The case that let Arizona criminalize immigrants in a way no one in the country had ever done before.
Illustration by ALSO for the Sasabe Republic
ONE Saturday night in April of 2005, Patrick Haab, a twenty-four year-old Army reservist, drove home to Mesa, from San Diego with his dog, .38-caliber handgun, .45-caliber handgun, and 134 rounds of unused ammunition. Along the way, he stopped at a rest area to walk his dog. It was after 9 o’clock and dark, but the rest area was lit well enough to see, first, the Suburban with the California plates, and then a man with a backpack walking towards it. Suddenly, Haab saw five or six more men “come barreling across the field and jump into the Suburban” at which point, he reached for his revolver.
The men, from the Mexican states of Sinaloa and Oaxaca, were on their way to Stockton, California, to live with relatives and work. In age, they ranged from 19 to 33, and in height from 5’3 to 5’8 — at 5’11 Haab was the tallest and the biggest, with both the stature (athletic) and haircut (high and tight) typical of a man in the military. Still, he seemed uneasy, questioning the men, at several points that night: Do you guys have any weapons? Do you guys have any weapons?! (They did not.)
Haab followed the men to their car, shoved his foot in the door so it wouldn’t close, took the keys from the driver, and called 911 to say: “Yeah, I’ve got some illegals out here.”
A total of three dispatchers slowly put together why Haab was calling, not getting perhaps the most pertinent detail of the call until late into the conversation, when the third dispatcher asked: “So, they’re all just sitting there minding you, huh?”
“Yeah,” he told her. “I’ve got a — I got a firearm.”
“Oh,” the dispatcher said. “I see.”
This would be something she’d need to let the units she was sending to the rest area know about — “Okay?”
Haab said that it was. He knew under Arizona’s Open Carry law any adult person who is not a “prohibited possessor” may carry a weapon so long as it’s visible to others. Of deeper concern, he felt, were the seven men in the Suburban. “Should I just keep them in the vehicle?” Haab asked. “Or splay ‘em out on the ground?”
“Ya know,” the dispatcher said back to him. “I can’t tell you one way or another ‘cause I’m a dispatcher. I’m not an officer. So I guess… do whatever you feel is appropriate.”
And Haab would say, later, from jail, that he did exactly this, exactly what he felt was appropriate: He got another gun from his car, asked a man at the rest stop (a “civilian” who spoke Spanish) to help, and told the men to get out of the car and lay face down on the ground. Haab checked the vehicle for weapons. “Training was still in effect at this time,” he said. “I was just doing what I was taught in the military.” So it was something of a surprise, then, when the very sheriff’s deputies Haab had called to help arrived on scene and promptly arrested him, took him to jail, and booked him on seven counts of aggravated assault with a deadly weapon.
DEPUTY Don Hess was patrolling his standard 5,000-square-mile area around the town of Gila Bend — happily, for this is why Hess became a deputy in the first place, for the open spaces — when he received a call from dispatch, asking him to respond to the Sentinel Rest Area, where he was told there was an Army sergeant who had “seven illegals and he had them at gunpoint.”
Because of his patrol area’s proximity to Sonora, Hess specialized in drug interdiction, and was used to dealing with border-related activity. This call, though, alarmed him. Mainly, he was concerned someone was going to get shot. So he called Haab, right away, and Haab told him essentially what he’d told the dispatchers: that he and a civilian were “removing illegals from a Chevy Suburban at gunpoint.” He sounded relaxed to Hess, and appeared the same to the first deputy who arrived on scene and found Haab calmly sitting on a gas can next to the Suburban, his gun tucked into his shorts. It was a calm that faded considerably when this first deputy put Haab in back of his patrol car, and even more so when Hess arrived to question him.
It was at this point that Haab’s story seemed, to Hess, to change. “A whole group of people came out of the desert,” Haab said, “and began to rush me.”
“Is that the story you’re going to go with?” Hess asked. “‘Cause you told me something different on the phone five minutes ago and you told our dispatchers something different.”
The problem, as Hess saw it, was that Haab had not said anything about getting rushed when they’d spoken on the phone. The seven Mexican men also did not say they’d rushed Haab — in fact, a through line in their accounts was that Haab had rushed them. “We began to run to the white Suburban and the man began to run after us,” Fernando Gutiérrez León said. His brother, Vicente, told Hess separately, but similarly: “We were coming out of the brush when he threatened us with a weapon; he told us to stop or he would shoot.” The variations in the men’s versions of the events — the color of the weapon Haab had used, estimates in distance — were inconsequential to Hess’s main point and central line of questioning: Did Haab point his gun at you? And were you afraid for your life? It is a felony to point a gun at someone in Arizona. It turned out that Haab had pointed his gun at each of them, while in the car or on the ground. And all of the men said they had feared for their lives.
