marsh told The Copper Courier. “It will erode voters’ trust when they see that it is not actually mitigating the fentanyl crisis in any significant way.”

As it is written, HCR 2060 only focuses on illegal substances brought across the border by non-citizens outside authorized ports of entry. If voters approved the measure and it eliminated this form of trafficking entirely, it would reduce the amount of opioids coming to the US by 0.009%.

If applied to the 152 million doses of lethal fentanyl seized by the US Drug Enforcement Agency so far in 2024, HCR 2060 would prevent less than 14,000 lethal doses from entering the country.

Republicans passed a similar measure earlier this year, but it was vetoed by Gov. Katie Hobbs. In response, legislators along party-lines passed it again, but as a ballot proposition, as to circumvent another Hobbs veto. Next, it will be sent to the Arizona House, and if passed, will be added to the November 2024 ballot, where it must be approved by a majority of Arizona voters in order to become law.

Correction: A previous version of this story incorrectly outlined the timeline for HCR 2060  to be added to the November 2024 ballot.