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SB 1070 Field Day: Judge Susan Bolton May Enjoin Law in Part

This just in: Get Out! Arizona and America Join Joe Arpaio in Rushing to Inquire: Are Your Papers In Order?

In a day filled with protests, arrests, legal arguments, an appearance by the governor, and at least one certified neo-Nazi, the most significant developments in the SB 1070 saga happened within the Sandra Day O'Connor U.S. Courthouse in Phoenix, not without.

There, Judge Susan R. Bolton oversaw two hearings Thursday where the plaintiffs sought to have her enjoin SB 1070, Arizona's new "papers, please" legislation. But Bolton, without indicating when she would make a decision, signaled that if she enjoins SB 1070, she will do so in part, perhaps gutting significant portions of the law while leaving the remainder ready to go into effect July 29.

Whatever her decision, legal experts anticipate that her ruling will be appealed to the 9th Circuit Court of Appeals, which would likely put the law on hold.

Although lawyers for the ACLU, MALDEF, and finally the U.S. Department of Justice argued in separate hearings that the law must be taken as a whole, Bolton kept directing them to the specifics of certain provisions.

"You're not asking me to do that?" Bolton asked ACLU attorney Omar Jadwat at one point in the morning hearing on the ACLU/MALDEF suit about his request that she enjoin 1070 in its entirety.

"Shouldn't we be talking about it section by section?" she continued. "And talk about what you want me to enjoin?"

She cited the severability clause in the statute, which would allow her to partially enjoin, while leaving the rest of the statute in force.

Jadwat contended that the law's stated intent, to make "attrition through enforcement" the policy of Arizona, indicated that all parts of SB 1070 were meant to work together toward this goal.

However, Bolton declared that, "I cannot enjoin the [law's] intent."

Jadwat replied that the ACLU and others bringing the suit would be happy if she enjoined "the operative parts of the law...[which] would give us the same relief." Jadwat listed several provisions the plaintiffs want put on pause with a preliminary injunction.

But Bolton kept coming back to specific sections, such as: one dealing with holding those arrested until their immigration status is verified (section 2b); criminal provisions for aliens not carrying a registration document (section 3); and one allowing police to make a warrantless arrest if the individual has committed a "public offense" that makes them removable from the United States (section 6).

Regarding part of 2b, Bolton questioned Governor Brewer's lawyer John Bouma intently, pointing out that even the Arizona Peace Officer Standards and Training Board (AZ POST), in its training material on SB 1070, acknowledged that it wasn't sure of the provision's meaning.

"[AZ POST] left it up to each agency to decide what that sentence means," she noted. "How can we do that?"

Bouma was clearly stymied.

"I think the sentence does need clarification," he admitted.

Bolton observed that this could lead to the arrest or detention of "tens of thousands of people" who might otherwise be cited and released. 

Bouma asserted that it would only take about ten minutes to check someone's status with Immigration and Customs Enforcement. But Bolton referred to an exhibit quoting an ICE official who stated that the wait could be more than 80 minutes, on average.

As to section 6, Bolton contended that only an immigration judge would know whether or not someone had committed a "public offense" that made them removable. Bouma countered that  the provision simply allowed a police officer to hold someone for ICE.

MALDEF attorney Nina Perales insisted that SB 1070 criminalizes individuals who may be undocumented but are in the process of applying for asylum or some other humanitarian waiver. Such individuals would not have the registration document required by section 3 of the law.

SB 1070 would also limit the freedom of travel, she argued, as visitors to Arizona from New Mexico or other states that allow people who are undocumented to obtain drivers licenses would find that their identification is not accepted by Arizona as proof of legal presence.

And Perales argued SB 1070 would allow for discrimination based on race, and that there was already considerable evidence that traffic stops were being used as a pretext to inquire about immigration status. She pointed to press releases from the Maricopa County Sheriff's Office quoting Sheriff Joe Arpaio on the number of illegal aliens nabbed in his anti-immigration sweeps. 

In his rebuttal, Bouma stated that it "defies reality" that people could be racially profiled under the law, because Arizona has "a tremendous Hispanic heritage" and there are literally too many Hispanics in the state for all of them to be profiled.

The lunch break between the two hearings involved a circus-like atmosphere outside the court building.

There were press conferences by attorneys (including Tom Liddy, son of Watergate villain G. Gordon Liddy, who was there representing Sheriff Joe), protests that later led to the arrest of seven activists, and the odd sight of local neo-Nazi Harry Hughes being interviewed by CNN regarding his "illegal alien" patrols in the desert with fellow storm trooper J.T. Ready. (Ready, however, was not around.)

Court reconvened at 1:30 p.m. for oral arguments in the federal government's SB 1070 lawsuit, with Bouma arguing for Governor Brewer, and DOJ attorney Ed Kneedler arguing for the U.S. Government. Brewer showed up for the afternoon session, and her appearance was noted by Bolton a couple of times during the proceedings.

As expected, Kneedler contended that the regulation of immigration was "exclusively a federal power" under the U.S. Constitution and acknowledged as such by the U.S. Supreme Court. He stated that the Framers of the Constitution intended for the nation to "speak with one voice" on immigration, and that immigration was "integrally related to the nation's foreign policy."

He observed that America is "a nation of immigrants," and federal immigration law balanced complex and often competing priorities, such as national security, trade with foreign nations, welcoming those immigrants who come here legally, humanitarian concerns, and a host of others.

On the other hand, he said, SB 1070 had one purpose: attrition through enforcement.

Bolton fired off rounds of skeptical questions at Kneedler, and the back and forth seemed argumentative at times.

"Why can't Arizona be as inhospitable as they wish to [illegal immigrants]?" wondered Bolton at one point.

Kneedler replied that Arizona could be inhospitable, but not as laid out in SB 1070. The state of Arizona is not allowed to have its own immigration enforcement scheme. That's the province of the federal government, and the Supremacy Clause of the U.S. Constitution, making the Constitution and federal law the highest law of the land, ensures this.

SB 1070 is preempted by federal law, Kneedler told her, and it directly interferes with the federal government's enforcement priorities. If it is not enjoined, there is the very real threat other states will follow in Arizona's footsteps, leading to a patchwork of different immigration laws across the country.

Bolton asked him what was wrong with a simple inquiry from the state on someone's immigration status. Kneedler responded that the government's resources are limited, and that constant calls from police officers to verify status on people in whom ICE may have no interest could overwhelm ICE's system. Thus, SB 1070 would directly interfere with the government's immigration priorities. 

"Checking a person's [immigration] status at all costs without taking into account federal concerns" is an encroachment on federal authority, he said. 

And in any case, the federal government has programs, such as Secure Communities, which check the immigration status of those booked into local jails, he added.

Playing devil's advocate, Bolton observed that not a day goes by without the news reporting on a drop house being busted by authorities. Didn't Arizona have a legitimate concern with "public safety" and the "dangerous situation" that harboring illegal aliens causes?

"It is our submission that is a federal responsibility," said Kneedler of SB 1070's harboring provision, not budging an inch on his argument.

Bouma jumped on Kneedler's statement during his rebuttal, cracking that, "the [federal] government doesn't think coyotes should be prosecuted."

He also scoffed at the notion that immigration is related to foreign policy, asserting that, "1070 doesn't have anything to do with foreign nations at all."

"It seems to have gotten people from foreign [countries] upset with us," Bolton retorted.

"They're upset with us anyway," said Bouma, dismissing the concern.

He added, "You can't catch 'em [illegal aliens] if you don't know about 'em, and they [the federal government] don't want to know about 'em."

Bouma insisted "the status quo is unacceptable," and mentioned the death of a Phoenix police officer by an illegal immigrant who had been ordered removed. He also talked about illegal aliens smuggling "black tar heroin" into the country, and brought up signs placed in the Arizona desert by the U.S. Bureau of Land Management warning visitors of drug smugglers and other criminal activity. 

Bolton mentioned that she had seen the signs in a video Governor Brewer made criticizing them.

With his remaining time, Kneedler drove home the notion that the law would create irreparable harm to U.S. foreign relations, and gave examples of strains in relations with Mexico over the issue. The U.S. had to also be concerned with "the reciprocal treatment of U.S. citizens abroad."

Ultimately, he told Bolton, Arizona can't regulate immigration "any more than the state can bring charges for the [federal] tax code."

He urged her again to enjoin the law, having earlier singled out sections 1, 2 and 3. (Section 1 is the "attrition through enforcement" intent of the law.) Bolton took the matter under advisement.

Outside the courthouse, Governor Brewer's flack Paul Senseman allowed Brewer a comment or two before hustling her away from reporters.

"Judge Bolton has a very good grasp in my opinion of the issues we're undertaking in there today," she said, "She certainly understands the dangers that Arizonans face in regards to harboring of illegals in the state of Arizona."

But most of the people I spoke with on the other side of the lawsuits expressed the belief that Bolton would at least enjoin in part. One of those was Pima County Legal Defender Isabel Garcia, whose group Derechos Humanos was a plaintiff in the ACLU/MALDEF suit.

"She made it clear today that she believes in the viability of the severability clause," said Garcia of the provision that would allow Bolton to leave most of SB 1070 standing, while enjoining sections of it. "But on everything else I think it was positive...All in all I am pretty optimistic."

Bolton does not have to issue a decision on an injunction before July 29, the date 1070 is scheduled to go into effect, but most observers believed she will. 

It's worth remembering that an injunction would not overturn the law, just place all or part of it on hold until the various lawsuits play themselves out. The question remaining seems to be how much of the law Bolton will allow to go into effect come the 29th.

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