IN the year before Haab’s arrest, Border Patrol agents apprehended 1,139,282 unauthorized immigrants along the Southwest border; at least 491,771 of these apprehensions happened in the Arizona borderlands alone. These numbers were as huge as they were inconclusive (CBP does not, of course, keep data on the number of migrants they don’t catch), and seemed to at least partly account for the boom in citizen militia groups that were multiplying all along the U.S.-Mexico border. There was the “Civil Homeland Defense” and “American Border Patrol,” and perhaps most famously, the “Minuteman Project,” whose mission was to “do the job our government refuses to do.” As a matter of fact, just days before Haab’s arrest, Minuteman founders Chris Simcox and Jim Gilchrist had alerted media outlets that the group would be camping along the border for the entire month to “protect America.”
Haab was not affiliated with the Minuteman Project; in fact, he told reporters, he’d never heard of it. “I wasn’t too aware of what was going on,” he said during an appearance on The Sean Hannity Show. “I just moved here recently from Indiana. So, I mean it’s not a border state. We don’t have any problems at all.” But the potential for parable was hard to resist: Robert Anglen and Susan Carroll called first piece on the incident for The Arizona Republic “Case sounds vigilante alarm” and wrote that the arrest “renewed concerns about vigilante justice and violence along the Arizona-Mexico border.”
But an increasingly enraged sector of the American public saw the moral in the Haab story differently. It was a rage directed often, but not exclusively, at the federal government, and was perhaps most calmly expressed by a commenter who posted, under “DustyMoment” on freerepublic.com, “When an American citizen faces arrest and confinement for making a lawful citizen’s arrest against a group who are in the county unlawfully, something is terribly wrong.” Supporters wrote to Haab to offer him money, a place to stay, and free legal help, and just four days after he was sent to jail, a local locksmith and perfect stranger, Bill Weingard, posted his $10,000 bond. He told Anglen of The Arizona Republic for his follow-up piece, “Soldier overwhelmed by support since arrest”, that he believed Haab was a scapegoat, and that he didn’t want authorities to make an example out of him because of border issues.
In fact, Weingard didn’t need to worry — the authority tasked with prosecuting Haab, Maricopa County Attorney Andrew Thomas, wouldn’t, in the end, do so. If Haab’s arrest, however unwittingly, had revealed the depth and extent of so many Arizonans’ — indeed, Americans’ — fury at Mexicans moving north, it would be Thomas’s handling of the event that gave this fury its most tangible tool in getting the immigrants out, for good.
AT the time of Haab’s arrest, Thomas had only been county attorney for three months, and he’d only been at the county attorney’s office for about one year. Before this, he worked for the state in a variety of posts (assistant Attorney General, criminal justice policy advisor to the governor, chief attorney at the the Department of Corrections) and published several articles and books in which he explained that he was against plea bargains, day care centers, and “fetal homicide,” and for the enforcement of vagrancy laws, obligatory community crime surveillance, and a return to publicly incarcerating criminals in stockades.
Such extreme conservative credentials made comparisons to Maricopa County Sheriff Joe Arpaio inevitable, whose own tough-on-crime approach was then in clearest evidence at Tent City, the outdoor jail where he housed inmates in black and white striped clothes and prohibited salt, pepper, coffee, and the Disney Channel. Paul Rubin of the Phoenix New Times wrote that Thomas was Arpaio’s younger, more intellectual doppelgänger (Thomas went to Harvard Law School), but he also at least touched upon what he suspected was perhaps their most fundamental difference. “It’s hard to know if Arpaio is doing all that cartoonish stuff mostly for show… oafishly trying to feed the hovering media beast,” Rubin wrote. “With Thomas, there’s no doubting.”
The other dissimilarity was more significant — mainly because after the Haab case, it ceased to be a dissimilarity — and this was the character of the two men’s criminal targets. At the time, Arpaio preferred pursuing hookers, deadbeat parents, and alleged animal abusers. Thomas’s focus, on the other hand, seemed to be farther south. In 2005, Arpaio’s adventures in immigration enforcement had not begun — in fact, in his first 13 years in office, there is no record of him making any notable public statements on illegal immigration, or investing any county resources to stop it. Meanwhile, Thomas seemed acutely aware of how politically palatable the issue was; the campaign signs he posted around town, in his 2004 run for office, read STOP ILLEGAL IMMIGRATION.
