Does SB1070 Prohibit Churches From Transporting People in Need?

There has been much discussion regarding Arizona’s SB1070 and its regulation of “transporting” people who “have entered or remain in the United States in violation of law.”  SB1070 was scheduled to go into effect on July 29, 2010.  On July 28, 2010, Federal District Court Judge Susan Bolton entered an injunction prohibiting Arizona from enforcing certain sections.  Judge Bolton did not enter an injunction on other sections including A.R.S. Section 13-2929, a part of SB1070. 

Pastors have increasingly expressed concern regarding A.R.S. Section 13-2929.  A.R.S. Section 13-2929 is, as of October 8, 2010 (the date of this e-newsletter) fully enforceable by Arizona law enforcement and is an increasing concern for churches that transport people as part of their mission and do not verify whether the passengers are in the country legally. 

A.R.S. Section 13-2929 states as follows: 

A. It is unlawful for a person who is in violation of a criminal offense to:

1. Transport or move or attempt to transport or move an alien in this state, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
     
2. Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.
     
3. Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.
     

B. A means of transportation that is used in the commission of a violation of this section is subject to mandatory vehicle immobilization or impoundment pursuant to section 28-3511.

C. A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.

D. In the enforcement of this section, an alien's immigration status may be determined by:

1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status.
     
2. The United States immigration and customs enforcement or the United States customs and border protection pursuant to 8 United States Code section 1373(c).
     

E.      This section does not apply to a child protective services worker acting in the worker's official capacity or a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician and who is transporting or moving an alien in this state pursuant to title 36, chapter 21.1.

F.  A person who violates this section is guilty of a class 1 misdemeanor and is subject to a fine of at least one thousand dollars, except that a violation of this section that involves ten or more illegal aliens is a class 6 felony and the person is subject to a fine of at least one thousand dollars for each alien who is involved.

If a church, in implementing its mission, routinely transports people without checking their immigration status, is there cause for concern?  Yes.  Although the statute was likely intended to address human smuggling, if a church transports people in the U.S. illegally, the church or the people arrested for violating A.R.S. Section 13-2929 could defend themselves (in addition to other possible arguments) by asserting the following:

1. The driver or “transporter” was not in violation of a criminal offense in the first place.    
2. The transportation was not “in furtherance of the illegal presence of the alien in the U.S.”
3. The driver or transporter did not know the alien has come to, entered or remains in the U.S. in violation of law.
4. The driver or transporter did not “recklessly disregard” the fact that the alien has come to, entered or remains in the U.S. in violation of law.
5. The church or its leaders, employees or agents are not “concealing”, “harboring”, “shielding” or attempting to conceal, harbor or shield” an alien from detection.
6. The church or its leaders, employees or agents are not encouraging or inducing an alien to come to or reside in Arizona. 

There is no exception or exemption for churches.  Church vans, buses or cars can be on the receiving end of enforcement and there are no exceptions or exemptions in SB1070 or in A.R.S. Section 13-2929.  The church may argue “free exercise of religion” under the Constitution, but it is unclear whether that argument would be successful. 

Unless and until the law changes or the issue is revisited in lawsuits regarding SB1070, A.R.S. Section 13-2929 is the current law in Arizona and anyone who transports people of unknown immigration status are potentially violating the law and should, at a minimum, be aware of this issue.