SB 1070's fate up in air after court hearing
Arizona's immigration law challenged in federal court
PHOENIX – U.S. District Judge Susan Bolton adjourned court Thursday without giving any hint as to how she will rule on two separate motions seeking to prevent SB 1070 from becoming effective July 29.
Bolton heard arguments from lawyers in two suits, as they sought preliminary injunctions to keep the anti-illegal immigration law, also known as the "Support Our Law Enforcement and Safe Neighborhoods Act," from taking effect next week.
Twice during the day spectators filled the grand, circular courtroom on the second floor of the Sandra Day O'Connor U.S. Courthouse, 401 W. Washington St., in Phoenix.
They huddled shoulder to shoulder, suit to suit as they filled about seven rows of seats in the courtroom as well as the entire observation rotunda above.
Not a cell phone nor pager could be heard all day as lawyers, journalists, political officials and court personnel hung on every word exchanged between Bolton, the plaintiffs and the defendants.
The beating of drums and chanting of anti-SB1070 slogans by protesters outside, and the frequent honking from passing cars could not be heard once the courtroom doors were closed.
Natural light from the opaque glass atrium that rose five stories above the courtroom helped to keep attention focused on Bolton and her sharp questioning of the attorneys.
The federal government sued the state two weeks ago, alleging Arizona "crossed a constitutional line" when it enacted SB 1070.
The Justice Department maintains that Arizona law "disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety," and "conflicts with and undermines" national immigration policies, the suit says.
The feds requested a preliminary injunction to stay enforcement of the law. Saying "the power to regulate immigration is exclusively vested in the federal government," Justice asked the U.S. District Court to delay SB 1070 until after the lawsuit is decided.
An earlier lawsuit, filed by the Mexican American Legal Defense and Education Fund, the American Civil Liberties Union and other groups, alleges the law threatens civil liberties.
Defendants in both cases petitioned Bolton to dismiss claims that the law would directly threaten citizen safety and civil rights.
The law requires police to determine the immigration status of suspects they believe are in the country illegally. It also requires law enforcement to determine the status of everyone who is arrested, regardless of whether there is "reasonable suspicion" about their immigration status.
Case against the counties
Plaintiffs in the morning hearing sought injunctions to prevent each of Arizona's 15 county sheriffs and 15 county attorneys - all of whom were named personally in the suit - from using the new powers provided by 1070 to detain and investigate immigration status.
Nina Perales, an attorney with MALDEF, sued the counties, along with the ACLU and National Immigration Law Center, on behalf of over 20 humanitarian and nonprofit groups.
"SB 1070 effectively criminalizes being here without permission. By failing to carry registration documents your subject to prosecution or jail time," she told the court.
Perales argued SB 1070 not only oversteps state jurisdiction in immigration enforcement but raises imminent threats to the safety of citizens and their civil rights.
Currently, the U.S. government prioritizes the deportation of undocumented citizens suspected of being dangerous or repeat felons, reserving discretion to deem non-dangerous, undocumented persons to be "in transition." The feds can also sanction fines instead of deportation, afford asylum, or offer immunity in exchange with cooperation in other national interests.
The state of Arizona can not deport citizens under SB 1070.
"Many law enforcement agencies are ramping up traffic stops and relying on them for immigration reform," Perales told Bolton when asked to provide evidence the new provisions will result in unreasonable roadside stops. "Somebody can do something to commit a crime inadvertently"
Perales said after the hearing that the final version of the bill was broadened from its original wording to allow officers more situations in which to assess immigration status.
"It's all fair game now if it goes into effect," she said.
Racial profiling - basing traffic stops, detentions or arrests on a subject's ethnicity - is generally illegal under federal law.
SB 1070 also prohibits using race, color or national origin as a basis for "reasonable suspicion," "except to the extent permitted by the United States or Arizona Constitution." The law does not provide any insight into acceptable measures of citizenship, but training documents and video provided by the Arizona Peace Officers Training Board do list factors that can be considered in forming reasonable suspicion.
Thomas Liddy, representing Maricopa County Sheriff Joe Arpaio (who was not present at the hearing), argued that the claims against the state and county were inappropriate in federal district court.
"The proper forum is for the Department of State and the U.S. Congress," he said.
Bolton later asked ACLU attorney Omar C. Jadwat, "Who am I to tell the state of Arizona that they can't enforce existing powers granted by the federal government?"
Jadwat said SB 1070 poses a threat to civil rights and imminent harm because the language could extend to passengers in vehicles, witnesses to accidents, victims of crime, those seeking asylum, or anyone who came into contact with an officer investigating any claim of any incident.
The training materials provided by AZPOST tells police to not inquire into the status of victims, witnesses and those riding in vehicles, but that distinction is not made in the law itself.
Making a federal case
Thursday afternoon's hearing was part of a suit brought by the U.S. Department of Justice, which names Gov. Jan Brewer as the defendant.
