Cave Creek takes on immigration issues
No real solutions as council takes ‘first steps’
by Brian DiTullio

CAVE CREEK – A long civics lesson produced no real solutions to Cave Creek’s day laborer problem but, to mixed reactions, a few “first steps” were taken.

Attorneys Scot Klaus and Gary Birnbaum of Mariscal, Weeks, McIntyre & Friedlander gave a lengthy presentation to town council and interested residents on the topic of illegal immigrants looking for work in Cave Creek and what the town could do about it from a legislative standpoint.

The answer?

Very little.

The result of their work is a non‑binding resolution requesting  town residents and businesses refrain from “encouraging aliens to unlawfully enter or remain in the United States and to comply with all laws regarding the employment of unauthorized aliens.”

The resolution also asks the federal government to do more about the problem and tasks Cave Creek’s town marshal to cooperate with government and other law enforcement agencies “in the enforcement of the immigration laws.”

While the resolution passed unanimously, several council members noted the resolution really has “no teeth.”

The council also conducted two first readings of proposed ordinances designed to, without violating the U.S. Constitution or anyone’s civil rights, discourage day laborers from seeking work in the Cave Creek area.

The first ordinance, a parking and traffic control ordinance, would prohibit people along the side of a road from soliciting jobs from passing motorists because of the safety hazard created when a vehicle stops in the middle of a roadway.

The second proposed ordinance, a “no loitering” ordinance, would make it unlawful for a person to “loaf, loiter, or congregate upon any sidewalk or walkway within the town so as to obstruct the use of such sidewalk or walkway by pedestrians.”

The no loitering ordinance contains a provision for a warning, meaning any peace officer who believes a person is breaking this law will be required to issue that person or persons a warning and request they disperse before issuing a citation.

Councilman Tom McGuire expressed reservations about both ordinances, noting the potential for abuse regarding the no loitering ordinance in particular.

This sentiment was shared by council members Ernie Bunch, Kim Brennan and Dick Esser. However, the votes for both first readings were 6‑1, with only McGuire dissenting. Bunch and Brennan indicated they would vote in favor of the first reading, but would be taking the next week to carefully review the ordinance and may change their final vote.

“These laws could have unintended consequences,” Brennan said.

According to McGuire, “This is over‑regulation.”

Esser, who joined the meeting via telephone from Southern California, said the language of the no loitering ordinance would make protesters who show up at Good Shepherd of the Hills Episcopal Church, demonstrating against the day labor program there, lawbreakers.

The question of whether the “freedom to assemble” clause of the First Amendment would be violated by the ordinance is a tricky one, Attorney Klaus said.

“It’s always a possibility someone could argue that,” Klaus said.

Vice Mayor Gilbert Lopez said he felt the rewards outweigh the risks in passing both ordinances.

Earlier in the meeting, Birnbaum and Klaus noted the resolution and ordinances presented were based on existing laws from other municipalities, such as the City of Phoenix and New York City. Those laws were challenged but upheld in court because they were found to be “content neutral” and narrow in their definition of what exactly was being made illegal.

While most of the presentation on constitutional law and case history dealt with what the town couldn’t do, it didn’t stop several members of the audience from asking what the town could do and why the attorneys weren’t giving council more to work with.

Birnbaum, answering one question in particular, noted that residents seem to want a few simple things, those being the town marshal told to approach a group of people with a certain skin color or dress and ordering them to leave town, ascertaining if those people are here illegally, or arresting them as suspected illegal aliens.

The crowd responded positively to this scenario, to which Birnbaum replied: “You do not have the right to do any of those things.”

He also tried to make this clear earlier in the evening, telling another person upset over the lack of options, “There is no ordinance to satisfy the public that the (United States) Supreme Court has upheld.”

Citing case law and the Bill of Rights, Birnbaum explained numerous times that the laws protecting this society apply to everybody, whether they were here legally or not.

Don Goldwater, a well‑known Republican Party activist, spoke briefly on the issue, citing more laws and ways local law enforcement could enforce immigration issues, concluding with a few words of encouragement.

“If there wasn’t a demand (for immigration law enforcement), these people wouldn’t be coming here,” said Goldwater, motioning to the audience. “It is up to the towns to band together.”

Mayor Vincent Francia noted what the town is doing are the “first steps” to resolving these issues.