The government’s fundamental responsibility is to protect “the safety and indeed the lives of its citizens.” United States v. Salerno. But President Joe Biden has abandoned this responsibility by refusing to enforce federal law to protect the border. As a result, the lives and property of the people are under attack by the Mexican drug cartels.
My hometown of Yuma, Arizona, has witnessed how Biden’s “open border policy” has allowed cartels to tighten their grip on the border, allowing them to spread violence and bloodshed across Arizona. Cartels make billions of dollars selling lethal drugs such as fentanyl, causing the deaths of tens of thousands and destroying communities. They also get rich by abducting children and selling them into sexual slavery, as well as by transporting hundreds of thousands of persons illegally across our border. It’s a national disgrace.
The people of Arizona recognize that Biden is not coming down to the border. The federal government has abandoned us, and we need to consider new and innovative ways to ensure our safety. Although Arizona cannot enforce federal immigration laws under the doctrine of preemption, see Arizona v. United States, it can secure its borders by enforcing its 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 the federal government’s power to enforce its immigration laws, police powers are reserved for the states under the 10th Amendment of the Constitution.
The plan I propose as your attorney general is called the “No Trespassing Zone.” Relying on Arizona’s criminal laws, sheriffs and police, working with local county attorneys and the attorney general, can use their authority to create a “No Trespassing Zone” on state and private land. The plan begins with sheriffs and local police officers, using drones, high-quality hidden cameras, and other intelligence resources, to patrol the corridors, pathways, and pinch points on state and private land where cartels travel from Mexico into the U.S. — the “Zone.” Some locations will be directly adjacent to the border with Mexico. But because large sections of Arizona’s border consist of reservation and federal land, where the state does not have jurisdiction to enforce its criminal laws, the first entry point on state or private land may be located several miles from the border.
To enforce Arizona’s trespassing laws, “No Trespassing” signs must be placed at regular intervals along state and private land to provide “reasonable notice” prohibiting entry. On private land, signs will be erected with the landowner’s consent. In the case of state land, signs will be erected in coordination with the governor and State Land Department.
Next, when cartel members and their associates, including persons they are illegally transporting into Arizona, enter state and private land, law enforcement will arrest them for criminal trespass, as well as other related crimes supported by the facts of each case. These related crimes include disorderly conduct and breach of peace, trespass of a fenced residential yard, criminal littering, criminal damage, and forgery and taking the identity of another if they possess forged documents such as Social Security cards and driver’s licenses used to work in the U.S. Upon arrest, law enforcement officers may perform a lawful search incident to arrest, allowing them to seize criminal property and assets being transported by cartel members and their associates, including illegal weapons and drugs. See Chimel v. California and Maryland v. Buie.
Following arrest, county attorneys, with oversight and support 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 crimes committed while trespassing. Additionally, the evidence seized during their search incident to arrest will provide law enforcement with the means to investigate cartels and their associates for more serious crimes, including murder, organized crime, drug trafficking, criminal street gangs, money laundering, racketeering and corruption, and sexual exploitation of children.
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.
Judge Andrew Gould, is a former justice on the Arizona Supreme Court and current candidate for Arizona attorney general.
