With the cries of demonstrators on both sides of the SB 1070 debate reverberating inside the steamy glass cage of Phoenix's Sandra Day O'Connor U.S. Courthouse, a special prceedings room filled to overflow with lawyers, reporters and average citizens became the scene of the first major hearing in a challenge to Arizona's new breathing-while-brown law.
The matter at hand was a lawsuit brought by Phoenix police officer David Salgado and the organization Chicanos Por La Causa. Both want federal district Judge Susan R. Bolton to enjoin the law before it goes into effect July 29. Salgado's suit is one of seven challenging SB 1070, including one filed last week by the U.S. Department of Justice.
Salgado says he doesn't want to enforce a law that's unconstitutional, and if he refuses to enforce 1070, he could be fired from his job. CPLC believes that if 1070 goes into effect, the result could be that some of the children it serves will be detained or arrested by law enforcement officers. This would include officers CPLC works with to make sure those same kids are safe.
(According to the complaint, CPLC "operates three high schools and twelve 'Head Start' centers in Arizona, which over the years have helped to educate thousands of children of Mexican descent.")
The two-hour hearing hearing was broken up into two parts, the first addressing the government's motion to dismiss, and the second, dealing with the plaintiffs' motion for a preliminary injunction to halt the law.
Governor Jan Brewer's lead counsel John Bouma of the mega-law firm Snell & Wilmer argued that neither Salgado nor CPLC have legal standing to bring the suit.
In regards to Salgado, Bouma stated that neither his fear of being fired or disciplined, nor the possibility that he might be sued in some way, gives him standing under federal law. As to CPLC, Bouma said SB 1070 was not directed at schools, or organizations like CPLC
Montoya energetically responded that "if an individual is faced with a genuine threat [as a result of a statute]...that individual has standing." Salgado's threat of being fired was real, insisted Montoya.
On CPLC's standing, Montoya referred to statements made by Phoenix Public Safety Manager Jack Harris to the effect that police officers operating in the schools would be in a bind when investigating incidents if the juvenile victim or the perpetrator was suspected of being undocumented.
Bolton peppered Montoya with questions that seemed skeptical of Salgado's claim that he did not want to enforce SB 1070 because he believed it to be unconstitutional.
But Montoya replied that, "The state cannot require...its employees to violate federal law." That is, SB 1070 would force Salgado to violate individuals' constitutional rights.
Montoya insisted that if officers like Salgado enforce SB 1070, "they're going to be sued by civil rights lawyers like me."
In his rebuttal, Bouma repeated his contention that the threat of being sued is not enough to have standing.
"Anybody can be sued anytime," he said.
He also pointed out that it's more likely that policy making entities would be sued under the law, and law enforcement officers are indemnified from costs if they act in good faith.
The rest of the hearing dealt at length with the conflicts between SB 1070 and federal law, and the fact that the federal government has the ultimate authority when it comes to immigration matters.
Montoya pointed to several federal statutes where the federal government had allowed the states to, say, arrest a felon who'd been removed from the country and come back. He also cited the federal grant of immigration authority under the 287(g) program. Such allowances would not have to be made if a state could simply write its own immigration laws.
Bolton suggested that Arizona may simply want to "assist" the federal government, not usurp its authority. Montoya countered that "the federal government doesn't want this assistance," and cited the fact that the U.S. Government was suing Arizona over this very matter. Plus, if Arizona wanted to assist the federal government, it could always seek a 287(g) agreement with the feds.
Also, said Montoya, SB 1070 is far broader than the federal law. Police could end up checking immigration status if they're investigating someone for a violation of a city ordinance, like spitting on the sidewalk or letting weeds grow too high in your front yard.
Regarding the possibility that police officers might have to investigate juveniles' immigration status, Montoya stated,
"If one child is arrested under this law, that is irreparable harm."
Bouma addressed the argument of federal preemption, arguing that SB 1070 simply mirrors federal law.
"This basically says it's a violation of state law to violate federal law," he told the court.
Bolton questioned Bouma intently on a portion of SB 1070 that requires that a person arrested for any reason must have their immigration status verified before they are released. Bolton pointed out this could cover "many, many people" who would normally be cited and let go.
What if Immigration and Customs Enforcement is slow to respond? How long could someone be held? And doesn't this violate their constitutional rights?
Bouma's response seemed vague, though he admitted there was an issue of how long someone could be held.
"You've got to assume," he told Bolton, "that public officials are going to do their jobs in an appropriate manner."
Montoya got the last word, and summed up his argument while countering the government masterfully.
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He used as an example his grandmother, who was "born on a ranch, far away from civilization," and who did not have a birth certificate, but was still an American citizen. Would she have to wait in jail because she didn't have the I.D. required of her?
Montoya pushed Bolton to put the law on pause until there's a time for a trial on its merits.
"The state of Arizona will not perish if you put this law on hold," he stated.
Bolton took the matter under advisement. Next Thursday, July 22, there are two more hearings before Bolton: in the morning, one involving the lawsuit brought by the ACLU and other entities; and in the afternoon, the one involving the federal government's suit.