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Liberty wins in SB 1070 injunction

When Jan Brewer signed SB 1070 I had serious problems with its likely effect on the liberty of legal residents and citizens.

“Key part of SB 1070 not likely to be law for long,” April 23


“Tearing up the Constitution no way to combat illegal immigration,” April 28


And that’s just what U.S. District Court Judge Susan Bolton said in her ruling today. Her beef is with the second sentence of section 2B, which states: “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

Bolton: Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.

The state had argued that the second sentence modified the first sentence of that section, which states:

SB1070: For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

But because the Legislature modified the first sentence and not the second, she says the two have to be read independently of one another.

Bolton: In S.B. 1070 as originally enacted, the first two sentences ofSection 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.

But she didn’t enjoin enforcement of this portion of the law because of 14th Amendment concerns, at least, not primarily. She accepted the Department of Justice’s contention that by enforcing the law this way it will unduly burden the federal government and interfere with the federal government’s responsibility to equitably enforce immigration law. In other words, she accepted the “preemption” arguments that Arizona was stepping on federal authority, which the Constitution prohibits.

Bolton: In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation’s need to ‘speak with one voice’ in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” (Pl.’s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens.
With respect to the United States’ arguments regarding the burden on and impediment of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions mirror those stated above regarding the second sentence of Section 2(B). Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States.12 In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leadsto an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on its challenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.

So what are the remedies? This is an injunction, not a ruling on the law, though she did have to take into consideration whether the challengers to SB 1070 had a reasonable chance of success in striking down the law in order for her to consider enjoining the state from enforcing some of its provisions.

It’s likely the state will appeal. But a faster remedy may be for the governor to call a special session and amend the law to satisfy Bolton’s liberty objections. But that might be pointless, because the amendment would need to say that Arizona law enforcement will only verify the immigration status of people who are booked into jail. But most counties already do that (and I think it’s state law, too, but I have to check on that).

[Bolton relied heavily on the Supreme Court ruling in Hines v. Davidowitz. Read the Hines ruling here.]

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