AZ bill makes 'illegal warning' about law enforcement a crime. Democrats say 'it targets speech'

State lawmakers are advancing a Republican proposal to make criminals out of those who warn others that they are in "imminent or ongoing'' threat of being arrested or picked up by Immigration and Customs Enforcement.

But there is a debate about exactly what is in Senate Bill 1635 that could land Arizonans in jail.

Legislative Democrats said the measure is so broad that police could arrest someone for simply warning neighbors that ICE is in the neighborhood. And that, they argue, is a violation of First Amendment rights.

Sen. John Kavanagh acknowledged the original version of his legislation could have been interpreted to do that. In fact, the Fountain Hills Republican admitted he crafted it after Democratic state Sen. Analise Ortiz posted the location of ICE agents in her Phoenix neighborhood, targeting activities not just like that but even people blowing whistles to warn of the presence of federal agents.

But he conceded that would not pass constitutional muster. So he said the version that was just approved by the House is narrower, targeting only those who notify someone who they know is being sought by law enforcement.

Kavanagh said there already are laws that make it a crime to physically obstruct police who are trying to make an arrest. What's needed, he said, is something to criminalize those who obstruct police by warning those police are seeking.

The measure has alarmed Democrats.

"It targets speech,'' said Rep. Nancy Gutierrez. "It criminalizes communications itself.''

The problem, said the Tucson Democrat, is the breadth of what the legislation defines as an illegal warning. That includes everything from bells and whistles to electronic communications, gestures, written messages and even "any other method of conveying information'' that is not specifically listed.

More to the point, those are exactly the things that some lawmakers are doing to warn people about ICE activities.

"My colleagues and I have reached out to our communities when we are hearing about ICE in a neighborhood and when we are wanting to prevent the random kidnapping of our citizens,'' Gutierrez explained.

"So we let people know: This has been seen at this corner or at this grocery store, or people have been seen here, be careful if you are in that area,'' she said. "This bill would make that illegal.''

Kavanagh, however, contends that's not what the bill does — at least not now.

He added language to his original Senate bill to say that a crime occurs only when it is designed to hinder, delay or prevent the lawful arrest of another "specific'' person.

That, Kavanagh explained, eliminates the possibility of arrest for someone who simply warns others that there are ICE officers — or any other law enforcement — in the area. He said the law would apply only when someone knew that another specific person was being sought and then warned that other person.

Gutierrez, however, said she remains unconvinced that the language is narrow — and that the state should make any of that a Class 1 misdemeanor which carries up to six months in county jail and a $2,500 fine.

Consider, she said, if she has a neighbor whose legal status may be in question. That, Gutierrez said, could include people who have followed the law and applied for asylum -- people who are still being swept up by ICE as they go to their immigration hearings.

"I go to that neighbor and say, 'Hey, ICE is coming to our neighborhood,' then I can be arrested for telling my neighbor because it's one specific person?'' she asked.

Ditto, Gutierrez said, if she finds out that immigration officials are coming to a school.

"Why shouldn't I be able to say specifically to a family, Hey, you don't want to be here, this is what we're hearing is happening,'?'' Gutierrez said.

Kavanagh, however, said that she would remain free to do just that even if his bill becomes law. And the key, he said, is that provision which says it's only illegal if someone is warning a "specific'' person that law enforcement is coming for them.

"You don't even know if the police are coming for that person,'' Kavanagh said of Gutierrez's example of telling a neighbor that ICE is in the area.

So what would be illegal?

"If police get out of the car and said, 'All right, let’s serve this warrant on Joe Blow' and you quickly walk to the back yard where you know he is barbecuing and said, 'ICE is here to get you,' then it would,'' he said.

Kavanagh, a former police officer, acknowledged that, if he had his way, the legislation would read exactly the way the Democrats fear. But that, he said, isn't an option.

"Courts have ruled that it's a First Amendment right to post on the internet 'Police are on Fifth Avenue and 23rd Street,'" Kavanagh said.

"It's a First Amendment right if you see ICE coming down the street to blow a whistle and say, 'ICE is here,' '' he said. And that, said Kavanagh, required him to recraft his bill to avoid those constitutional issues.

But House Minority Leader Oscar De Los Santos isn't convinced that the lines Kavanagh said his legislation draws are as clearly as the senator suggests. The Laveen Democrat said he still believes that what's in SB 1635 could make criminals out of people who he believes are really doing nothing wrong.

"This bill includes a lot of language including things like 'interference' or 'assisting' or 'harbor' that are undefined,'' De Los Santos said.

"Because they're undefined they are vague and could be used in a sweeping manner, in an overly broad manner,'' he said. "And my fear is that, because of the poor draftsmanship of the bill, it is not only unconstitutional but potentially you could have a case where somebody could be arrested or charged with crimes simply for going around and educating their community about their rights.''

While Kavanagh said he's convinced the legislation as it now stands will withstand legal challenge, it still was designed with the possibility that a court could find that parts are unconstitutional.

Kavanagh included a "severability'' clause. It says if any part of the act — or even how it is applied to any person or circumstance — is found by a court to be legally invalid, it does not invalidate the entire statute.