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Updated: Judge blocks SB 1070 enforcement

Injunction: Arizona illegal immigration measure conflicts with federal laws

Key parts of SB 1070 will not take effect Thursday as scheduled, after a federal judge blocked enforcement.

U.S. District Court Judge Susan Bolton issued a preliminary injunction Wednesday morning preventing sections of the anti-illegal immigration law from taking effect.

Parts of the law that are blocked:

  • The section that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion they're in the country illegally, and the section requiring that anyone arrested have their immigration status verified.
  • The section that creates a state crime of failure to apply for or carry "alien-registration papers."
  • The section that makes it a crime for illegal immigrants to solicit, apply for or perform work (but not the section on day laborers).
  • The section that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

Saying the Justice Department is likely to show at trial that those sections are preempted by federal law, Bolton agreed that the federal government is likely to suffer irreparable harm if an injunction was not issued "because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law."

Bolton rejected arguments by the Justice Department that other parts of SB 1070 are preempted by federal laws. She left intact sections of the law that create a state crime of transporting or harboring an illegal alien, and changes in the law on impounding vehicles used to transport illegal immigrants.

The judge left other sections of SB 1070 intact because they were not challenged by the feds:

  • The section requiring Arizona officials to work with the federal government regarding illegal immigration.
  • The section allowing suits against agencies, officials and government bodies for adopting policies that restrict the enforcement of federal immigration statutes "to less than the full extent permitted by federal law."

"I look at this as a bump in the road," said Gov. Jan Brewer, who signed SB 1070 in April. Brewer expressed confidence that the law is constitutional and will be upheld at trial. Brewer said she would appeal the injunction.

"I will battle all the way to the Supreme Court, if necessary, for the right to protect the citizens of Arizona," Brewer said in a statement.

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"Jan Brewer played politics with immigration, and she lost," state Attorney General Terry Goddard said in a news release.

"Rather than providing the leadership Arizona needs to solve the immigration problem, Jan Brewer signed a bill she could not defend in court which has led to boycotts, jeopardized our tourism industry and polarized our state."

Goddard, like Brewer, is running for governor.

Southern Arizona Rep. Raúl Grijalva said he was abandoning his call for a boycott of Arizona following the ruling.

"This is an important moment for the nation to pause and take a deep breath,” Grijalva said. "As part of this pause, I am encouraging national groups to return their conventions and conferences to the state to help us change the political and economic climate."

"Gov. Brewer and the state legislature have proved indifferent to the consequences of this law for the state economy," Grijalva said in a statement.  "We need to concentrate on the economy, the lack of jobs and teachers, and the other crucial issues facing Arizona and the rest of the country," the congressman said.

"State lawyers arguing with federal lawyers will not help us secure our border, fix our broken immigration system or improve safety for the ranchers of Cochise County, the seniors of Green Valley or the families of Tucson," said Rep. Gabrielle Giffords in a statement.

"Judge Bolton’s ruling is an affirmation of the fact that the enforcement of our nation’s immigration laws is the responsibility of federal government. It is time – in fact, it is way past time – for the federal government to start taking that responsibility seriously," Giffords said.

U.S. Sens. John McCain and Jon Kyl released a statement saying the two are "deeply disappointed" with the decision. "Instead of wasting tax payer resources filing a lawsuit against Arizona and complaining that the law would be burdensome, the Obama Administration should have focused its efforts on working with Congress to provide the necessary resources to support the state," they said.

"While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive," said Hannah August, a Justice Department spokeswoman, reacting to the injunction in a statement. "States can and do play a role in cooperating with the federal government in its enforcement of the immigration laws, but they must do so within our constitutional framework."

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The injunction "correctly affirms the federal government’s responsibilities in enforcing our nation's immigration laws," said Homeland Security spokesman Matt Chandler.

Law enforcement reaction

The Pima County Sheriff's Department wasn't anticipating many changes to its policies if the law had taken effect, said spokesman Jason Ogan.

"Nothing much is going to change for us, it's business as usual," Ogan said. Echoing the stance that SB 1070 wouldn't change many of the department's policies, he said "we're going to continue doing what we've been doing."

The injunction will result in a "de facto amnesty through non-enforcement of laws against illegal immigration," said Pinal County Sheriff Paul Babeu, a supporter of SB 1070, in a news release.

"The federal government refuses to secure the border and leaves it to states like Arizona to bear the costs of its inaction. Yet, when we try to do the job they won't do, in a manner consistent with federal law, they stop us. You couldn't make up something this ridiculous," Babeu said.

Tucson Police Chief Roberto Villaseñor said he's relieved that portions of the law won't be taking effect. "This law would be a drain on resources at a time when we're already facing serious funding and staffing issues."

Not only would checking the status of everyone arrested be a "serious burden," Villaseñor said, "this law had the potential to unduly affect United States citizens."

"The federal government has failed in its obligation to secure the border," he said, "but that should not be done on the backs of local law enforcement."

Tucson police will receive an email Thursday explaining the parts of SB 1070 that will take effect, and the parts of the training on the new law that should be disregarded, Villaseñor said. He said he did not have an estimate of the cost of training all of TPD's commissioned officers on the law.

While he's relieved, "I don't think this is done," Villaseñor said. "There's a lot that remains to be seen" once the suits against the law are heard in court.

Legal reaction

Richard H. Martinez, the attorney for Tucson police officer Martin Escobar, who filed a suit to have SB 1070 overturned, was measured in his reaction to the injunction.

"It's great news," he said. "We're very relieved that the heart of is not going to take effect tomorrow."

But Martinez said the cases against SB 1070 have a long road ahead. "It's a preliminary injunction - it's not final," he said. "Some part that weren't blocked may still be held unconstitutional. But I'm sure there'll be a quick appeal (by Brewer)."

"The heart of the case is what (Bolton) enjoined," he said. "There are still big issues out there."

The ruling is a "major step," said Anthony D. Romero, executive director of the American Civil Liberties Union. "A single state’s frustration with federal policy cannot be allowed to hijack federal authority or dictate federal priorities in ways that impede effective law enforcement, threaten the rights of citizens and non-citizens alike and violate core American values."

"Today's ruling guts the unconstitutional immigration scheme that Arizona wanted to establish," said Nina Perales, of the Mexican American Legal Defense and Eductation Fund. "The judge's decision further shows that SB 1070 is an unconstitutional attempt by the state to take over the federal immigration system within Arizona's borders. States around the nation should take heed that any similar efforts will not succeed."

Injunction details

Bolton rejected arguments by Gov. Brewer's attorney, John Bouma of Phoenix-based Snell & Wilmer, that SB 1070 does not require all people who are arrested have their immigration status checked.

Examining the legislative record, she found that the sentence "Any person who is arrested shall have the person’s immigration status determined before the person is released" "states plainly" that it applies to all arrestees. Bolton also ruled that that even the possession of presumptive proof of legal status, such as an Arizona driver's license, does not mean that status checks would not be required:

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.

Bolton's ruling agreed that checking the status of all arrestees would "impermissibly burden federal resources" and result in an "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.

Looking at the issue of checking immigration status based upon reasonable suspicion prior to an arrest, Bolton reached similar conclusions:

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. 

***

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.

The injunction says that the section of SB 1070 creating a state crime  to violate federal alien registration laws "stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration."

The injunction also blocks enforcement of the section of SB 1070 that makes it a state crime for an illegal alien to work without authorization "Congress has comprehensively regulated in the field of employment of unauthorized aliens," Bolton wrote. "Arizona’s new crime for working without authorization... conflicts with a comprehensive federal scheme and is preempted. "

Bolton also blocked enforcing a new power to arrest - without a warrant - anyone who has "committed any public offense that makes the person removable from the United States." "Ultimately, immigration court judges and federal appeals
court judges determine whether an alien’s offense makes an alien removable," the judge wrote.

"There is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new (law)," Bolton ruled. "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."

Bolton did not issue orders in other cases where injunctions against SB 1070 were requested. Attorneys in two other suits asked for injunctions against the law. In all, there are seven lawsuits seeking to block the measure.

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1 comment on this story

1
28 comments
Jul 28, 2010, 10:14 am
-0 +1

Great ruling U.S. District Court Judge Susan Bolton
Now this state can stop this blame the others and get to work on funding schools and park departments for good of all the people of AZ

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