SB 1070's "Papers Please" Section Can Go Into Effect, Judge Rules
The ACLU lost on section 2(b) today, but the war over SB 1070 is far from over
See also: The Supreme Court's 1070 Ruling Is No Win for Teabaggers See also: SB 1070 Slugfest: Will Judge Susan Bolton Block 1070's "Papers Please" Section? 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
In a major disappointment to civil rights advocates, U.S. District Court Judge Susan R. Bolton today ruled that Senate Bill 1070's notorious "papers please" section cannot be further enjoined, allowing the provision to go into effect once she officially releases an earlier injunction against it.
The judge disagreed with a coalition of groups led by the ACLU, which had argued that section 2(b) of SB 1070 should be enjoined on the grounds it violates the Fourth and 14th amendments of the U.S. Constitution.
Instead, in Valle del Sol v. Whiting, Bolton concluded that 2(b) could not be challenged on these grounds until it goes into effect and creates the adverse conditions civil rights organizations fear it will.
Bolton cited the U.S. Supreme Court's ruling earlier this year, denying an injunction on the section, which requires cops to check the immigration status of those stopped, if there's reasonable suspicion to believe the person is in the country illegally.
In June, the Supremes decided that if the section is narrowly interpreted, it possibly could be applied in a constitutional manner.
So the high court reversed Bolton's 2010 injunction on the section, wherein she ruled that federal immigration law preempts that part of 1070.
"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," Bolton declared in today's order.
"As the Supreme Court stated," she added, "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.'"
(Read Bolton's ruling, here.)
This decision opens the door for law enforcement agencies to begin enforcing section 2(b), as soon as Bolton officially lifts the injunction on what's often referred to as the "heart of 1070."
Section 2(b) is almost guaranteed to lead to racial and ethnic profiling of Hispanics by law enforcement, the prolonged detention of anyone with brown skin, and increased distrust between Latinos and police agencies.
Reacting to Bolton's order, executive director of the ACLU of Arizona Alessandra Soler issued the following, strident message.
"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," Soler stated shortly after the court's ruling was filed.
"Latino members of our community should not be subjected to unlawful stops based on their race or perceived immigration status," she said.
"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."
However, Bolton did hand the ACLU one victory.
Citing a recent ruling by the 11th Circuit Court of Appeals, which found that anti-harboring provisions of 1070-copycat laws in Georgia and Alabama were preempted by federal statutes, Bolton enjoined 1070's harboring section, codified as Arizona Revised Statute 13-2929.
"Federal immigration law creates a comprehensive system to regulate the transportation, concealment, movement, or harboring of unlawfully present people in the United States," Bolton noted in regards to A.R.S. 13-2929.
"In crafting federal regulation of these activities,"she added, "Congress permitted state law enforcement officials to arrest for violations of federal law, but did not allow for state regulation in the field."
Challenges to section 2(b) are certain to continue, and law enforcement will be under increased scrutiny by Latino and civil rights organizations to ensure compliance with the U.S. Constitution.
Yet, those same agencies can be sued by Arizona citizens who believe that local cops are shirking their duty under 1070 to investigate the residency status of people suspected of being present without documents.
In June, the Supreme Court agreed with Bolton's 2010 injunctions against three other provisions of 1070.
(Note: In April, Bolton also enjoined sections of 1070 seeking to regulate day-laborers.)
The ACLU's motion seeking a new injunction against 2(b) was seen as a long shot by many legal observers. Still, I'm heartened that the organization and its civil rights partners made the effort.
Though they didn't succeed, that coalition correctly sought to prevent the harm that will inevitably result from 2(b)'s implementation. I commend them for trying.
A massive amount of evidence was introduced in hopes of demonstrating the discriminatory intent of the law, including a near-library of racist e-mails and comments by recalled, ex-state Senate President Russell Pearce and other 1070 supporters.
In the end, Bolton was unmoved. But the release of that material reminded many of what 1070 was and is about: i.e., "attrition through enforcement," Sand Land's version of ethnic cleansing.
Ironically, I suspect this ruling will light a fire beneath 1070's opponents, particularly those 2(b) intends to harm, Arizona's Hispanic minority.
Already Russell Pearce, Governor Jan Brewer and Arizona's pro-1070 crowd have been demonized by 1070, and rightly so.
The longer 1070 survives, the longer this state will be perceived as a racist, redneck outlier, beyond the accepted norms of civilization.
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