The Arizona Senate Committee on Federalism, Mandates and Fiscal Responsibility voted on Tuesday to protect Arizonans’ civil rights. The committee voted to allow anyone or any group adversely affected by a local law that conflicts with state law to sue.
The committee asserted state supremacy, and protected individual civil rights by moving to prohibit state and local governments from assisting any federal agency that collects data associated with phone, email, and other electronic records, without a warrant. Government official who cooperate with the federal agencies would be barred from ever holding public office.
The legislators also moved to protect sheriffs from the sort of federal abuses being played out in Eddy County, New Mexico, this month. The bill proposed would recognize the county sheriffs as having superior authority, in so far as they could arrest federal officers, who try to arrest someone or seize property as they have done in the Eddy County case. According to various blogs, Eddy County Sheriff Scott London stopped the arrest by the US Marshal Service of Kent Carter, a man who allegedly owes hundreds of thousands of dollars to the IRS.
The bill would require federal officials to get consent from sheriffs before making arrests in the sheriffs’ jurisdictions.
SB1291 firearms; state preemption; penalties (Smith, Allen, Burges, et al)
SB1331 electronic data; metadata; prohibited collection (Ward)
SB1384 federal search; seizure; sheriff; permission (Burges)
S.B. 1384, federal search; seizure; sheriff; permission
Purpose
Creates protocol for federal employees to follow if they wish to make an arrest or conduct a search or seizure in Arizona.
The U.S. Constitution defines the powers of the legislative, executive and judicial branches of the federal government and reserves certain rights and powers to the states and the people of the United States. The Tenth Amendment of the U. S. Constitution states that powers not explicitly given to the U.S., or prohibited to the states, are reserved for the states or people.
The position of sheriff is established in Article 12, Section 3, of the Arizona Constitution.
Their duties and powers include general peacekeeping, arresting public offenders, protecting courts when danger is anticipated and operating and maintaining county jails (A.R.S. § 11-441).
Sheriffs are elected by voters of their respective counties and they are the highest law enforcement officer of the county.
A.R.S. § 13-3875 requires each sheriff in the state to develop and adopt a crosscertification policy for federal peace officers who wish to conduct authorized business in the county, if the sheriff wishes to allow cross-certification at all. A cross-certified officer can exercise all law enforcement powers of a peace officer in Arizona if the federal officer submits:
1) a written request for certification; and 2) proof of federal certification and authorization to carry out appropriate actions. The Arizona Peace Officer Standards and Training Board (AzPOST) is responsible for maintaining records of certified federal peace officers.
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Sheriffs:
1. Proclaims the county sheriff to be the senior and most authoritative law enforcement officer in the county whose primary duties are to preserve peace and protect the liberties of the county’s residents.
2. Prohibits federal employees who are not cross-certified from making arrests or conducting searches or seizures in a county without written permission from the sheriff or the sheriff’s designee unless:
a) the arrest, search or seizure occurs on a federal enclave to which jurisdiction was ceded by Arizona to the U.S.;
b) the federal employee witnesses a crime that demands immediate arrest;
c) the federal employee enters the state in close pursuit of a person to make an arrest and brings the arrested person before a county magistrate for a hearing; or
d) the federal employee is a Customs and Border Protection or Immigration and Customs Enforcement officer.
3. Allows the sheriff or his designee to refuse permission to a federal employee for any reason the sheriff or designee considers sufficient.
Attorney General
4. Requires the federal employee to obtain written permission from the Attorney General instead of the county sheriff if the federal employee:
a) intends to arrest, search or seize an elected county or state officer or a sheriff’s office employee; or
b) has probable cause to believe the subject of the arrest, search or seizure (subject) has a close connection with the sheriff and would be warned of such an arrest, search or seizure.
5. Requires the request for written permission regarding a subject connected to the sheriff to include a written statement, under oath, describing the probable cause.
6. Excuses the federal employee from obtaining permission from the Attorney General regarding sheriff’s employees, state or county officers if the delay in acquiring permission would probably cause:
a) serious harm to an individual or community; or
b) the subject to flee in order to avoid prosecution.
7. Permits the Attorney General to refuse permission of such a request for any reason he considers sufficient.
Miscellaneous
8. Allows requests for permission to be in letter form, either typed or handwritten.
9. Stipulates that the written request from the federal employee to the sheriff or Attorney General must include:
a) the name of the subject;
b) a clear statement of probable cause for the arrest, search or seizure or a federal arrest, search or seizure warrant that contains a clear statement of probable cause;
c) a description of assets intended for search or seizure, if any; and
d) the date, time and location of the intended arrest, search or seizure.
10. Specifies that the sheriff, a sheriff’s designee or the Attorney General must countersign the permission request for it to be valid; it is valid for 48 hours after it is countersigned.
11. Requires the sheriff or the Attorney General to keep a copy of the permission request on file.
12. Requires the county attorney to prosecute a federal employee who does not follow these requirements for:
a) kidnapping, if an arrest or attempted arrest occurs;
b) trespassing, if a search or attempted search occurs;
c) theft, if a seizure or attempted seizure occurs;
d) an appropriate homicide offense, if loss of life occurs; or
e) any other applicable offenses in the criminal code.
