Appeals court knocks down illegal alien gun law

Phoenix - A 3-year-old state law aimed at illegal entrants who carry guns can't be enforced unless prosecutors also show the weapon was somehow involved in interstate commerce, the state Court of Appeals ruled Thursday.

The judges unanimously rejected arguments by the Maricopa County Attorney's Office that Israel Perez could be charged with being a "prohibited possessor'' simply by virtue of being in this country illegally and having a gun. They said that's not the way the law reads.

And Judge Ann Scott Timmer, who wrote the decision, said if prosecutors are unhappy about that, they should ask legislators to amend the statute. Thursday's ruling, unless overturned, means Perez gets to go free - assuming he is not deported.

Potentially more significant, it could undermine other cases where county attorneys are using that 2004 law to prosecute illegal entrants with guns.

Federal law already makes it a crime under some circumstances for people not here legally to possess weapons. But legislators were told in 2004 that meant it was up to federal agencies to decide whether to bring charges.

This bill was aimed at letting local police and prosecutors handle the cases. In this case, Perez was stopped earlier this year by Mesa police after he was observed speeding and weaving through traffic. Perez was arrested when he failed to produce identification and instead giving officers what appeared to be a phony Mexican driver's license.

A search revealed a .38 caliber revolver in the vehicle's center console. And a subsequent fingerprint check turned up the fact that Perez had been deported three prior times, each time returning with a different identity.

That led to the weapons charge.

Timmer noted the original legislation covered anyone who is an "undocumented alien or a nonimmigrant alien traveling with or without documentation.'' That language, however was replaced in the House instead with a reference to federal laws which define who is a "prohibited possessor.''

That, said Timmer, is what allows Perez to escape prosecution. She pointed out the federal law mentioned in the state statute specifically deals with illegal entrants who have weapons which have been "shipped or transported in interstate commerce.'' And Timmer said the Maricopa County Attorney's Office, in charging Perez, provided no such proof.

The judge rejected arguments by prosecutors that the law should be interpreted according to what they said was the real intent of the Legislature.

She said lawmakers could have allowed the prosecution of all illegal entrants on weapons charges had they adopted the version of the bill that passed the Senate. Timmer said the fact the House Judiciary Committee specifically chose to alter that language and instead refer to the federal code - language subsequently ratified by the Senate - is what the court has to use to determine legislative intent.

A spokesman for the Maricopa County Attorney's Office said lawyers there were studying the ruling before deciding whether to take the issue to the Supreme Court.