Thursday, July 29, 2010

Progress in fighting Arizona's anti-Latino law

Bmaz in Judge Bolton Enjoins Arizona Immigration Law Emptywheel 07/28/2010 gives a good summary of the federal court's decision staying implementation of the most egregiously invalid provisions of Arizona's anti-Latino SB 1070 law.

The text of the decision is available, Bolton SB 1070 Decision 07/28/2010.

The Justice Department's complaint, in what seems to be a typical Obama administration half-way approach, focuses on the preemption issue, arguing that SB 1070 encroaches on federal functions. The Justice Department did not raise the vital civil rights implications of the law, though those may have been even stronger arguments. (The ACLU is litigating separately on civil rights grounds.) Nevertheless, this is an important victory for the moment for the Obama administration and the Constitution.

But Judge Bolton's decision nevertheless applied the preemption issue to provisions that are also grossly in violation of civil rights. It's worth noting, however, that the Justice Department did not challenge two provisions having to do with providing assistance and encouragement to undocumented workers that have rightly been described as outlawing the Good Samaritan. And Bolton's order therefore did not enjoin their implementation.


This was not a decision of the issues themselves. It was rather a stay of implementation based on the likelihood of the federal complaint prevailing on the merits. In the language of the decision, "Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law." (my emphasis in bold)

The provisions stayed included those requiring the police to determine the immigration status "of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States" and to detain the person until immigration status is determined; the "papers please" provision requiring legally resident aliens to carry registration papers; the provision making it illegal for an undocumented immigrant "to solicit, apply
for, or perform work"; and the one "authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States." (my emphasis)

For those who don't mind wading through some or all of the decision's 36 pages, it's quite an interest summary of precedents on the federal responsibility for immigration control. Bolton's analysis of the individual provisions begins on page 13.

I found it striking on p. 14ff, Bolton points out that Arizona's argument to her court on the proper interpretation of the provision requiring police officers to check immigration status of people "stopped, detained or arrested" contradicts the plain language of the law itself.

She writes of the further provision requiring that the immigration status of a person arrested be checked and that the person be detained until it is determined - even if the arrest itself was groundless:

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. [my emphasis in bold]
This is one to recall the next time you hear an anti-immigrant, pro-1070 Republican or Tea Partier talking about how much they love the Constitution and are alert for violations of freedom.

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