Case Explained: Arizona Republicans back bill to jail people for blowing whistles to warn of ICE presence – Legal Perspective

At the federal level, both U.S. Attorney General Pam Bondi and Department of Homeland Security Secretary Kristi Noem threatened to prosecute the developer of ICEBlock, a popular app on which users can report sightings of U.S. Immigration and Customs Enforcement agents. A lawsuit has yet to materialize, and legal experts say it would likely be unconstitutional. 

In the Grand Canyon State, the same issue turned into a local political back-and-forth when Democratic state Sen. Analise Ortiz used her social media to share ICE alerts that were initially posted by immigrant rights groups. The Republican leader of the state Senate quickly called for federal authorities to open an investigation into her social media activity. And while a Republican county attorney volunteered to take up prosecuting Ortiz, Arizona Attorney General Kris Mayes slapped down that attempt, writing that social media activity is protected under the U.S. Constitution. 

Lawmaker with a history of anti-First Amendment legislation tries again

Despite the legal issues raised by efforts to restrict free speech, Republican legislators in Arizona are hoping state law can be weaponized against anti-ICE activism. 

Sen. John Kavanagh touted his proposal as nothing more than a solution for cases in which people knowingly help others escape imminent arrest. The Fountain Hills Republican waved away accusations that the legislation could ensnare community activists and claimed it had been “misportrayed” by critics during a Wednesday afternoon hearing of the bill in the Senate Judiciary and Elections Committee. 

“Putting a text message out: ‘ICE is in the area,’ blowing whistles — none of that is made illegal by this bill,” Kavanagh insisted. “That is First Amendment protected speech. The courts have continuously ruled that, so I’m surprised that people are saying that’s what the bill does. I respect the law, I respect the Constitution, I respect the First Amendment.” 

It’s not the first time Kavanagh, a retired police officer, has sought to curtail the First Amendment rights of protestors and community activists. In 2022, on the heels of Black Lives Matter demonstrations, sponsored legislation that banned people from video recording within eight feet of police officers who were engaged in “law enforcement activity,” such as conducting an arrest. 

The courts have long ruled, however, that recording video falls under the free speech protections enshrined in the U.S. Constitution. The 2022 law was later blocked by a federal judge after multiple media organizations, including the Arizona Mirror, sued to stop it.

And while Kavanagh framed his newest effort as narrow enough not to jeopardize “general” warnings issued by anti-ICE activists, the language in the bill directly targets them. Under the proposal, a person commits “unlawful alerting” by “communicating” with someone about an impending arrest. That communication is explicitly defined in the bill as verbal warnings, gestures, electronic communications, signals or even the use of sounds, bells or whistles. 

Whistles have become the unofficial symbol of ICE alerts after immigrant rights activists in Minnesota began using them to warn their neighbors about the presence of federal agents in the area. And the broad category of electronic communications could mean activists who write social media posts tracking ICE raids across the Valley would also face repercussions.

Kavanagh claimed the bill seeks to address alerts issued during imminent arrests, describing a hypothetical situation in which agents with a warrant seeking to arrest a person at their place of employment are prevented from doing so by a coworker who knowingly warns them.   

“This is about letting the justice system work and not letting people pervert and subvert it by tipping people off who are about to be arrested,” he said. 

But Kavanagh’s legislation would apply far beyond that hypothetical.

The bill criminalizes tip-offs that happen during an “imminent or ongoing effort” to arrest another person, which is defined as anytime a law enforcement officer arrests someone with or without a warrant, is in pursuit, conducts surveillance or simply approaches the person who is arrested. 

In a bid to bump up detainment statistics, ICE agents have arrested people without warrants outside of everyday public spaces, like hardware stores and gas stations, with little more to prompt interactions than racial profiling-based suspicion. In Minnesota, immigration agents traveled up and down streets and stopped anyone they saw who was not white, detaining those who couldn’t immediately prove they were citizens.

Activists in Minneapolis blew whistles to let people know when such sweeps were occurring. Were Kavanagh’s bill to become law in Arizona, doing so here would become a crime.

Talking to people about their rights could be penalized

Along with jeopardizing the ability of community activists to exercise their constitutional rights and keep their neighbors informed, civil rights organizations warned that it would encroach on their educational efforts. 

Harrison Redmond, a community organizer for the Arizona branch of the American Civil Liberties Union, told lawmakers that the legislation is overbroad and could loop in efforts to teach people about their constitutional rights. 

Increasingly, pro-immigrant groups have gone out into neighborhoods where ICE agents are conducting arrests to share information about what rights people have when interacting with law enforcement authorities, including the right not to open the door without first seeing a warrant and the right not to answer questions without first speaking to a lawyer. 

