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Judge: Az OK to enforce SB 1070 'papers' provision
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Judge: Az OK to enforce SB 1070 'papers' provision

'Haboring' provision preempted by federal laws, Bolton rules

A federal judge Wednesday cleared the way for Arizona to enforce what critics have dubbed the "papers please" provision of the SB 1070 anti-illegal immigration law.

Rejecting arguments on potential discrimination, the court did enjoin the "harboring" provision of the law.

U.S. District Judge Susan Bolton lifted a two-year-old stay against enforcing the law, which requires police to determine the immigration status of those they arrest, or those whom they suspect are in the country without proper documentation.

The ruling does not mean SB 1070 will stand unchallenged; civil rights groups have vowed to collect data on how police enforce the law and sue to halt it if there is any discrimination.

The move follows a June U.S. Supreme Court decision that returned the case to Bolton, saying that the civil rights impact of the provision couldn't be known until it was enforced. Chief Justice John Roberts virtually invited a challenge to the law's enforcement when the high court struck down most of law's provisions.

Civil rights groups asked Bolton to toss out the law last month, claiming that it will lead to racial profiling, unreasonable detentions and other abuses.

Bolton rejected those claims in a 12-page ruling issued Wednesday.

"This Court will not ignore the clear direction in the Arizona opinion that Subsection 2(B) cannot be challenged further on its face before the law takes effect. As the Supreme Court stated, Plaintiffs and the United States may be able to challenge the provision on other preemption and constitutional grounds 'as interpreted and applied after it goes into effect," Bolton wrote.

The judge did agree to block enforcement of a provision against harboring or transporting illegal aliens, writing:

Federal immigration law creates a comprehensive system to regulate the transportation, concealment, movement, or harboring of unlawfully present people in the United States. In crafting federal regulation of these activities, Congress permitted state law enforcement officials to arrest for violations of federal law, but did not allow for state regulation in the field.

***

It is immaterial to this analysis that S.B. 1070 might have the same goal as federal immigration law or incorporate some of the same substantive standards: “States may not enter, in any respect, an area the Federal Government has reserved for itself.”

Bolton asked the state and the U.S. Justice Department to propose a timetable for beginning to enforce the law.

Gov. Jan Brewer welcomed the ruling in a press release, saying "Arizona is one big step closer to implementing the core provision of SB 1070."

"After more than two years of legal challenges, it is time that Section 2(B) of SB 1070 take effect. ... It is clear the day of implementation is fast approaching," said Brewer.

In June, the Supreme Court tossed out much of SB 1070, striking down provisions that made it a state crime for immigrants to fail to carry "alien-registration papers;" one that allowed for warrantless arrest of anyone suspected of committing an offense that made them removable from the country; and one that made it a state crime for an undocumented person to seek work.

But the high court declined to toss out what proponents called the 2010 law's main provision: one requiring police to determine the immigration status of those they arrest before they are released, and to do so in the case of those they stop whom they suspect may be undocumented.

Justices did virtually invite a challenge to the law on civil rights grounds after enforcement began.

"There is a basic uncertainty about what the law means and how it will be enforced," wrote Chief Justice Roberts in ruling on a case against the law brought by the U.S. Justice Department.

The ruling "does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

Advocacy groups asked Bolton in July to block the law, saying it will lead to people being detained longer than is constitutionally permissible while they have their status checked by police.

The law's challengers, which include the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund, also raised claims that SB 1070 will violate equal protection, citing statements by former state Sen. Russell Pearce and others. The ACLU and MALDEF said that the law was passed with an intent to discriminate.

"The ACLU of Arizona will act on the court's message and document racial profiling abuses throughout the state as the first step to guaranteeing equal treatment under the law," said Alessandra Soler, executive director of the American Civil Liberties Union of Arizona

"Latino members of our community should not be subjected to unlawful stops based on their race or perceived immigration status," she said in a statement. "Once this 'show me your papers' provision goes into effect, racial profiling will become rampant statewide, as it has been in Maricopa County, and we intend to ramp up our reporting and litigation efforts to seek justice on behalf of the victims of police abuse."

The enforcement of the highly charged law may become an issue in the fall election cycle. Latino voters are a core constituency of President Obama's.

Brewer said the ruling "will empower state and local law enforcement, as part of a legal stop or detention, to inquire about an individual’s immigration status when the officer has reasonable suspicion. With this provision, Arizona makes a clear statement that it will not tolerate sanctuary city policies, and will now have thousands of additional officers to collaborate with the federal government as state and local law enforcement do what they always have: enforce the law."

The Tucson Police Department is reviewing the decision, said a spokeswoman.

"The date in which the ruling takes effect is not yet known. The Tucson Police Department will obtain further guidance regarding the ruling prior to taking any specific enforcement action," said Sgt. Maria Hawke.

"We want to be clear that the Tucson Police Department will abide by Judge Bolton's ruling in its entirety," she said in a news release.

According to Hawke:

Tucson Police Department personnel have received several trainings related to SB1070. In June of 2010, all departmental personnel completed initial trainings. Additionally, personnel completed refresher training in June of 2012. All Tucson Police Department personnel will receive further clarification and direction following a comprehensive review of the ruling.

Deputies with the Pima County Sheriff's Department also received training on enforcement of the law in 2010.

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