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By Travis Packer

U.S. District Court Judge Susan Bolton denied motions by Arizona Governor Jan Brewer, Maricopa County Sheriff Joe Arpaio, and Pinal County Sheriff Paul Babeu last week to dismiss a lawsuit filed by plaintiffs against Arizona law SB 1070. Counsel for the plaintiffs, which includes the American Civil Liberties Union (ACLU), the Mexican-American Legal Defense Fund, and the National Immigration Law Center, alleges that SB 1070 unlawfully attempts to regulate immigration and would result in widespread racial profiling. The lawsuit is one of seven originally filed against SB 1070.

While Judge Bolton ruled that the plaintiffs’ request for an injunction against SB1070 was moot (because of the one previously granted to the Department of Justice), she also found that the plaintiffs had standing to sue because the "alleged harm to the organizational plaintiffs will occur if SB 1070 goes into effect, regardless of how it is enforced or applied." In addition, Judge Bolton stated that "race, alienage, or national origin discrimination was a motivating factor in the enactment of S.B. 1070." Judge Bolton also found that "While Governor Brewer correctly points out that, for the most part, the organizational plaintiffs' allegations involve threats of future harm, the threat of future harm is sufficiently imminent."

Specifically, the complaint filed by the ACLU and other civil rights organizations alleges that SB 1070 will result in racial profiling; will subject people of color to unlawful interrogations, searches, seizures, and arrests; and will deprive people of freedom of speech and expressive activity. Bolton ruled that the law:

[C]ontains no meaningful procedural safeguards against erroneous deprivations of liberty, and immigration status is not something that is easily ascertainable. A person who is lawfully present in the U.S. may look and act the same way as a person who does not have permission to be in the country, and plaintiffs' allegations of 'subjective and arbitrary' detention decisions by law enforcement agents are plausible.

Judge Bolton did, however, rule in favor of some of Gov. Brewer’s arguments, dismissing a First Amendment claim based on the argument that barring illegal immigrants from soliciting work violated the right to free speech. She also dismissed a claim brought by two New Mexico residents who argued their right to travel was impeded because their driver’s licenses might not be sufficient proof of status under SB 1070.

So what’s next? Seven suits have been filed against Arizona law SB 1070, two have been dismissed, and two have yet to reach argument in front of Judge Bolton. The appeal of a preliminary injunction against SB 1070 given in the Department of Justice lawsuit will be heard November 1st before the Ninth Circuit Court of Appeals. The American Immigration Council’s Legal Action Center provides a more detailed analysis of the cases against SB1070.

Originally posted to ImmigrationPolicyCenter on Fri Oct 15, 2010 at 07:27 AM PDT.

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Comment Preferences

  •  I'm glad the judge (4+ / 0-)
    Recommended by:
    wader, Tinfoil Hat, sfbob, ParkRanger

    Is really looking at the law itself.  I agree with the decision of illegals soliciting for work is not a free speech matter.  But the two that said their drivers license might not be enough if they go through AZ is quite true and has already happened within AZ.  People were detained, documents given, and the law decided it wasn't enough they wanted birth certificates.

    Overall good job on seeing this and letting everyone know. Liberals, fighting the conservative way since 1776...

    by Final Frame on Fri Oct 15, 2010 at 07:44:22 AM PDT

    •  Birth certificate obsession (2+ / 0-)
      Recommended by:
      sfbob, ParkRanger

      implies that a naturalized citizen or a citizen born abroad is "less than." The people who ask for birth certificates act as though every American citizen was born in this country when in fact some were (Pres. Obama) and others weren't (Sen. McCain).

  •  Another slap upside the head to Kris Kobach, (0+ / 0-)

    the fascist wunderkind of right-wing immigration law.  

    If Kobach is successful in his run for Secretary of State of Kansas, he will launch a voter fraud witch-hunt hitherto unknown in the annals of zealotry:

    Cue the train wreck:

    [Kobach] wants to turn the Kansas secretary of state’s office into a one-stop shopping depot for receiving, investigating and prosecuting allegations of illegal voting.

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Fri Oct 15, 2010 at 08:11:48 AM PDT

  •  Help me to understand (0+ / 0-)

    Dear Travis:

    Thank you for your update on this issue.  I have been following this case for the past several months, and I'm still confused by a few components.  I was hoping you could clarify a few questions.

    I read the AZ Law (and the amended version), as well as Judge Bolton's opinion, and I completely understand why SB1070's "show me papers" clause is unconstitutional.  What I don't get is why SB1070 1) preempts Federal Law, and 2) qualifies as an undue burden on the Federal Government.

    First, from what I could tell, USDOJ claimed a 'field preemption' over immigration per article 2 and case law (eg Hines).  However, SB1070 neither supplements nor supplants Federal authority.  

    Further, Congress has already included other parties within the field of immigration enforcement and verification.  Under IIRILA the US AG has already entered into 287G agreements with 7 different states, including Arizona.  Under IRCA public and private employers are not only empowered but mandated to verify citizenship/resident/immigration status.

    So, if Congress has already invested The Maricopa County Sherrif's Department with the power to enforce Federal Immigration Law, and demanded that all employers verify status, then how can the USDOJ argue in good conscience that SB1070 preempts Federal Authority?

    Second, DOJ claimed that SB1070 would overburden US State Department resources for verifying immigration status, citing a figure of 36,821 detained/arrested people in Tuscon.  According to The US Dept. of Transportation, more that 300 million individuals cross US borders each year.  If The State Department, USCIS, CBP and ICE electronically coordinate over 1 million international travelers each and every day, then how does an increase of 1/10th of 1 percent constitute an undue burden?

    •  Re: Help me to understand (0+ / 0-)

      I'll try to answer a couple of your questions:

      First, SB 1070 differs fundamentally from the 287(g) agreements as well as IRCA. Both are pieces of legislation passed by Congress, meaning they aren't preempting the federal government as they are passed by the federal government. Further, 287(g) requires that the federal government sign off on the agreement. SB 1070 on the other hand was passed by a state legislature, and asked for no permission from the federal government. It also goes much further than 287(g) in creating new state crimes related to immigration status.

      Second, the 36,821 figure is the number of people in Tucson cited and released in FY 2009. This is by no means the number of people, in all of Arizona, who would have to have their immigration status checked when cited or arrested. The argument, as I understand it, is not that they couldn't necessarily check all statuses with enough funding, but that requiring this would divert them from more important priorities involving public safety. In addition, I believe Judge Bolton's issue with this was also that additional detention time for every arrestee while their status is being checked.

      Hope that helps.

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