See also: SB 1070 Slugfest: Will Judge Susan Bolton Block 1070's "Papers Please" Section?
See also: SB 1070 Oral Arguments on "Papers Please" Section Scheduled for August 21
See also: ACLU Seeks New Injunction on "Papers Please" Portion of SB 1070
See also: SB 1070, SCOTUS, Friendly House, and a Ray of Hope
See also: Russell Pearce's Falsehoods, Inaccuracies and Inventions on Channel 12's Sunday Square-Off
I just read through the transcript of this Tuesday's oral arguments before Judge Susan R. Bolton on Senate Bill 1070's section 2(b), the "papers please" portion of the law. This, in the federal lawsuit Valle del Sol v. Whiting.
My favorite part is when Governor Jan Brewer's attorney John Bouma, chairman of the powerful law firm Snell & Wilmer, throws the law's primary pimp, disgraced, recalled former state Senate President Russell Pearce under the proverbial bus.
The passage is quite delicious, and though I reported on the hearing in a previous blog, the transcript gives me the benefit of the exact wording of an ironic exchange between Bouma and Bolton.
Bouma concedes that "there's no question Russell Pearce was pushing ," but he contends that there's no reason it would not have become law "with or without Russell Pearce."
Snell & Wilmer's chief bottle washer even claims there was "support for this statute" from "Hispanics in the legislature."
Really? Other than far right state Representative Steve Montenegro, who hails originally from El Salvador and who's carried water for Pearce even post-recall, I can't think of one Hispanic legislator who backed 1070.
(Though I can think of one who walked on the vote, but I digress.)
In any case, that's when Bouma kvetches mightily about what the plaintiffs are alleging.
"And to think that the suggestion that Arizona is full -- the legislature and the Governor and that are full of a bunch of people who are racially motivated," he exclaimed, "when all you have to do is walk out there and walk around the offices and see that all their staff -- or at least a significant part of their staff -- is of Hispanic background is -- you know, the fact that they would even suggest that is just offensive."
A weird argument -- that a state's rulers are not Mexican-bashing bigots because some of the people who work for them are Latinos.
At one point, Bolton asks Bouma about a slew of racist e-mails sent out by Pearce before, during and after the 1070 debate.
"Well," says the judge, "there are some offensive things in some of the e-mails that were attached to the Plaintiffs' motion that certainly suggested some discriminatory animus."
You can almost hear the rusty gears in Bouma's cranium creak, as he attempts a save.
"I would agree that there were some awful e-mails -- there was some awful thoughts in there," he acknowledged. "You know, you can't deal with people in that respect."
Then he added:
"But to suggest that the people who are interested in solving the problem of illegal immigration were all of that same mind or that the officers, all these professionals -- I hope you'll take the time to read the statements by the professional officers."
The plaintiffs did not suggest that just because someone voted for 1070, they're a bigot. Yet, SB 1070 was primarily motivated by a fear of Hispanics whipped up by Pearce and his allies.
In in his written response to the plaintiffs' motion for an injunction, Bouma attempted to defend some of Pearce's outrageous lies about Hispanics.
But in front of the judge, he practically pulled a Peter and denied ol' Russ three times.
Pearce was not in attendance, I should add. Which I'm sure made that exchange less cringe-worthy for Bouma.
Bouma veers uncomfortably into matters of race in pages 30 through 38, after Bolton observes that the implementation of 2(b) will disproportionately affect Hispanics. Eventually, Bouma agrees with this proposition, he just doesn't think that would be evidence of discrimination.
"Who else is coming across the border like the Hispanics?" he asks at one point, later adding, "So the fact that they have the most border crossers and that they're the ones impacted by a law against border crossers doesn't mean that's discriminatory."
If you're Hispanic and you happen to live in Arizona, you're just out of luck, hombre. And whether you're legal or not, you deserve a shake-down, according to Bouma.
Of course, racial profiling is illegal and violates the 14th Amendment. But Bouma doesn't believe there will be widespread racial profiling, and yet he agrees that Latinos will be affected more than Anglos by 1070's 2(b). So how do we get the latter without the former?
