Thursday, July 29, 2010

More on the Arizona SB 1070 decision

I wanted to mention here a couple of other sections of Federal Judge Susan Bolton's decision preventing the immediate implementation of several of the most onerous provisions of Arizona's anti-Latino SB 1070 law. Even though the Justice Department's case is based on the Consitution's supremacy clause and argues against provisions of the law based on federal preemption of state laws, Bolton's decision does bring out in several places the police-state nature of several of the anti-Latino law's provisions. For example (p. 33):

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a "distinct, unusual and extraordinary" burden on legal resident aliens that only the federal government has the authority to impose. [my emphasis]
Pages 31-32:

Under the interpretation suggested by both parties that the revision to A.R.S. § 13-3883 is directed at the arrest of aliens who committed a crime in another state, the statute first requires an officer to determine whether an alien’s out-of-state crime would have been a crime if it had been committed in Arizona, a determination that requires knowledge of out-of-state statutes and their relationship with Arizona’s statutes. ... Under any interpretation of the revision to A.R.S. § 13-3883, it requires an officer to determine whether an alien's public offense makes the alien removable from the United States, a task of considerable complexity that falls under the exclusive authority of the federal government. [my emphasis]
This is one of several points at which Bolton's decision points out that SB 1070 would result in investigations and actions against people who may not have committed a crime in Arizona or even be under suspicion of having committed an act in another state which would be a crime in Arizona or (presumably) even covered by Arizona's extradition laws.

Pages 33-34:

In its Motion, the United States provided evidence that Arizona police officers have no familiarity with assessing whether a public offense would make an alien removable from the United States. ... In its Response, Arizona asserted that, under the new A.R.S. § 11-1051, Arizona officers can contact DHS [federal Department of Homeland Security] to determine the immigration status of aliens. ... But the revision to A.R.S. § 13-3883 does not state that an officer must contact DHS to assess removability; the revision simply extends the authority for an officer to make a warrantless arrest. [my emphasis]
In other words, only DHS can make an authoritative determination of legal residency in such cases, and a court must make the determination on deportation. But SB 1070 does not require Arizona officials to contact DHS for that determination. In other words, this is a loophole about a mile wide for police abuse. In footnote 9/page 19, Bolton also notes:

Also, upon a check with LESC or a federally-authorized state official, the status of a United States citizen might not be easily confirmable as many people born in the United States likely do not have an entry in a DHS database.
Page 34:

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a "distinct, unusual and extraordinary" burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66. The Court thus finds that the United States is likely to succeed on the merits in showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preempted by federal law. [my emphasis]
On p. 20, Bolton refers to the civil rights aspects of the "papers please" provisions:

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. ...

[In footnote 11:] The Court notes, but does not analyze here, the arguments raised by the plaintiffs in Friendly House, No. CV 10-1061-PHX-SRB, regarding racial profiling.
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