Arizona immigration law: Key parts struck down by judge
by Alia Beard Rau, Ginger Rough and JJ Hensley - Jul. 28, 2010 11:40 AM
The Arizona Republic
U.S. District Court Judge Susan Bolton has issued a preliminary injunction preventing several sections of Arizona's new immigration law from becoming law, at least until the courts have a chance to hear the full case.
Key parts of Senate Bill 1070 that will not go into effect Thursday:
• The portion of the law 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.
• The portion that creates a crime of failure to apply for or carry "alien-registration papers."
• The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)
• The portion 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.
The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.
Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.
Gov. Jan Brewer, in a phone interview from Tucson, said she was still being briefed on the order, but said, "I look at it as a little bump in the road." Brewer has not yet spoken with her attorneys in detail, but said she "would assume" that their next step would be appealing the injunction to the 9th Circuit Court of Appeal. The governor also said that she would continue asking the federal government to secure the border.
"The fact of the matter is this is just an injunction," Brewer said. "We need to go through the court process so the merits of the bill can be debated. I am sure as we go through the process, we'll get a fair hearing."
Brewer had tasked the Arizona Police Officer Standards and Training board with creating a training video for law enforcement around the state to help them comply with the law.
Lyle Mann, the agency's director, said Bolton's decision raises more questions about what portions of the law, if any, police departments will be enforcing on Thursday.
"We will review in detail the injunction as issued to see what, if any, response we need to provide to agencies," Mann said.
Bolton's ruling followed hearings on three of seven federal lawsuits challenging SB 1070. Plaintiffs include the U.S. Department of Justice, the American Civil Liberties Union, Phoenix and Tucson police officers, municipalities, illegal immigrants and non-profit groups.
She denied legal requests by Brewer, Maricopa County Sheriff Joe Arpaio and several other defendants seeking to have the lawsuits dismissed because, they argued, the plaintiffs did not prove that they would be harmed by the law if it went into effect.
Next, hearings will be scheduled to begin hearing the full case in the seven lawsuits. All or some of the suits could be consolidated. A full court hearing is likely to involve appeals, possibly as far as the U.S. Supreme Court, and could take several years.
Arpaio said he was not surprised by Bolton's ruling, but it will have little impact on his planned "crime-suppression" operation scheduled for Thursday.
"That's not going to affect our human-smuggling or employer-sanction investigations, that wasn't addressed in that law," he said.
Arpaio said the only thing Bolton's ruling changed is the ability for Arizona law enforcement to use a state charge - willful failure to carry documents - to book someone into jail. Now, Arpaio said, the agencies can continue to contact Immigration and Customs Enforcement officials to determine if federal agents will take custody of the suspect.
Everyone booked into Maricopa County Jail will continue to have their immigration status screened by federally trained sheriff's deputies through an agreement with ICE.
Brewer said Bolton's order was not entirely a surprise, given some of the questions that the judge asked during last week's court proceedings.
The governor deferred answering specific questions about the impact of the ruling to her attorneys. For example, Bolton let the part of SB 1070 that requires agencies to enforce federal immigration law to the fullest extent of the law to stand, but enjoined the part about allowing officers to question an individual's legal status.
When asked how it would be possible to do one without the other, Brewer said her office would need to "confer with our lawyers to see how that would be enforced."
"Those are legal questions that do have to be addressed," said Brewer, who plans to be back in Phoenix by 3 p.m., and hopes to meet with her attorneys at some point this afternoon.
Hannah August, a Justice Department spokeswoman, said the administration believes Bolton's decision to block key parts of SB 1070was correct.
"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," August said.
Shortly after the ruling, Attorney General Terry Goddard, who is the presumptive Democratic nominee for governor and Brewer's anticipated general election opponent, accused her of using SB 1070 for political gain, tweeting "Brewer played politics with immigration - and she lost." Meanwhile, Rep. John Kavanagh, one of the co-sponsors of the bill, called Bolton's ruling "very disappointing," saying that she "went to the meat of the law."
"The decision is very disappointing," Kavanagh said. "Those were major parts of the law that helped us battle illegal immigration. I assume that we will immediately appeal to the 9th Circuit (Court of Appeals)."Kavanagh said that the state remained committed to defending the law and seeing it enacted. "This is only the start of the legal battle." Stephen Montoya, the attorney representing Phoenix police Officer David Salgado in the lawsuit he filed challenging SB 1070, said he was gratified by Bolton's ruling. "We think she struck the heart out of 1070," Montoya said. "We're gratified but we're not surprised."
He said he expects the state to immediately file an appeal with the United States Court of Appeals with the Ninth Circuit, and said they will fight that.
Montoya said he hopes that Bolton's ruling will bring a halt to the inflammatory rhetoric on all sides.
"I think the people who lost shouldn't feel like they completely lost because they do have an avenue of redress and that is the United States Congress," he said. "This debate is for the federal Congress, not for the state Legislature."
David Gonzales, U.S. Marshal in Arizona, whose agency is charged with security at the federal courthouse in downtown Phoenix, said the building was closed to the public except for those who have business there.
Gonzales said there was some concern about protesters in the wake of Bolton's ruling. "When you have situations like this, emotions are running high on both ends," Gonzales said. "So the potential for violence is high."
A spokeswoman for Puente, one of the groups that have been organizing against the law, said the group doesn't view the partial injunction as a victory and believes the entire law should have been stopped.
"There is still a lot to be dealt with," said Opal Tometi, a spokeswoman for the group. "This decision doesn't get at the root of the issue or get at the concerns of the people affected." Tometi said the group is planning on going ahead with Thursday's scheduled protest.