This campaign platform struck many in the legal community as odd, and somewhat tangential to the responsibilities traditionally ascribed to a county attorney — though Thomas was definitely not the first politician in Arizona to want the issue within his dominion. In fact, for years, state officials had been trying to assert themselves in the fight to police immigration, constitutionally a matter of federal jurisdiction, with limited success. As early as 1996, Russell Pearce, then the director of the Department of Motor Vehicles, wrote a law demanding proof of citizenship to obtain a driver’s license, and in 2004, the “Protect Arizona Now” committee authored an initiative denying migrants public benefits. (It passed 56% to 44%.) These laws made being in the state difficult for undocumented immigrants, but it did not make it a crime. So far, no one in Arizona had been able to accomplish this, which is one reason why it looked to be an especially formidable goal for an elected official at only the county level.
In addition, the Haab case seemed an unlikely opportunity for Thomas to make much headway in stopping illegal immigration. The men Haab detained were determined to be unlawfully present, but they were, at least initially, perceived to be victims. This is how Deputy Hess had identified them in his report, and it’s how Deputy County Attorney Liz Gilbert was proceeding with preparations for prosecution; she even coordinated with the U.S. Attorney’s office to ensure that the men weren’t deported until the state’s investigation was complete. To both Hess and Gilbert, the Haab case was unremarkable, absent of political potential. When it landed on Gilbert’s desk, she told me she thought it was “a run-of-the-mill, ag assault with a weapons case.”
But it would soon become clear that it was not — not to Thomas. He told reporters that he “carefully analyzed the events of the case” to see where the law applied, but the case came too close to Thomas’s campaign for statements like this to be taken as much more than euphemistic. Even those whose stake in the case were squarely on the county attorney’s side were circumspect of his stated neutrality; Haab’s lawyer, Doug Loefgren, put the problem like this: “The charges were inconsistent with his political campaign.”
The task for Thomas then was to present the event at the rest area as within Arizona’s legal definition of a citizen’s arrest. It was not an easy task. A citizen’s arrest in Arizona is only legal if the people arrested have committed a felony or a misdemeanor amounting to a breach of the peace. The men Haab detained were undocumented, but undocumented status alone is not a felony or a misdemeanor. It is a federal misdemeanor to illegally cross the border the first time, but not the kind of misdemeanor that amounts to a breach of the peace. So Thomas looked to other laws, and when he finally found the one he could interpret in such a way as to vindicate Haab (and, it was argued, make migrants felons — forever keeping them from a legal pathway to citizenship), he called Gilbert up to his office to tell her about it.
The discussion centered on a relatively new state law, A.R.S. 13-2319, which made it a felony to “intentionally engage in the smuggling of human beings”; smuggling was defined as “the transportation, procurement of transportation, or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported… are not United States citizens.” The purpose, the authors of the law said, was to protect undocumented migrants from their smugglers, who had been known to rob, rape, extort, or otherwise abuse their clients. But Thomas was prepared to make the case that the law meant something else entirely.
Together with his Chief Deputy, Phil MacDonnell, he explained to Gilbert what he’d soon explain to the press: Haab had conducted a citizen’s arrest, because the men from Mexico had committed a felony. The felony they’d committed was conspiracy — they had, Thomas said, first to a bewildered Gilbert, and then to an equally bewildered room full of reporters, “conspired” with their smuggler to “smuggle themselves.” He cited both Arizona’s conspiracy statute and the new smuggling law as grounds for his legal interpretation. Then he told Gilbert that she was not at liberty to share any of this with anyone from the sheriff’s office. Thomas would take care of that himself — he was planning on calling Arpaio a full five minutes before the press conference.
I can’t believe what I’m hearing, Gilbert thought to herself. Is this really the message we’re sending? She returned to her desk to find her phone ringing and her pager “blowing up” — hardly surprising, considering that someone from the sheriff’s office had tried to come into the building earlier, and been denied. The detective she’d been working with called her immediately: What is going on?! It was painful for Gilbert to not tell him. In the nearly ten years she had been with the county attorney’s office, she’d valued her relationships with the detectives more than anything else, and prided herself on the reputation she’d built as an attorney who would make things happen with the cases they brought her, and even, when called for, up the charges. Indeed, in the Haab case, she’d considered adding seven counts of kidnapping, because he hadn’t let the men leave. So, in lieu of listening to her phone ring, she went back upstairs to the bosses’ floor, and listened to Thomas begin his press conference. He addressed both the reporters in the room and the federal government in Washington, calling the case a “wakeup call.” Thomas gave no indication that he’d wait for the federal government to heed his call though; instead he announced that he himself intended to do what he could to “render justice to individual cases while addressing this problem… on a broader scale.” Six days later, all criminal charges against Haab were dismissed.