This is where Muslims and African-Americans get into the mix.
"The fact that a lot of the people who are the illegal immigrants are Hispanic takes you right back to the Supreme Court decision about the discussion of why are people looking at people of Muslim descent in connection with the September 11th problem, and the Supreme Court basically says: What would you expect?
"And that's what these -- the other three Supreme Court cases I mentioned to you say. Is if they are the people that are involved in this, if they are the people that are doing the crack cocaine and there's a much higher proportion of Blacks than anybody else, then they're going to end up affecting a higher proportion of the Blacks.
"That does not have a discriminatory impact. It doesn't have a discriminatory impact at all. It has an impact on the people that are doing it."
Bouma's referencing a study introduced in certain Supreme Court cases. Nevertheless, the disparity between sentences for possession, sale or what have you of crack cocaine and powder cocaine, has been widely noted. That 100-to-1 disparity led to 2010's Fair Sentencing Act, which attempted to rectify it.
A 2006 ACLU position paper observed that, "Because of its relative low cost, crack cocaine is more accessible to poor people, many of whom are African Americans. Conversely, powder cocaine is much more expensive and tends to be used by more affluent white Americans."
And I would suggest that if there was not a perception of a discriminatory effect and an injustice with the crack cocaine versus powder cocaine laws, Congress would never have stepped in to try and rectify the matter.
But 1070 doesn't just happen to have a discriminatory effect on Hispanics, a "motivating factor" in its passage was racial and ethnic animus, as clearly was demonstrated in Pearce's emails, as well as in the bigoted statements and bogus stats proffered by the pro-1070 crowd.
Karen Tumlin, a lawyer with the National Immigration Law Center, argued that the plaintiffs were asking for an injunction on section 2(b) because "race and national origin were a motivating factor in [its] passage." She maintained that the selective prosecution cases Bouma was referring to were "off point."
Legislators knew 1070 would have a discriminatory effect, and yet they passed 1070 anyway. Indeed, the primary pushers of this law, men like Pearce, wanted 1070 to have a discriminatory impact.
Bolton asks Tumlin if section 2(b) can be implemented without a consideration of race or an assumption that local cops will racially profile. Tumlin's answer is so significant that I reproduce it here in full.
And to be clear, Your Honor, a finding that Plaintiffs are likely to cede on their equal protection claim here does not require the Court to find that law enforcement officers will racially profile.
What it requires a finding of is that race was a motivating factor and that legislators knew and were aware that there would be an impact on a protected group. And so the finding of "I assume that law enforcement officers will racially profile" is not a finding that the Court has to make here.
I would note that the text of 2(B) itself where -- and this is language that the State has pointed out to you several times -- where it says that race, national origin, or color shall only be considered, quote, except to the extent permitted by the United States or Arizona constitution, actually supports Plaintiffs' discriminatory impact claim and here is why.
It's crystal clear under Ninth Circuit case law and it's crystal clear in the material that the AzPOST has put out that race in a border state, in effectuating a stop, race cannot be a factor whatsoever, except in the caveat when you are looking for a specific suspect in a particular racial group.
So this language itself that implies or suggests that maybe sometimes race is an appropriate factor also gives more credibility to Plaintiffs' argument that the legislators had race in mind and that it was a motivating factor.
Excellent points, all, and well made, as is Tumlin's observation that, "there is a de minimus harm to the State from keeping enjoined a provision that has already been enjoined for over two years."
The plaintiffs had a stronger argument on Tuesday, and Bouma's response did not really address that argument. Instead, he went off on a tangent about Muslims, crack cocaine and African-Americans.
A safe decision for Bolton would be to let 2(b) go into effect, while blocking 1070's harboring provision, which is also at issue. This would be in step with two recent 11th Circuit Court of Appeals rulings on 1070 copycat laws in Alabama and Georgia.
Bolton, however, could enjoin while certifying a question to the Arizona Supreme Court, asking it to interpret how the section can be constitutionally applied.
She would be well within the law to do this, though it would be a bolder step than simply ruling after the manner of the 11th Circuit.