Despite Legal Settlement, SB 1070's Zombie Heart Is Still Beating

Like a cancerous tumor that defies radiation therapy, section 2b of Senate Bill 1070 — Arizona's infamous immigration law — remains on the books, despite a settlement announced Thursday in a 6-year-old lawsuit brought against the State of Arizona by the American Civil Liberties Union and other civil-rights groups.

As part of the agreement in Valle del Sol, et al. v. Whiting, the plaintiffs will cease their challenge to section 2b, which requires law-enforcement officers, during any lawful stop, detention, or arrest, to make an attempt to determine an individual's immigration status if the officer develops reasonable suspicion to believe the person is in this country illegally. 

In turn, Attorney General Mark Brnovich has issued an informal letter of guidance to law enforcement on how to apply the law in light of the U.S. Supreme Court's 2012 decision regarding SB 1070. That decision struck down significant parts of the law, while leaving SB 1070's zombie heart still beating, albeit with far less vigor. 

In 2012, the high court declared that if officers were to stop individuals solely to check their immigration status or prolong stops to ask federal authorities about a person's immigration status, such practices would raise serious constitutional concerns. But the court's opinion also found that section 2b could be read simply to allow such inquiries to be made during the course of a stop. 

Brnovich's letter, which lacks the authority of law, essentially regurgitates what the Supreme Court and other courts have ruled: that a cop can contact U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) if there is reasonable suspicion to believe that a detainee is in the country without authorization, unless doing so would extend the stop.

Officers are not allowed to use race or ethnicity to develop reasonable suspicion, according to Brnovich's letter. Also, officers can use their discretion not to pursue an investigation into a detainee's immigration status for any number of reasons.

But there remains leeway for an officer to ask about a detainee's immigration status, to arrest criminal foreigners, and to transport undocumented foreigners to ICE or CBP. Officers may also make "consensual contact" with an individual and "inquire about any subject matter," and even ask to see someone's identification, though officers cannot demand this.

At a press conference Thursday in Phoenix to discuss the terms of the settlement, representatives of the ACLU, the Mexican American Legal Defense and Educational Fund (MALDEF), the National Immigration Law Center, and other groups involved in challenging the law tried to portray the resolution as a successful way to hamstring the most troublesome part of SB 1070.

Said Victor Viramontes, an attorney with MALDEF: "Today's opinion by the Arizona Attorney General lays out just how narrow the role local law enforcement has [in enforcing SB 1070]."

Viramontes said he hoped the settlement will allow Arizona to move on from an ugly chapter in its history.

Similarly, ACLU attorney Cecillia Wang said the forces battling SB 1070 have come a long way since the dark days of 2010, when SB 1070 was passed by the Arizona Legislature and signed into law by then-Governor Jan Brewer as part of a tsunami of virulent nativism that swept the state and inspired copycat measures nationwide.

"The supporters and proponents of SB 1070 clearly envisioned a state in which police officers and sheriff's deputies could go after people they suspected of being undocumented immigrants," Wang said. 

The model for the legislation, offered Wang, was none other than Maricopa County Sheriff Joe Arpaio, who from 2007 onward transformed his agency into a mini-ICE, initially with a grant of immigration authority from the federal government. Arpaio used that authority to engage in sweeps of local Latino communities, hunting for illegal aliens. Wang was one of the lawyers who helped put an end to Arpaio's racial profiling of Latinos in the landmark civil-rights case Melendres v. Arpaio

There is nothing subtle about SB 1070, which makes its aim plain in its preamble, describing its intent to "make attrition through enforcement the public policy of all state and local government agencies in Arizona."

Much of the law, including the odious section 2b, was enjoined by federal Judge Susan R. Bolton in July 2010, before it could take effect. The Ninth U.S. Circuit Court of Appeals upheld Bolton's injunction, and the State of Arizona appealed to the U.S. Supreme Court. Though 2b ultimately survived, Arizona's challenge ironically allowed the Supreme Court to reinforce, in the words of its 2012 opinion, the federal government's own "broad, undoubted power over immigration and alien status," which the states may not usurp.

The court also made clear that "[a]s a general rule, it is not a crime for a removable alien to remain present in the United States." Federal law decides who can stay and who must go. Any state laws that seek to interfere with that authority are pre-empted by federal law. Still, the court ruled, 2b could work in concert with the federal scheme.

That part of its SB 1070 decision did not please the ACLU.

In a statement at the time, ACLU executive director Anthony Romero raged that the court had "left the door open to racial profiling and illegal detentions in Arizona." He added that the ACLU had amassed an $8.7 million war chest to fight 2b and the copycat legislation that had cropped up in other states.

The Supreme Court left open the possibility of a challenge to section 2b on other grounds, such as violation of the U.S. Constitution's Fourth Amendment right against unreasonable search and seizure and the 14th Amendment's promise of equal protection under the law. For the next four years, the ACLU and its partners tried to overturn 2b for these reasons.

Why are the ACLU, MALDEF, and the others settling now?

Viramontes explained that the Supreme Court had limited their ability in its SB 1070 decision to pursue a challenge to the law on its face, rather than as it is applied. Nevertheless, he and the other attorneys had done lengthy discovery and depositions over the past years to see if a "facial" challenge was still possible. They concluded that it wasn't.

"Don't let your guard down. Know your rights. Don't talk to a police officer unless you have an attorney present."

tweet this
Now MALDEF and the others will have to monitor local law-enforcement agencies to ensure they aren't stepping outside of the parameters of the law.

But not everyone present was satisfied with the settlement.

Phoenix activist Sal Reza, speaking on behalf of the local human-rights group Tonatierra, one of the many plaintiffs in the suit, used the Spanish title of an old Mexican song "Miel amarga" ("Bitter Honey"), to describe the settlement.

"Today's a sad day in Arizona, because racial profiling has been instituted into law," Reza said. "That means any police officer can stop you and can make up stories."

He pointed out that the law allows a police officer to initiate an investigation into immigration status if a person cannot produce proper identification. If the person stopped has blue eyes and is Caucasian, they likely will not have a problem, Reza asserted. But if someone has brown eyes and brown skin, they'll face greater scrutiny.

Reza hailed the guidelines Brnovich issued, as well as the AG's concessions regarding parts of SB 1070 that criminalize the activities of day laborers and the "harboring" of the undocumented, but he worried that the people he works with as an activist are still in danger of being stopped and turned over to ICE.

"Our community, the one that I represent, I warn them: Don't let your guard down," he said. "Know your rights. Don't talk to a police officer unless you have an attorney present."

The Arizona Attorney General's Office framed the settlement as a commonsense solution that will save the state money. Spokeswoman Mia Garcia said that if the AG had gone to court over a challenge to the legal fees the plaintiffs were demanding, it might have cost as much as $3 million. The plaintiffs wound up settling for $1.4 million in legal fees.

The AG's office forwarded this statement to New Times from Brnovich: 

"Today's agreement puts an end to a lengthy legal battle while providing guidance to local police that will hopefully help [ensure] the law is enforced in a consistent and predictable manner. We also wanted to make it clear that no one should be unnecessarily detained based on any racial profile. Common sense and compromise prevailed, and that doesn’t always happen."

The ACLU and other pro-immigration groups have waged their own long war of attrition on SB 1070, and the gains have been significant. But as long as section 2b hangs over the heads of the undocumented, and as long as there is no comprehensive fix to the nation's immigration problem, fear of local law enforcement will remain an element of their survival.

Read the joint filing by the plaintiffs and the State of Arizona:

Read the Arizona Attorney General's informal opinion on SB 1070's enforcement:

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons