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SB 1070 Slugfest: Will Judge Susan Bolton Block 1070's "Papers Please" Section?

Snell & Wilmer honcho John Bouma, outside the federal courthouse in Phoenix
Snell & Wilmer honcho John Bouma, outside the federal courthouse in Phoenix

See also: SB 1070 Oral Arguments on "Papers Please" Section Scheduled for August 21
See also: ACLU Seeks New Injunction on "Papers Please" Portion of SB 1070
See also: SB 1070, SCOTUS, Friendly House, and a Ray of Hope
See also: Russell Pearce's Falsehoods, Inaccuracies and Inventions on Channel 12's Sunday Square-Off
See also: Russell Pearce Scores Another Win Against Hispanics, Most Local Activists Are No-Shows, Only Daniel Patterson Shines

That John Bouma has such a way with words.

During oral arguments Tuesday in federal court over the "papers please" portion of Arizona's Senate Bill 1070, Bouma, chairman of the powerhouse law firm Snell & Wilmer, offered sometimes racially-charged arguments as to why section 2(b) should not be enjoined by Judge Susan R. Bolton.

Bouma conceded that Latinos and Mexican nationals -- whether here legally or not -- will be disproportionately affected by the implementation of 2(b), which requires cops to check immigration status during all lawful stops, if there's reasonable suspicion that the individual is undocumented.

But, he awkwardly seemed to be contending, like, so what?

"Who else is coming across the border like Hispanics?" asked Bouma rhetorically, his voice rising in apparent frustration.

He cited precedents having to do with the disproportionate impact of certain laws on Muslims, and on African-Americans.

"[T]here's a much higher proportion of blacks than anybody else [doing crack cocaine]," observed Bouma, in a spurt of weirdness.

(Note: See update below.)

Naturally, such inflammatory talk set reporters' pens in the court scribbling. Only thing Bouma could have done for an encore is bust out into a Don Rickles-esque floor show, featuring a crass parade of Irish, Jewish, and Polish jokes.

Yeah, I know Bouma was referencing federal court cases having to do with drug laws, but to say this was inartfully done is an understatement. Especially when Bouma is supposed to be defending his client -- the State of Arizona -- from the plaintiffs' claim in Valle del Sol v. Whiting that 1070 was motivated, in part, by ethnic and racial animus.

(I know, no duh, eh? But play along. What's painfully obvious still has to be demonstrated in court.)

That's part of the plaintiffs' challenge to 2(b) on Fourth and 14th amendment grounds, challenges not made before the U.S. Supreme Court in June, when the majority upheld three of Bolton's injunctions on the grounds that federal immigration law preempts state efforts to regulate immigration.

However, the Supremes disagreed with Bolton's injunction on 2(b).

At issue is whether Bolton will lift the injunction on 2(b) or let it stand for reasons other than preemption. The judge issued her initial injunctions two years ago, on July 28, 2010, one day before 1070 was scheduled to go into effect. Since then, two other provisions dealing with day-laborers have been enjoined.

The plaintiffs are also seeking enjoinment of an SB 1070 provision making the "unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens" a state crime. (A.R.S. 13-2929).

Two rulings Monday by the 11th Circuit Court of Appeals regarding 1070 copycat laws in Alabama and Georgia offered a mixed bag for the parties in Valle del Sol.

While language similar to the harboring provision in 1070 remained enjoined, injunctions on "papers please" provisions were lifted. The 11th Circuit cited the U.S. Supreme Court's ruling that section 2(b) of 1070 was not preempted by federal law.

Preemption was the constitutional issue at hand for the 11th Circuit, as was the case in Bolton's first set of injunctions in 2010. The constitutional issues for Bolton this time around are different in regards to 2(b).

Karen Tumlin, fighting for the plaintiffs in Valle del Sol v. Whiting
Karen Tumlin, fighting for the plaintiffs in Valle del Sol v. Whiting

Still, Bolton asked Karen Tumlin of the National Immigration Law Center if the plaintiffs' argument was "weakened" by the 11th Circuit's decision on Monday. Tumlin said no, that the 11th Circuit did not have before it "the record that there is here."

Tumlin argued that there was "substantial evidence" that 2(b) violated the equal protection clause of the 14th Amendment. She described 1070 as being "infected" by "discriminatory intent" as evidenced from the statements and lies told by legislators regarding 1070's passage, as well as the now-infamous Pearce e-mails.

The judge wondered if the plaintiffs were trying to argue that the majorities of the state House and Senate had discriminatory intent in passing 1070. If not, how many people would it take to demonstrate 1070's discriminatory intent?

Tumlin replied that the plaintiffs merely had to show race was a "motivating factor" in the passage of the law.

"If the plaintiffs can prove that [race] played a motivating factor," Tumlin declared, "then [1070] must be enjoined."

