“No Trespassing Zone” — Arizona’s Border Security Plan
By: Andrew Gould
The fundamental responsibility of government, at the federal, state, and local level, is to protect “the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U.S. 739, 755 (1987). However, the President and Congress have abandoned this responsibility by refusing to enforce federal law to protect the border. As a result, the lives and property of Arizona’s citizens are under attack by the Mexican Drug Cartels and criminal gangs invading our southern border. Inaction by the federal government has allowed cartels to gain operational control of the border, which in turn has empowered them to spread violence and bloodshed across our state, make billions of dollars transporting fentanyl, methamphetamine, and heroin, and move hundreds of thousands of persons illegally across our border.
It is time for Arizona and its law enforcement officials to take action to protect its citizens. As your next Attorney General, I will take aggressive action to restore law and order on our border and remove the scourge of violent cartels from our state. Destroying the cartel’s operational control of the border will protect Arizonans by disrupting and dismantling their criminal activities, including illegal human smuggling and drug trafficking.
State lawsuits seeking to compel the federal government to enforce federal immigration and criminal laws play a vital role to ensure border security, but these lawsuits alone are not enough. Arizona must also use its existing criminal laws to protect its citizens and their property from cartels and their associates.
Arizona cannot enforce federal immigration laws (U.S. Const. Art. I, § 8, cl.4; Arizona v. United States, 567 U.S. 387 (2012). However, we can improve border security by enforcing our criminal laws against cartels and their associates. Arizona’s criminal laws are not preempted by federal law. Rather, Arizona, like all states, has the authority to enact and enforce criminal laws based on its “police powers.” Unlike immigration laws, police powers to ensure public safety are reserved to the states under the Tenth Amendment of the United States Constitution.
The simple, common-sense plan I propose is what I refer to as the “No Trespassing Zone.” Relying on Arizona’s criminal laws, the Attorney General has the power to organize and focus state law enforcement and prosecutors on border security. The Attorney General has statewide jurisdiction to enforce a wide variety of criminal laws and the authority to supervise County Attorneys (see A.R.S. § 41-193). Under the direction of the Attorney General, state law enforcement and state prosecutors, using their authority under state law, can create a “No Trespassing Zone” on state and private land.
The No Trespassing Zone Plan
STEP ONE – DETECT: Sheriffs and local police officers, supported by drones, high-quality hidden cameras, and other intelligence resources, will patrol the corridors, pathways, and pinch points on state and private land where cartels enter/travel from Mexico into the United States. Some locations will be directly adjacent to the border with Mexico. However, Arizona does not have jurisdiction to enforce state laws on federal and reservation land, and large sections of the border consist of such land. As a result, the entry point on state or private land (e.g., where cartel members and their associates exit reservation or federal land) patrolled by law enforcement may be located several miles from the border.
STEP TWO – WARN: No trespassing signs must (with the landowner’s consent) be located at regular intervals along the No Trespassing Zone to provide “reasonable notice” prohibiting entry. See A.R.S. § 13-1502; see also A.R.S. §§ 13-1503, -1504). Additional notice may be provided by erecting fencing or barriers surrounding the state or private property.
STEP THREE – ARREST: Police officers and sheriff’s deputies may arrest cartel members and their associates, including persons they are illegally transporting into Arizona, for criminal trespass when they enter or leave a No Trespassing Zone. Other crimes may be involved as well, including, but not limited to: disorderly conduct/breach of peace, trespass of a fenced residential yard, trespass of a fenced commercial yard, criminal littering, criminal damage, and unlawful flight from law enforcement.
STEP FOUR – SEARCH AND SEIZE: Upon arrest, law enforcement may perform a lawful search incident to arrest. See Chimel v. California, 394 U.S. 752 (1969); Maryland v. Buie, 494 U.S. 325 (1990). Based on this lawful search, state law enforcement will have the authority to seize criminal property and assets being transported by cartel members and their associates, including illegal weapons and drugs, such as fentanyl, methamphetamine, and heroin.
STEP FIVE – LIBERATE: Following the arrest of cartel members and their associates, law enforcement will liberate any children and persons who are being transported by the cartel for the purposes of child exploitation and human sex trafficking and return them to their families.
STEP SIX – PROSECUTE TRESPASS: County Attorneys, with oversight by the Attorney General, will, when there is evidence to do so, prosecute cartel members and their associates for trespass and violations of other state law crimes committed while trespassing on state and private land.
STEP SEVEN – INVESTIGATE: Based on the evidence seized during their search incident to arrest, law enforcement will investigate cartels and their associates for more serious crimes, including: murder, organized crime, drug trafficking, criminal street gangs, money laundering, RICO, and crimes involving sexual exploitation of children.
STEP EIGHT – SUPPORT: Using their expertise and resources investigating organized crime, the Attorney General’s Office and the Department of Public Safety, will assist and coordinate with local prosecutors and law enforcement investigating cartels and their associates for more serious crimes. To support this effort, the Attorney General will staff Border Offices in Yuma, Nogales, and Douglas.
STEP NINE – PROSECUTE CARTELS: The Attorney General, in coordination with local County Attorneys, will prosecute cartels and their associates for their organized crime and criminal street gang activities.
STEP TEN – ASSET FORFEITURES: In conjunction with criminal prosecutions, the Attorney General, in coordination with local county attorneys, will investigate and conduct civil forfeiture proceedings regarding illegal cartel assets and property.
The No Trespassing Zone policy can be implemented with existing resources, but to be fully effective, additional funding may be needed, including:
State grants to fund additional sheriff’s deputies and police officers to enforce the No Trespassing Zone.
Funding for No Trespassing signs and fencing for landowners, as well as drones and cameras to monitor the No Trespassing Zone.
Funding and agreements among county jails and the Department of Corrections to house the initial surge of arrestees and inmates from enforcement of the No Trespassing Zone.
Civil forfeiture of cartel assets and property will be used to offset the cost of implementation and enforcement.
Upon conviction, the penalty must fit the crime. Cartel members transporting drugs and guns and engaging in human trafficking will be punished the most severely, with prison sentences ranging from five years to life. Next, “illegal aliens” who have been subject to prior removal or convictions for illegal entry will receive lesser sentences, typically ranging from one to five years in prison. And those who paid the cartels to assist them in entering the U.S. illegally will be offered plea agreements that, in lieu of serving a prison sentence, will stipulate time served in jail and unsupervised probation with two standard conditions: Obey all laws and voluntarily return to Mexico.
The No Trespassing Zone relies on a fundamental principle of law enforcement: To deter crime, there must be consequences for violating the law. Whether the penalty is a lengthy prison sentence for a cartel member or a more lenient sentence for a trespasser, the law must be enforced when there is evidence to prove that a crime has been committed. Many people have fought and died to preserve the ideal that America is a nation of laws. To honor those sacrifices and to protect the lives and property of our citizens, we must enforce those laws.
As past policies have shown, the costs for this plan will decrease as the cartels face strict enforcement and disruption of their illegal activities in Arizona. Simply put, the cartels will not continue to lose money – the lifeblood of their operations – while their associates are arrested, and criminal assets seized, in the No Trespassing Zone.