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New SB1070 provision struck down by court

In this Feb. 10, 2011 file photo, protesters gather around former state senator Russell Pearce, author of SB 1070. The ACLU acquired thousands of Pearce e-mails through a public records request and says they prove the controversial anti-immigration law was racially motivated. (Matt York/Associated Press)

In this Feb. 10, 2011 file photo, protesters gather around former state senator Russell Pearce, author of SB1070. (Matt York/Associated Press)

A federal judge has voided one of the last remaining sections of the controversial package of anti-immigration laws approved by Arizona lawmakers in 2010.

The provision struck down Friday by U.S. District Court Judge Susan Bolton makes it a state crime to “engage in the smuggling of human beings for profit or commercial purposes.” Bolton said prosecuting people for smuggling remains the exclusive right of the federal government.

There was no immediate response from Gov. Jan Brewer, who had hired outside counsel to defend the law she had signed.

Friday’s ruling pretty much resolves all the legal challenges by the Obama administration to the controversial SB1070, a wide-ranging measure aimed at giving the state more power to deal with the issue of illegal immigration.

Unless this decision is overturned on appeal, it leaves only a small portion of the law intact: Requiring police who stop people for another reason to question them their immigration status if there is reason to believe they are in this country illegally. The U.S. Supreme Court said there was nothing inherently illegal about the measure.

But the justices warned the law could still be struck down if it is illegally applied. And some civil rights groups are attempting to prove just that in a separate lawsuit.

The provision Bolton voided Friday actually was first enacted in 2005 but updated in 2010 as part of SB 1070. It makes it a crime to transport or house anyone who someone knows or has reason to know is not in this country legally.

Bolton said there are two legal problems with the law.

First, she said Congress has determined that only it gets to regulate the issue of smuggling.

Potentially more significant, even if the state has a role, she said its laws must be in harmony with the federal statutes. And Bolton said the Arizona law is in conflict.

“(It) imposes additional and different state penalties than federal law,” the judge wrote. “It divests federal authorities of the exclusive power to prosecute these specific smuggling crimes.”

Bolton also pointed out that the Arizona law criminalizes conduct which is not covered by parallel federal laws which have a “safe harbor” exception for religious activities.

The ability of police to use the smuggling law already had been restricted last year.

U.S. District Court Judge Robert Broomfield, in a separate legal challenge, voided efforts by Maricopa County to use the law to charge migrants with the crime of smuggling themselves into the country. The judge said that criminal action conflicts with federal laws which make it only a civil violation for a migrant to enter the country illegally.

Friday’s ruling, unless appealed, pretty much ends the federal government’s challenge to SB1070.

Earlier this year, the Department of Justice agreed to drop its bid to void what has become known as the “papers please” provision of the law. That’s the one that requires that a police officer to check the immigration status of those they have stopped if there is “reasonable suspicion” the person is in the country illegally.

In exchange, Arizona gave up its efforts to enforce another provision of SB1070 which closely paralleled the language Bolton just struck. It made it a state crime to knowingly transport or harbor someone in this country illegally and made it illegal to “encourage or induce” someone to come to or reside in Arizona if they have no legal right to be in the country.

While Friday’s ruling ends the role of the Obama administration in contesting the law, other legal challenges filed by a coalition of immigrant and civil rights groups remain.

Most notable is that “papers please” provision.

Outside organizations hope to prove the measure is discriminatory, contending the purpose behind SB1070 was not to deal with the effects of illegal immigration but instead was motivated by racial bias.

To prove that, though, challengers need actual evidence, something they hope to find in emails of current and former lawmakers. They have subpoenaed any documents with words like “alien,” “illegals,” “Mexican,” “wetback” or “undocumented,” contending any comments lawmakers were making around the time SB1070 was adopted are relevant to proving their case.

Bolton, who is handling that case, too, has rejected efforts by several lawmakers and those who have written to them to quash those subpoenas.

There is another outstanding legal question: How long people, stopped for other reasons, can be detained beyond that solely to check out their immigration status.

“The issue here is basically whether the law means to Arizona and Arizona officials what the Supreme Court said would be problematic constitutionally,” said Linton Joaquin, an attorney for the National Immigration Law Center. He said that can be ascertained by determining the written or unwritten policies of various police agencies.

For example, Joaquin said a police department might read SB1070 to require officers to hold someone stopped for a traffic violation far beyond the time necessary to write the ticket solely to run a check on immigration status. “That’s unconstitutional,” he said.

SB 1070: Where it stands
While some provisions of SB 1070 have been struck down, others were allowed to take effect. Here’s a closer look:

  • In effect: Requiring police who have stopped, detained or arrested someone for any reason to make a reasonable attempt to determine someone’s immigration status if there is “reasonable suspicion” the person is in this country illegally. The U.S. Supreme Court said the provision, on its face, is not unconstitutional or preempted by federal law, but left open the possibility of challenge if there are claims the measure is being enforced in a discriminatory manner.
  • Enjoined: Forbidding the release of any person who is arrested until that person’s immigration status is determined. Courts said it would put an undue restriction on the liberty of someone here legally while their status is checked.
  • Enjoined: Mandating those in this country in violation of federal law complete or carry an “alien registration document” or be subject to state arrest. Enjoined as an attempt by the state to regulate alien registration.
  • Enjoined:Making it illegal for anyone not legally present in this country to knowingly apply for work, seek work in a public place or work as an employee or independent contractor in Arizona. Enjoined as preempted by federal law.
  • Enjoined: Allowing police to make warrantless arrests if there is a belief the person has committed any offense that allows them to be removed from the United States: Enjoined as preempted by federal law.
  • Enjoined: Making it a crime to for someone looking for work to enter a car stopped on the street or for drivers to stop to pick up laborers. Enjoined as unconstitutional targeting of day laborers, infringing on their First Amendment rights.
  • No enforcement: Making it illegal to knowingly transport or harbor someone not in this country legally or to “encourage or induce” someone to come to Arizona who has no legal right to be here. State agreed not to enforce.
  • In effect: Prohibiting Arizona officials, agencies and political subdivisions from limiting enforcement of federal immigration laws.
  • In effect: Requiring state officials to work with federal officials with regard to illegal immigrants.
  • In effect: Allowing legal residents to sue any state or local official, agency or political subdivision which restricts enforcement of federal immigration laws “to less than the full extent” permitted by federal law.
  • In effect: Alterations to the existing crime of human smuggling.
  • In effect: Changes to the state’s law allowing a judge to suspend or revoke the licenses of companies that knowingly or intentionally hire undocumented workers.
  • In effect: Creating a special fund to finance gang and immigration intelligence enforcement.
  • In effect: Allowing the removal or impoundment of vehicles used in transporting or harboring illegal immigrants.

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