During 1070's passage, she noted, legislators used false and misleading information and racially coded language, while conflating undocumented immigrants with all Mexican nationals and Hispanics.

Indeed, Tumlin's argument went to the nexus of what was behind 1070 from jump, the bigotry and racism that elected leaders from Governor Jan Brewer on down exploited for political gain.

As for the Fourth Amendment violations, the plaintiffs offered a sworn declaration from Phoenix 19 year-old Hugo Carrillo Escobedo citizen of Mexico, Arizona resident, and full time high-school student in the Valley.

On July 21, he was pulled over by Phoenix police officers for "squealing tires," and his vehicle was impounded because he was driving without a license.

Escobedo was allowed to leave, but later a Phoenix cop contacted him by phone, then went to his house, telling him he would have to be turned in to U.S. Immigration and Customs Enforcement because, supposedly, 1070 had gone into effect, and the cop feared losing his job for not following the new law.

But section 2(b) of 1070 has not gone into effect. The original injunction stands. Nevertheless, the young man was transported to ICE, which cut him loose after holding him for eight hours. Subsequently, the criminal charge he received for not having I.D. was dropped.

Tumlin's point was that this and other proffered examples demonstrated the deleterious effect 1070 would inevitably have.

She also noted statements by various law enforcement officials, including Cochise County Sheriff Larry Dever, who was present as one of the defendants, that 1070's 2(b) would be enforced so as to violate the Fourth Amendment rights of those being held.

 

Tumlin asked Bolton to enjoin 2(b) and ask the Arizona Supreme Court to determine the parameters of 2(b), basically to interpret this poorly written section.

During her argument and rebuttal, Tumlin kept reiterating that "race cannot be a factor whatsoever" in the crafting and passage of legislation.

And since race and ethnicity were factors with the creation of 1070, the plaintiffs have met the standards set by legal precedent and Bolton must enjoin.

During his slice of the hour-long hearing, Bouma seemed to go off the deep end at times, occasionally mumbling incoherently, and accusing the plaintiffs of casting aspersions on the entire state of Arizona.

"[They're saying we're] a bunch of bozos just looking for the opportunity to go out and racially profile," Bouma sputtered.

Nope, that's not what the plaintiffs are saying, but it is a statement that, on the whole, I would agree with when it comes to Sand Land. This is a racist state with a racist past. And we're on the tail end of a wave of anti-Mexican hysteria. Without that hysteria, 1070 would not exist, and Bouma's firm would not have raked in millions defending it.

Bolton wondered about a slew of racist e-mails and comments from legislators debating 1070, including many from state Senate President Russell Pearce, who was noticeably absent from the hearing. Concerning the e-mails, she observed that they definitely displayed "animus."

Bouma agreed, saying that there were "some awful e-mails...in there."

Sorry, Russ. Even Bouma thinks you're a filthy bigot.

At no time did Bouma cop the attitude taken in Snell & Wilmer's legal reply to the plaintiffs' motion to enjoin, that Russell Pearce's racist lies concerning the undocumented could be rationalized.

Good move on Bouma's part, as those massive, putrid canards are indefensible.

Bolton gave no indication of when she would rule. But a decision is expected soon, as Bolton still must lift her original injunction, passed down from the Supreme Court, to the Ninth Circuit Court of Appeals , and finally to her court, where it sits. Or more precisely, where she sits on it.

That is, unless she finds in favor of the plaintiffs..

Generally, the oral argument seemed to go very well for the plaintiffs, and badly for Bouma, who was seriously off his game. Truly, I was beginning to wonder about the old dude needing a paramedic.

But Bolton was very interested in the effect of the 11th Circuit's recent ruling on what she must decide.

If the plaintiffs gave Bolton enough room to swerve in a different direction than the 11th Circuit on 2(b), she may do so. Keep in mind that Bolton's ruling was mostly upheld by the Supremes, and they granted 2(b) a new lease on life on very narrow grounds.

In other words, Bolton's track record on 1070 is impeccable.

Like an adventurer in the rain forest, Bolton has machete-ed out of the bush a legal path that the Supreme Court has deemed correct, and that other states now follow.

The plaintiffs request that she send 2(b) to the Arizona Supreme Court could grant her the freedom to maintain the injunction, for now.

After all, Arizona's gone without 2(b) for two years, so the harm to the state would be nonexistent, while the harm to civil rights in this state would be immediately felt by 30 percent of the population were 2(b) to be implemented.

And what will be worse, in the grander scheme of things, and in the rear view mirror of history?

UPDATE August 24, 2012: After receiving the transcript of the hearing, I've decided to alter  the initial quote, "There's a much higher proportion of blacks doing crack cocaine,"to the more accurate, "[T]here's a much higher proportion of blacks than anybody else [doing crack cocaine]."


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