Justice asked the judge to keep SB 1070 from taking effect, rejecting the state's claim that it merely wants to help enforce current immigration laws.
U.S. Deputy Solicitor Edwin S. Keedler made the case against Brewer, who was present for the hearing.
"This is a nation of immigrants. There's a (national) policy of welcoming immigrants, visitors, trade, there are humanitarian concerns for people who come here without permission initially," Keedler told Bolton. "Enforcement itself provides a broad range of possibility of prosecution."
According to Keedler, Congress has never criminalized the mere presence of an undocumented person in the United States and left the ultimate discretion to enforce immigration law to the federal government as a way to balance competing interests.
"The nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests," read the Justice motion for an injunction.
Keedler did not raise any civil rights issues but maintained that Congress specifically allowed for a federal regulation of immigration to make sure that no state can cause disruptions in foreign relations.
He argued instead that Arizona violated the supremacy clause of the Constitution, which specifically reserves immigration enforcement for the federal government.
Keedler said the criminal statutes Arizona cited in SB 1070 to establish its authority were intended to prosecute smugglers, not non-violent persons residing in the state without documentation.
Brewer has been unable to substantiate her public claims that most illegal aliens crossing Arizona's borders are drug smugglers or other criminals.
Keedler argued that federal authorities will not have the resources to respond to Arizona's request to investigate the immigration status of a suspected undocumented person.
"Can you really say that this is pre-emptive because you're going to receive too many calls?" Bolton asked.
She pressed Keedler to provide reasons beyond the supremacy clause and previous rulings as to why she should halt the law.
"The problem comes from the state mandating how officers will assist in carrying out federal law," Keedler responded.
Bouma argued in both hearings that the federal government's failure to curb illegal immigration in Arizona warrants the state's participation in the process.
"Congress isn't doing it, but Congress hasn't told us we can't do it," Bouma told Bolton. "Congress said they want one, national, uniform system and we have one. They haven't done anything to stop the states."
Decisions in both cases are expected by attorneys by the July 29 effective date.
"She's not going to strike down 1070," said John J. Bouma outside the Sandra Day O'Connor Federal Courthouse in downtown Phoenix as the court spectators emptied into the square after the afternoon hearing.
Bouma, of Phoenix-based law firm Snell and Wilmer, represented Brewer at both hearings.
"(Bolton) certainly understands the dangers Arizonans face as to the harboring of illegals in the state of Arizona," Brewer said after the afternoon hearing. "I'm very confident that Arizona will prevail."
Keedler declined to comment after the hearing.
Perales said she felt "encouraged" after the first hearing that Bolton is "doing a really careful job of going over the statute section by section, provision by provision and that's the best we can hope for."
"We would like to see the legislature abandon any plans to create an independent immigration scheme," she said.
Perales avoided answering questions on whether an injunction would be granted. "It's very hard to predict what the judge is going to do," she said. "We expect a decision probably before July 29. We think the judge is sensitive to the arguments of the parties and the need of the state and police for clarification."
As Bolton and attorneys split hairs over congressional intent and even the definition of the word arrest, outside about 150 demonstrators excercised their rights in a less hushed manner.
Some carried signs that denounced SB 1070 as racist, hateful, and illegal. Some wore t-shirts warning of political retribution: "We will remember in November."
Others drifted through the crowd cautiously passing out pro-SB 1070 literature.
"All SB 1070 does is allow (the state) to enforce the current laws," said Kelly Townsend, president of the Greater Phoenix Tea Party, before the morning hearing.
Townsend co-founded the chapter with Les White, who compared the powers extended to police in SB 1070 to those of other countries around the world.
"There is nothing unique about this," White said. "We have no problem with people coming here legally but the state of Arizona just can't afford to be that generous anymore," he said.
White said he believes local law enforcement should be allowed to assess the immigration status of any person with whom they come into contact in the normal course of their duties.
"It's a geographic issue that most of the people suspected of being an illegal alien will be from Mexico," White said in reference to widespread claims that the bill effectively mandates racial profiling.
17-year-old Pablo Sanchez Jr. sat outside the courthouse with his mother, who held a sign reading in bold letters, "Stop the deportations."
Sanchez's family came from the Mexican state of Guerrero 13 years ago to look for work.
Though Sanchez said he is not afraid of the changes that could take place in Arizona law, he did think that other hard-working families will be afraid to visit or look for work in Arizona.
"They will be afraid of being denied jobs, and of racism."
Across Washington Street, ASU business student Bryan Berkland held up a sign supporting SB 1070.
"Using the supremacy clause is a joke," he said of the Justice Department's legal tactics. "You could be purple, blue, Irish or Mexican. If you're breaking the law, you're breaking the law."
TucsonSentinel.com reporter Ash Friederich contributed to this story