As I anticipated in April, when it became clear that the U.S. Supreme Court intended to lift a lower court's injunction against section 2(b) of Senate Bill 1070, the so-called "papers please" portion of Arizona's immigration law, the American Civil Liberties Union and its legal allies today filed a motion seeking a preliminary injunction in Valle del Sol v. Whiting (formerly Friendly House v. Whiting) on that same invidious section.
If Judge Susan R. Bolton, the federal judge in Valle del Sol, grants their request in time, the most notorious part of 1070 will remain on hold, either until the case goes to trial or a higher court reverses the action.
As an added precaution, the plaintiffs have also asked Bolton for a temporary restraining order on the implementation of 1070, in case Bolton cannot rule on the plaintiffs' motion before the first injunction formally is lifted.
On June 25, the U.S. Supreme Court reversed both Bolton and the Ninth Circuit Court of Appeals on section 2(b), while invalidating three other sections of 1070 as preempted by federal immigration law.
Bolton was the judge in United States v. Arizona, the action brought in federal court by the U.S. Government. She enjoined several sections of 1070 on July 28, 2010, one day before 1070 was scheduled to take effect.
The only issue being addressed in the feds' lawsuit was preemption, with the Supremes ruling that section 2(b) of 1070 was not trumped by federal law and could be considered constitutional, as long as it was enforced narrowly and did not result in prolonged detention of individuals under police scrutiny.
But organizations such as the ACLU, the Mexican American Legal Defense and Education Fund, and the National Immigration Law Center have long argued that 2(b) is unconstitutional on the grounds of preemption as well as other grounds, such as the U.S. Constitution's Fourth Amendment prohibition on unreasonable search and seizure and the 14th Amendment's equal protection clause, which bars racial and ethnic profiling.
The motion filed late this afternoon argues that there was "discriminatory intent" in the drafting of the law, and that statements by local law enforcement officials indicate that some individuals' detentions will be prolonged during otherwise lawful stops. This, so police can check the immigration status of detainees with U.S. Immigration and Customs Enforcement.
Ironically, the statements of 1070-supporters such as Cochise County Sheriff Larry Dever and Maricopa County Sheriff Joe Arpaio are used as evidence that 2(b) will be applied in an unconstitutional manner.
Dever is quoted from an appearance on Sean Hannity's Fox News show, where the sheriff indicated that his office "will extend detentions for immigration purposes even as to people that `ICE or Border Patrol won't come get'."
The sheriff further promised that "his agency will `take them to [federal authorities], dump them on their doorstep and say, you figure it out.'"
Similarly, Arpaio is quoted from a website article as stating the following:
"[I]t will be interesting when we arrest someone . . . What will I do with them? Dump them on the street? . . . Let them go? . . . I don't like to do that [because] that's amnesty . . . I'm going to see what other options I have."
In addition, the motion describes various lies and bogus statistics spouted by former state Senate President Russell Pearce in promoting 1070, as well as bigoted statements made by Pearce, and racist e-mails sent to and from his office.
One e-mail sent out by Pearce reads:
"I'm a racist because . . . I don't want to be taxed to pay for a prison population comprised of mainly Hispanics, Latinos, Mexicans or whatever else you wish to call them . . . I object to having to pay higher sales tax and property tax to build more schools for the illegitimate children of illegal aliens. . . [I] want to deny citizenship to all anchor babies born in this country pre 2006 and here after . . . I object to corporation and municipalities spending billions to translate everything in Spanish."
The court filing also cites the use of "camouflaged racial expressions" by state legislators when discussing 1070.
State Representative John Kavanagh compared day laborers to "hookers," in one example.
In another, then state Senator and now State Superintendent of Education John Huppenthal is cited for hyperbolic, incendiary language.
"[W]e have seen parts of our neighborhoods nuclear bombed by the effects of illegal immigration," Huppenthal said on the floor of the Senate in 2010.
I could go on, but I think you get the point. The document itself reads like an indictment of the state of Arizona for fostering the climate of hate that gave birth to 1070.
Lawyers for the plaintiffs in Valle del Sol first asked for parts of 1070 to be enjoined based on grounds other than preemption two years ago.
But because Bolton already had enjoined these sections for preemption, she ruled the matter moot. Still, she acknowledged that there were valid Fourth Amendment claims against 1070, and signaled that such a challenge could prevail.
"There appear to be substantial questions as to whether Subsection 2(B) would withstand a challenge under the Fourth Amendment," Bolton wrote in an October 8, 2010 order.
She added that some of the facts in the case suggested that "the plaintiffs could demonstrate a likelihood of success on the merits of this claim."
The Supremes themselves seemed to invite another challenge of section 2(b) in the majority opinion written by Justice Anthony Kennedy.
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"This opinion," Kennedy noted in the 1070 ruling, "does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
As things stand, 2(b) has not yet gone into effect. But today's motion assumes that the injunction formally could be lifted as early as Friday.
Talk about deja vu all over again. Once more, the fate of one the most racist pieces of legislation created in the 21st Century rests on the shoulders of Judge Bolton, as was the case in 2010.
I'd say her spot in history is assured, however she rules this time around.