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Supreme Court won't lift injunction blocking SB 1070 provision

The U.S. Supreme Court refused to lift an injunction that blocks Arizona from enforcing a provision of SB 1070 that would make it a crime to harbor or transport those not in the country legally. Most of the sections of the 2010 law have been struck down or enjoined by the courts.

Monday, the nation's highest court declined to hear a state appeal of a preliminary injunction, which was issued by U.S. District Court Judge Susan Bolton in 2012. The judge determined that there were enough questions about the validity of the law to bar enforcing it while the issues are litigated.

Bolton, who is also handling the on-going challenge to the "papers please" section of the law, agreed with opponents of the law that the "harboring" provisions of SB 1070 are preempted by federal laws.

Her 2012 injunction was upheld by the Ninth Circuit Court of Appeals in October. A three-judge panel called the law "unintelligible" and "nonsensical." The high court's determination not to review that decision means that the bar against harboring illegal immigrants will not be enforced while the legal challenge to it proceeds in Bolton's court.

The Supreme Court's refusal to grant certiori in the case was issued without comment, as are most such decisions.

"This is another major legal defeat for SB 1070, and leaves in place a federal circuit court decision that found the law's harboring provision unconstitutional in multiple ways," said Omar Jadwat, an attorney for the American Civil Liberties Union, one of the groups that challenged the law. "SB 1070 is a stain on Arizona's reputation and today's decision confirms that other states have been wise to reject similar laws."

Gov. Jan Brewer called the high court’s refusal to hear the case “yet another blow to a state’s responsibility and authority to enforce public safety and defend the well-being of its citizens.”

“Arizona’s ability to combat criminal elements of illegal immigration in our own state is further eroded,” Brewer said in a statement emailed by her spokeswoman, Ann Dockendorff.

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“In a sense, it’s a very simple case in that SB 1070 is a deeply flawed, unconstitutional law,” said Jadwat, who is representing Valle Del Sol Inc. and others who challenged the law.

Jadwat said the fight to dismantle the law is likely to be a prolonged, messy effort.

“It’s a big mess in the sense that Arizona has essentially failed at every stage to defend this law,” he said.

Jadwat said the case has “a lot of moving parts,” including the federal government’s challenge of SB 1070 that came before the Supreme Court in 2012, as well as further district court challenges taking place in Arizona.

The provision blocked by the injunction would make it a misdemeanor to transport, conceal or harbor someone in this country illegally or to encourage someone to come here illegally. It rises to a felony if 10 or more immigrants are involved. The law applies to a person who is already "in violation of a criminal offense" — a term the appeal court judges ruled is unconstitutionally vague.

In the 9th U.S. Circuit Court of Appeals ruling from October, the harboring and transporting provisions of SB 1070 – which became law as section 13-2929 of state law – was blocked for two reasons: vagueness and its conflict with federal law.

Part of the ruling had the three-judge panel that issued the ruling breaking out its Oxford dictionary.

The judges took issue with the law’s phrase that it applied to a person “in violation of a criminal offense,” which it called “nonsensical” with “no discernable meaning.” Using a traditional definition of offense as “a violation of the law,” the court said, a violation of an offense would be a violation of a violation.

Beyond the law’s vagueness, the court said it conflicted with federal law that already outlaws and punishes the transportation and harboring of illegal immigrants. Discrepancy between Arizona’s law and existing federal law would void the state’s law due to federal supremacy.

Garrett Roe, director of the Immigration Reform Law Institute, said there is a lack of legal guidance for pre-emption when state law “mirrors the federal law.”

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“Obviously, we would have like to see the Supreme Court take up the case,” said Roe, whose organization had filed a brief in support of the state’s appeal.

A spokeswoman for Attorney General Tom Horne could not immediately provide comment on the ruling Monday.

But Jadwat said he expects to see more challenges from Arizona as courts strike down SB 1070 provisions.

“The problem is Arizona refuses to accept the (court) decisions and the writing on the wall,” he said.

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1 comment on this story

Apr 22, 2014, 11:52 am
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How dare we infringe on the fed’s authority to selectively enforce, or outright ignore, their own laws?

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Stephanie Snyder/Cronkite News Service

Gov. Jan Brewer, shown here after the Supreme Court’s 2012 hearing before it upheld part and struck down part of SB 1070, called the court’s latest decision 'yet another blow' to the state’s ability to defend its residents.

1070 'harboring' provision

The section of SB 1070 at issue in the case:

It is unlawful for a person who is in violation of a criminal offense to:

1. Transport or move or attempt to transport or move an alien in [Arizona], in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

2. Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

3. Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.