Redmond said the bill gives law enforcement officers too much leeway to decide which statements or actions constitute impeding an arrest. The courts, he said, have long opposed criminalizing behavior simply because law enforcement officers feel it makes their jobs more difficult. 

“The Supreme Court has been clear for decades that advocacy and information sharing cannot be criminalized simply because the government believes it makes enforcement harder,” he said. 

Redmond called on the legislative panel to throw out the proposal, noting that it risks violating constitutional rights with little benefit to law enforcement officials, because state law already punishes impeding arrests. 

Under Arizona law, it is a class 5 felony to help a person avoid prosecution, apprehension or conviction by hiding them, giving them money or transportation, obstructing an act that might lead to their discovery or apprehension through force or deception, or warning them of an impending apprehension. 

ICE protest forces Republicans to flee

The Republican-controlled committee curtailed public input on legislation and swiftly shut down criticism of federal immigration officials. While multiple people showed up to oppose Kavanagh’s proposal, only five were allowed to speak. Their comments were limited to just 90 seconds. 

Toward the end of his testimony, Redmond read aloud a list of people who have been shot by ICE agents and who have died in detention facilities to underscore his argument that informing people about their rights is urgently needed and shouldn’t be criminalized. He was immediately cut off by Sen. Wendy Rogers, R-Flagstaff, the committee’s chairwoman, and she shut his testimony down. 

Rohit Chandrasekhar chastised Republican lawmakers on the panel for advocating to terminate a critical community defense, accusing them of heading a “state intimidation” effort. 

“We are watching masked ICE agents arrest people without transparency or accountability, families preparing emergency plans in case parents don’t come home, and now you want to silence the only warning system we have?” he told them. 

As Chandrasekhar continued lambasting lawmakers, his voice rose in volume and anger until he was nearly shouting into the microphone. Rogers attempted to gavel him into silence, but he ignored her orders to stop. 

“If defending our neighbors and defending free speech is considered a crime, look around you, because you are about to witness how many people are ready to defend,” he said, shortly before multiple audience members, many wearing black shirts emblazoned with “ICE OUT” in white lettering, stood up, raising their fists and loudly chanting, “No justice, no peace! No ICE on our streets!” 

Republicans on the panel quickly exited the hearing room through a side door while security escorted the crowd out. Democratic lawmakers remained seated and later joined protestors outside. It was several minutes before Republican lawmakers re-entered the room and Rogers called for a vote on the legislation, without making any attempt to call the committee’s three Democrats back in. 

Minutes before the voting wrapped up, however, the trio returned and requested permission to voice their opposition to the bill. Rogers appeared unwilling to allow them to do so, but after consulting with a staff member, who pointed out that voting had not yet officially ended, the Democrats were given permission to speak.  

Sen. Lauren Kuby, D-Tempe, criticized the proposal as another doomed attempt from Kavanagh to limit free speech, comparing it to his 2022 law that unconstitutionally restricted video recordings of police officers. She warned the new proposal similarly violates free speech rights and would also entangle the state in lawsuits. 

“We shouldn’t pass legislation that we already know will fail constitutional review and cost taxpayers millions in litigation,” she said. “This does nothing to improve public safety, it repeats a failed approach, it’s a cynical bill and it places Arizona on a collision course with the First Amendment.” 

Kuby ended her closing comments by reciting the commonly used protest chant of “no hate, no fear, immigrants are welcome here,” and voted against the bill. 

Ortiz, whose social media activity was the subject of Republican ire last year and would likely result in her criminalization under the proposal, said she wasn’t fooled by Kavanagh’s assertions that it wouldn’t hurt community activists. On the verge of tears, she criticized it for seeking to penalize people like Alex Pretti and Renee Good in Minnesota — both of whom were shot to death by immigration agents while protesting their actions — who she said were fighting against a “fascist government.” 

In an unusual move, Rogers limited the speeches of lawmakers to 90 seconds, cutting Ortiz off as she became increasingly emotional while she spoke about naturalized constituents who called her office to ask how they could stay safe amid increased ICE hostility. 

“Our communities are dying every single day,” Ortiz said in her concluding remarks before being forced to end. “They are being torn apart. I have constituents who are naturalized citizens calling me, asking do I need to carry my documents with me? This is a fascist bill and an unconstitutional bill and I vote no.” 

The proposal was ultimately advanced along party lines, with all three Democrats opposed. Sen. Shawnna Bolick, R-Phoenix, voted to move the bill forward but added that her support when the full Senate considers the bill would not be guaranteed, saying that she expects Kavanagh to narrow its scope because Arizona law already criminalizes hindering an arrest. 

Even if the bill earns the approval of both of the Republican-majority legislative chambers, it will almost certainly fail to pass muster with Gov. Katie Hobbs, who has consistently vetoed bills that do not gather bipartisan support.