Feathered Bastard

SB 1070: Two More Sections Enjoined by Judge Susan R. Bolton

With oral arguments scheduled to take place April 25 before the U.S. Supreme Court on Arizona's breathing-while-brown statute Senate Bill 1070, Arizona District Court Judge Susan R. Bolton today enjoined two sections of the law she had not previously put on hold in 2010, when she stymied the most egregious parts of 1070.

The sections enjoined today were targeted at day laborers, also known as jornaleros. Section 5a prevented a driver from stopping to pick up passengers "for work at a different location," if the driver's vehicle impeded "the normal movement of traffic," and section 5b would have made it illegal for that passenger to get into such a vehicle.

Bolton had previously blocked the enforcement of section 5c of the law in July of 2010, along with other sections. Section 5c essentially outlawed day laborers by making it illegal for someone in the United States unlawfully to solicit work in a public place.

At that time, the judge found that 5c conflicted with federal law regulating the employment of aliens. This, in United States vs. State of Arizona, the U.S. Department of Justice's lawsuit to block 1070. That's the same case to be heard by the Supremes.

These new injunctions come in a different lawsuit, Friendly House vs. Michael B. Whiting, and they are a direct result of a Ninth Circuit Court of Appeals decision last year overturning a Redondo Beach, California ordinance prohibiting solicitation of employment from a sidewalk. The Supreme Court recently declined to hear Redondo Beach's appeal in that case.

Bolton found that sections 5a and 5b of 1070 impinged on the First Amendment rights of day-laborers, specifically their right to engage in commercial speech. Lawyers for the defendants, which include Arizona's county attorneys and sheriffs, argued that 5a and 5b were merely traffic restrictions. (Read the decision, here.)

But Bolton saw this ruse for what it was, observing that because the entirety of the law was created to drive illegal immigrants from Arizona, those sections were written with one overarching purpose. 

Indeed, she quoted the law's own stated intent of making "attrition through enforcement the public policy of all state and local government agencies in Arizona," and that the "provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."

Thus, via this prejudiced preamble attached to the law by ex-state Senate President Russell Pearce and now-Kansas Secretary of State Kris Kobach -- the Sith Lords of the anti-immigrant movement and 1070's co-authors -- the law essentially outflanked itself.

Bolton writes: "The fact that A.R.S. § 13-2928(A) and (B) were created as part of a package of statutes and revisions aimed at perceived problems related to unlawful immigration also weighs against a finding that the provisions are `drawn to' address a traffic problem."

Gotta love it when the bigots are cut down with their own swords. Now all eyes are on April 25, and the decision to come sometime thereafter, to see which will prevail: nativist intolerance or the U.S. Constitution.

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