13. Prohibits the county attorney from refusing to prosecute after the sheriff, or his designee, claims a violation has occurred.
14. Subjects the county attorney to a recall by the voters and prosecution by the Attorney General for official misconduct if the county attorney fails to prosecute in such a circumstance.
15. Declares that pursuant to the Tenth Amendment and Arizona’s compact with other compacting states, any federal law purporting to give federal employees the authority of a county sheriff is not recognized, specifically rejected and declared null and void and of no effect in the State of Arizona.
16. Becomes effective on the general effective date.
S.B. 1291, firearms; state preemption; penalties
Purpose
Establishes procedures and penalties for political subdivisions that violate state firearm preemption laws.
Background
Statute establishes various measures preempting the regulation of firearms by political subdivisions. Statute provides, with exceptions, that a political subdivision is prohibited from enacting any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms, ammunition or components or related accessories. A political subdivision is further prohibited from requiring the licensing or registration of, or prohibiting the ownership of,
firearms, ammunition or components or related accessories.
A political subdivision is prohibited from requiring or maintaining a record, including a list, log or database, of specified information relating to firearms. A political subdivision is prohibited from enacting any rule or ordinance that relates to firearms and that is more prohibitive, or that has a penalty greater, than any state law or penalty. The state, any agency or political subdivision and any law enforcement agency may not, with exceptions, facilitate the destruction of firearms or purchase or otherwise acquire a firearm for the purpose of destroying
the firearm (A.R.S. § 13-3108).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Requires a court to declare invalid any act, ordinance, regulation, tax or rule enacted by a political subdivision in violation of state firearm preemption laws.
2. Requires a court to issue a permanent injunction against the political subdivision from continuing the invalid act or enforcing the invalid ordinance, regulation, tax or rule.
3. Provides that it is not a defense that the political subdivision was acting in good faith or on the advice of counsel.
4. Requires the court to assess a civil penalty of up to $5,000, if the violation is knowing and willful, against the elected or appointed government official or administrative agency head under whose jurisdiction the violation occurred.
5. Prohibits a political subdivision from using public monies to defend or reimburse a person who is found to have knowingly and willfully committed a violation.
6. Subjects a person who knowingly and willfully violates a provision of the state firearm preemption laws to termination from employment.
7. Allows a person or organization whose membership is adversely affected by an ordinance, regulation, tax, measure, directive, rule, enactment, order or policy, that violates state firearm preemption laws, to file a civil action for declaratory relief and actual damages against the political subdivision.
8. Requires the court to award the prevailing plaintiff in a civil action concerning a political subdivision’s violation:
a) reasonable attorney fees and costs; and
b) actual damages incurred of up to $100,000.
9. Makes conforming changes.
10. Becomes effective on the general effective date.
S.B. 1331, electronic data; metadata; prohibited collection
Purpose
Prohibits state agencies and political subdivisions from providing certain types of assistance to federal agencies if those agencies claim the power to collect electronic data or metadata without a warrant.
Background
The Fourth Amendment of the U.S. Constitution provides people with protection from unreasonable searches and seizures by the government. Although the Constitution provides such protection, it is not a guarantee against all searches and seizures, only those that are deemed unreasonable under the law. With some exceptions, if a search would be unreasonable, the Fourth Amendment requires the issuance of a warrant based on probable cause that describes the place to be searched and the person or thing to be seized. A warrant is a written order signed by a
judge in the name of the state that directs a peace officer to search for personal property, persons or items as specified by law (A.R.S. § 13-1911).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Prohibits state agencies, political subdivisions and their employees acting in the employee’s official capacity from doing the following if it involves the collection of electronic data or metadata of any person not based on a warrant that describes the person, place and thing being seized:
a) providing material support or assistance to federal agencies claiming the power to collect or complying with federal laws that authorize the collection of such data;
b) beginning January 1, 2016, using assets or state monies to engage in any activity that aids federal agencies, agents or corporations that provide services to the federal government in the collection of such data;
c) providing services to federal agencies, agents or corporations that provide services to the federal government involving the collection of such data; and
d) using any information in criminal investigations or prosecutions that was provided by federal agencies, agents or corporations providing services to the federal government obtained through the collection of such data.
2. Prohibits the State Treasurer from transferring monies to a political subdivision in the fiscal year after a final judicial determination is made that the political subdivision adopted a rule, order, ordinance or policy that intentionally violates the provisions of this act.
3. Disqualifies any agent or employee of the state or a political subdivision who knowingly violates the above provisions from serving on any commission, further deems that office vacant and forever prohibits the person from holding any public office in Arizona.
4. Exempts the use of electronic data or metadata that is voluntarily provided to a federal agency, federal agent or corporation providing services to the federal government from the provisions of this act.
5. Provides that the provisions of the act do not apply to the collection, provision or transmission of electronic data or metadata in the normal course of operations or research by a university that is under the jurisdiction of the Arizona Board of Regents.
6. Requires any electronic data or metadata collections, provisions or transmissions that are done in the course of university operations or research to comply with established institutional rules and regulations to protect the appropriate privacy and security of the electronic data or metadata.
7. Exempts data sharing between the state and the Federal Energy Regulatory Commission from provisions of the act.
8. Becomes effective on the general effective date.