ACLU Vows to Appeal SB 1070 Ruling That Allows Cops to Investigate Suspects' Immigration Status

Immigration advocates vow to appeal the "papers, please" provision of Arizona's controversial Senate Bill 1070 immigration law, which was upheld last month in a trial court ruling.

SB 1070 was born as the state's anti-immigrant sentiment flared in 2010. With state Senator Russell Pearce — who later was recalled from office — and Maricopa County Sheriff Joe Arpaio leading the charge, the Arizona Legislature passed a law that would become a rallying point for arch-conservatives around the country.

"SB 1070 inevitably leads to unconstitutional racial profiling and unreasonable seizures by police." — Alessandra Soler, ACLU of Arizona.

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Part of the law was struck down by the U.S. Supreme Court in 2012, including a provision that would have required non-citizens to carry paperwork at all times that could prove they were in the country legally. But the High Court left in tact the part that requires police to ask about a crime suspect's immigration status while the person is being detained, sending it back to the lower court for another try.

On September 4, U.S. District Court Judge Susan Bolton ruled (see below) that Arizona could enforce the provision.

The plaintiffs in the case, including the Mexican American Legal Defense and Educational Fund (MALDEF) and the American Civil Liberties Union, followed up this week with an announcement of plans to appeal the ruling to the Ninth U.S. Circuit Court of Appeals.

Removing other provisions from SB 1070 made Arizona "a safer place for people of color than it was when this law passed five years ago," said Jorge Castillo, staff attorney for MALDEF. The new appeal "will help to finish the job against a law that was a mistake from its inception."

The plaintiffs had argued in the case, Valle Del Sol v. Whiting, that SB 1070 was designed to target Hispanics, given various statements by Arizona authorities before former Governor Jan Brewer's signing of the bill. Even if the part of the law that requires police to ask about immigration status is essentially neutral and could be applied to suspects of all races — as the U.S. Supreme Court decided — Arizona police will enforce the law unequally, the plaintiffs insisted.

Bolton had enjoined the "papers, please" provision in 2010. But the Supreme Court's 2012 opinion unblocked her move, with the majority suggesting that the section could be constitutional depending on how it was enforced.

No evidence was presented by MALDEF that police would enforce the law in an unconstitutional manner, and therefore that part stands, Bolton stated in her September opinion.

"Plaintiffs are attempting to challenge a law that is not preempted on its face and could be interpreted to avoid the constitutional concerns" mentioned in the Supreme Court's ruling, she wrote. "Plaintiffs have admittedly not produced any evidence that state law enforcement officials will enforce SB 1070 differently for Latinos than a similarly situated person of another race or ethnicity."

Besides requiring cops to complete an on-the-spot probe into a suspect's immigration status based on scant evidence, the judge also upheld a provision that allows police to transfer suspected illegal immigrants to federal custody. Keeping those aspects of the law in place is "harmful" to the community, the ACLU said.

"SB 1070 was modeled on Maricopa County Sheriff Joe Arpaio’s divisive, race-motivated policies,” said Alessandra Soler, executive director of the ACLU of Arizona. "Sheriff Arpaio’s practice of profiling Latinos was ruled unconstitutional years ago, and Arizona’s show-me-your-papers law is no different. SB 1070 inevitably leads to unconstitutional racial profiling and unreasonable seizures by police. Despite [Governor Doug] Ducey’s overtures to re-brand the state as an inclusive place, his continued defense of SB 1070 serves as a constant reminder that Arizona sanctions race-based policing."

Bolton's decision also struck down another section in the law that attempted to ban day laborers seeking work from blocking road traffic.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.
Contact: Ray Stern