“PLEASE forward this request to the appropriate official at the Department of Justice,” Roberto Reveles, a retired congressional staffer, asked in an email dated April 29th, two days after the charges against Haab were dropped. He went on:
“As one who travels the exact route where this incident took place, I ask that the recent apprehension and subsequent release of Army reservist Patrick Haab be investigated. We Hispanic Americans are coming under an increasingly bitter attack by those who are taking the law into their own hands in futile but dangerous actions that threaten the safety of our population and that fly in the face of the rule of law — regardless of how one feels about Mexican immigration outside the regular channels. Please investigate the atmosphere of fear being engendered in Arizona and the actual violation of human rights represented by the Haab outrage. Sincerely, Roberto A. Reveles.”
“Outrage” was a word very much in the lexicon that spring, frequently used to describe the feelings that surrounded both the specific case of Patrick Haab and the larger issue of immigration it touched upon. The East Valley Tribune’s editorial board wrote that “given the… public outrage over Haab’s arrest… it’s doubtful a jury would have found Haab guilty of anything”; inversely, former Arizona Senator Alfredo Gutierrez told Robert Anglen, that, “to allow a citizen to pull a gun because he was ‘rushed’ by Mexicans is an outrage.”
Other reactions ranged from straight repudiation (“Individuals can’t be charged with aiding and abetting their own smuggling… that is federal law,” Sandy Raynor, with the U.S. Attorney’s Office in Arizona, said) to a sort of awkward confusion surrounding the contradictions in the case’s dismissal. Thomas said Haab had conducted a legally-sanctioned citizen’s arrest because he knew, or was at least able to guess beyond probable cause, that a crime had been committed. In the 9-1-1 call, Haab called the men in the Suburban “illegals” repeatedly, but in his many media appearances following his release, he explained his actions quite differently: as purely a matter of self-defense. It was an inconsistency glaring enough that even John Hook, on The Sean Hannity Show, felt the need to address it.
Hook: You know, that night — and this is where we get into this quirky area about this whole thing — that night you felt threatened, but you said you did not know that they were illegals at first.
Hook: But because it turns out they were, you’re cleared because you stopped the commission of a crime.
Haab: Well, uh, the county attorney just gave one instance there of how I was in the right…
Among the dissenters was a very vocal Sheriff Arpaio, who continued to maintain that his “deputies had done the right thing” and that Haab’s story didn’t “pan out.” His statements were both cautionary (“You can’t just go around pointing guns, loaded guns at people because they may look like they’re from Mexico”) and somewhat noble (“We did what we felt was right enforcing the law and protecting people — all people”), and though they seem almost inconceivable now, given the path he’s since pursued as one of the country’s most ruthless immigration enforcers, they were at least enough at the time to ingratiate himself to some local Latino leaders. Lydia Guzmán, who would later start the hotline Respect Respeto in part to mitigate the effects of Arpaio’s “crime suppression sweeps” in predominantly Mexican-American neighborhoods, remembers going to Scottsdale to watch Arpaio receive an award for his service to the Latino community.
OF COURSE, the sheriff’s office was not done. Shortly after detectives closed the investigation on April 26th, Arpaio sent a letter to Lt. Colonel David Richardson, with the Civil Affairs and Psychological Operations Command, in Fort Bragg, North Carolina, requesting Haab’s military records, including all of the criminal, civil, administrative, or disciplinary actions taken against Haab during his military career.
A few weeks prior, Richardson had contacted the sheriff’s office to say that he had “important information pertinent to the case” which included reason to believe that Haab had obtained a “$12,000 Barret .50 caliber sniper rifle.” Any shot from such a rifle, Richardson told me, “is a killshot.” It could punch through a police car without any problems, he said.
Months later, anecdotes such as this one appeared in an Arizona Republic cover story “Files refute reservist’s Iraq story.” The piece chronicled a sad sequence of events, beginning with Haab’s time in Kosovo, in which he appears to have started strong, winning multiple service awards even, but then unravels, becoming, as his superiors noted, “distant, uninterested in training and paranoid” — so much so that he was eventually transferred back to the U.S. for a mental health evaluation in Fort Bragg. Anglen’s main point seemed to be that Haab “described himself as an Iraq war veteran and used that status to generate financial support” even though Haab’s records indicated that he did not serve in Iraq, but it’s hard to know who bears the most culpability for this misrepresentation. In initial press conferences, at least, Haab had remained vague, perhaps to avoid mentioning that he’d been on “med-hold”, telling reporters that due to operational security, he couldn’t comment on where he’d served.
“Were you in Iraq?” one reporter pressed.
“I returned, I returned in November,” he said, stuttering. “But I cannot give any locations or anything.”
The findings did nothing to convince the county attorney to revisit his decision, but they did raise questions for Doug Loefgren, who at the time was representing Haab in a civil suit against the county alleging false imprisonment and malicious prosecution — after Anglen’s article, the claims “intentional infliction of emotional distress” and “abuse of process” were added. Specifically, Loefgren found Anglen’s records request suspicious as it had asked, exclusively, for records relating to Haab’s military service. “I’m just kind of curious as to how Robert Anglen would know to ask the sheriff’s office to disclose Army records,” Loefrgen asked MCSO’s media commander Paul Chagolla. “I mean, he sent you a real detailed request on July 8th. I’m assuming someone told him to do it.” Chagolla didn’t answer the question, and Haab lost the case.
THOMAS did not prosecute the men Haab detained at the rest area (technically, he couldn’t — the smuggling law he would need to use as the basis of his prosecution did not go into effect until August of 2005), but real prosecutions would follow, for years, until 2013, when a federal court in Arizona enjoined both the county attorney and county sheriff from further implementing what had come to be called the “Maricopa Migrant Conspiracy Policy.” By this time, Thomas was no longer in office or even permitted to practice law in the state of Arizona (he was disbarred in 2012 for ethical misconduct), but the policies he put into effect had already ensured that thousands of migrants were deported with felony convictions that permanently preclude a legal return to the United States.
For his part, Thomas remains remarkably consistent in his positions; his campaign platform for the Republican nomination for governor in 2014 was virtually the same as the one he ran on for county attorney in 2004.
Arpaio has been less consistent. Paul Charlton, the U.S. attorney for the District of Arizona while Haab was arrested, remembers this case as the turning point: yes, the sheriff had “his quirks” from the beginning, Charlton said, but the results of Haab’s case marked the last time he perceived the MCSO as capable of handling “reasonable law enforcement tasks.” The lesson for Arpaio, Charlton said, was, “as long as I invest resources in going after illegal aliens, I will never lose an election.” So far, he hasn’t. Shortly after Thomas dismissed the charges against Haab, Arpaio essentially transformed his office into a law enforcement agency in which immigration enforcement was a top priority, arresting so many migrants at times that there were actual bed shortages in his jails. He’s currently dealing with the repercussions of violating a federal judge’s orders to stop detaining people solely on the suspicion they are in the country illegally, though it’s unclear how much this impact this will have on his political trajectory — historically, federal reprimands have only bolstered Arpaio’s popularity. And he’s already announced that he plans to run for sheriff again, in 2016.
Interestingly, a recent pivotal case that might mark the end of the sheriff’s nearly decade-long immigration-enforcement crusade, which produced video evidence that he had violated a judge’s orders to stop conducting immigration-themed traffic stops, was handled by a detective who had once before starred, reluctantly, in an MCSO high-profile case gone wrong: Don Hess. It would be one of the last cases Hess would work as a detective. After the media ruckus it catalyzed, he went back to patrol, this time around Lake Pleasant.
The Haab case was the last immigration case Liz Gilbert was ever assigned at the county attorney’s office. She now works for a private firm, and says she still remembers this case “vividly.”
It’s unknown what became of the seven men from Mexico — it’s not even clear when exactly they were deported, if they were still in Arizona as the incident became one of national interest and concern. Did they know what they were seeing? Did Haab? Could anyone at the rest area that night have known they were taking part in Arizona’s own inciting incident in the immigration wars — migrants versus local officials, local officials versus the federal government — that would last for nearly ten years and is still not totally resolved?
Haab stayed out of the struggles. After his fleeting role as the Archduke Ferdinand in this Arizona story, he never had any formal role in the immigration debate again. According to his Facebook page, he spent a total of six years in the military before he “got fed up” and “got out” and then spent some time as a sponsored adventure racer. He now lives in Kentucky, where he was recently charged with carrying a concealed weapon and unlawful possession of a weapon on school property, and is currently on probation for criminal mischief.