Feathered Bastard

ACLU, NAACP and Other Groups Seek Federal Injunction to Stop SB 1070

As it had announced it would do last week, the ACLU along with several other groups filed suit in federal court today, seeking to have Arizona's "papers please" legislation enjoined before it's scheduled to take effect by the end of July.

"SB 1070 is unconstitutional," asserts the complaint. "It violates the Supremacy Clause and core civil rights and civil liberties secured by the United States Constitution, including the First Amendment right to freedom of speech and expressive activity, the Fourth Amendment right to freedom from unreasonable searches and seizures, and the Equal Protection Clause guarantee of equal protection under the law."

The lawsuit notes that, "SB 1070 requires Arizona police, Arizona jails, and Arizona courts to detect, adjudge, punish, and facilitate the deportation of individuals who, in Arizona's view, are not entitled to remain in the United States. SB 1070 makes Arizona a legal island within the United States with separate immigration rules that do not apply in the other 49 states and that are contrary to and inconsistent with the federal Immigration and Nationality Act."

(You can read the ACLU's legal doc in its entirety, here.)

Indeed, the complaint's strongest argument may be that SB 1070 sets a simplistic Arizona law against a far more complex set of federal laws and regulations that have their own courts and standards.

See, the U.S. Constitution grants the federal government authority over all immigration matters. And states are not allowed to draft their own immigration statutes.

"Under federal law," reads the suit, which was authored by the ACLU of Arizona's Annie Lai, "there is no single, readily ascertained category or characteristic that establishes whether a particular person may or may not remain in the United States. The answer to that question is a legal conclusion that can only be reached through the processes set forth in the [federal Immigration and Nationality Act] and may depend on the discretionary determinations of federal officials."

In addition to organizational plaintiffs such as Phoenix's Friendly House, the Service Employees International Union, and the Arizona Hispanic Chamber of Commerce, which allege they will be adversely affected by the new law, there are several individual plaintiffs listed who are afraid SB 1070 will impact them as well.

One of these is Jim Shee, "an elderly resident of Litchfield Park, Arizona," who is "a U.S. citizen of Spanish and Chinese descent, is fluent in Spanish, and has lived in Arizona his entire life." The ACLU's suit states that over the last month Shee has been stopped twice already by local cops and asked to cough up his ID.

Another is Vicki Gaubeca, a Las Cruces, New Mexico resident and U.S. citizen born in Mexico, who drives to Tucson frequently to visit family members and for work.

"Ms. Gaubeca is a licensed New Mexico driver," states the complaint. "The State of New Mexico does not require `proof of legal presence,' as that term is used by SB 1070, when issuing driver's licenses. Thus, Ms. Gaubeca fears that if SB 1070 does go into effect, she could be pulled over by a police officer in Arizona and detained because her New Mexico driver's license will not be accepted to dispel suspicion that she is `unlawfully present' in the United States."

The most moving of the plaintiffs may be "C.M., a minor...a resident of Gilbert, Arizona and a freshman in high school." From Haiti originally, the 15 year-old has been granted temporary protected status in the U.S. due to Haiti's catastrophic earthquake.

"C.M. does not carry any documents proving that she has permission to be in the United States," the complaint asserts. "However, she recently asked her mother to obtain an Arizona non-driver's identification for her after she learned about SB 1070. She was afraid that she would be stopped and questioned about her immigration status due to her dark skin and the fact that she speaks a foreign language. She is nervous about speaking Haitian Creole with her friends and believes that it could get her in trouble with the police under SB 1070."

The fears of these individuals, and many others regarding SB 1070, are very real. The stated "intent" of the law is to make "attrition through enforcement" the policy of Arizona. Not only is this an encroachment on federal authority, it will, insists the complaint, "cause widespread racial profiling and will subject many persons of color--including countless U.S. citizens, and non-citizens who have federal permission to remain in the United States--to unlawful interrogations, searches, seizures and arrests."

The coalition of groups bringing the complaint along with the ACLU include the NAACP, the Mexican American Legal Defense and Educational Fund, the National Immigration Law Center, the National Day Laborer Organizing Network, and the Asian Pacific American Legal Center.

In a statement issued today, NAACP President and CEO Ben Jealous, said that the Arizona law is "out of step with American values of fairness and equality."

"It encourages racial profiling and is unconstitutional," stated Jealous. "African-Americans know all too well the insidious effects of racial profiling. The government should be preventing police from investigating and detaining people based on color and accent, not mandating it. Laws that encourage discrimination have no place in this country anywhere for anyone."

During a press conference via phone this morning, Lucas Guttentag of the ACLU's Immigrants' Rights Project said he was confident the law "will be enjoined" based on "multiple constitutional violations."

Should the ACLU complaint succeed, it could help to ratchet down the rhetoric here in Sand Land and lessen the calls for a boycott of Arizona as the matter is worked out by the courts. It would also help to protect those targeted from a trampling of their civil rights, as the authors of SB 1070 intended.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons