Feathered Bastard

Arizona Senate Bill 1070 on Hold: U.S. District Judge Susan R. Bolton Strikes Down Heart of Law

Although district court Judge Susan R. Bolton did not enjoin Arizona Senate Bill 1070 in its entirety this morning, she cut the heart out of the state's discriminatory "papers, please" legislation, leaving its zombie-like corpse bloodied but still standing.

In her order filed in response to the U.S. Department of Justice's lawsuit against the state of Arizona, Bolton rejected the federal government's argument that she should issue a preliminary injunction against the entire statute. However, she ruled that the DOJ probably will prevail on several key provisions, which are crucial to implementing 1070's intent of "attrition through enforcement."

(You can read Judge Bolton's entire 36-page decision, here.)

Most importantly, she enjoined Section 2b of the law, the part mandating that law enforcement officers check the immigration status of individuals if cops have reasonable suspicion that they are the country illegally. Section 2b also required law enforcement to check the immigration status of all those arrested before they are released.

Bolton concluded that 2b is preempted by federal law, would tax federal law enforcement's resources, and would discriminate against aliens whom the government knows about, but do not have "papers," so to speak.

"Certain categories of people with transitional status," she wrote, "and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention."

Bolton also found that Section 3, the provision making it a state crime for a legally present alien to not carry their alien-registration documents with them, is preempted by federal law and the federal government's supremacy over immigration. She stated that the section was "an impermissible attempt by Arizona to regulate immigration matters."

On Section 5, dealing with day laborers, Bolton enjoined the part that would have made it unlawful for an undocumented immigrant to solicit work, but she refused to enjoin parts making it a crime to pick up a day laborer or for a day laborer to be picked up, if a motor vehicle impedes the flow of traffic.

Bolton left alone Section 4, which deals with human smuggling and a part of Section 5 that deals with harboring illegal aliens. That harboring section is particularly troubling for those who provide humanitarian aid to the undocumented.

She also did not enjoin portions of Section 2, preventing law enforcement agencies, cities, or counties from adopting policies limiting the enforcement of federal law, and allowing Arizona citizens to sue agencies if they violate the provision.

Bolton enjoined section 6, which authorized the warrantless arrest of anyone a police officer believes has committed an offense that makes them removable from the Unites States. She pointed out that this was "a task of considerable complexity that falls under the exclusive authority of the federal government."

Chris Newman, a lawyer for the National Day Laborer Organizing Network, admitted that Bolton's enjoinment of Section 2b was a big deal, but he bemoaned the provisions remaining as too broad and likely to be abused by nefarious law enforcement officials, such as Maricopa County Sheriff Joe Arpaio.

"If you're going to stab me in the back with a six-inch knife, you can pull it out three inches and call it victory," Newman said of Bolton's decision, expected to be challenged in the 9th Circuit Court of Appeals.****(Please see clarification below.)

But the ACLU's Annie Lai, one of the lawyers who drafted an ACLU complaint against the law, called it, "A major victory, a historic day," though she declined to go into more detail until the ACLU released a formal statement.

(I should mention, in the interest of full disclosure, and with some pride, that Village Voice Media, New Times' parent company, is underwriting the cost of the ACLU's SB 1070 lawsuit. That lawsuit has been joined by the NAACP, MALDEF and other major civil rights organizations. You can read more about the effort in the Web page for VVM's immigration series "Amongst U.S.," here.)

Hannah August, spokeswoman for the U.S. Department of Justice, also claimed victory.

"We believe the court ruled correctly when it prevented key provisions of SB 1070 from taking effect," she said in a statement released shortly after Bolton's ruling. "While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive."

Still, I wish Bolton had enjoined the whole megillah, not in piecemeal fashion. SB 1070 is part of an insidious nativist endeavor to drive Hispanics, illegal and legal, out of the state of Arizona, and to make the ground here as inhospitable as possible to them.

Moreover, the state of Arizona does not have authority under the U.S. Constitution to usurp the federal government's plenary power over immigration.

But if Bolton carved up the baby 1070 in an un-Solomon like fashion, at least she put on hold the law's most dangerous provisions. And for now, as Lai states, it is a battle won, even if the war will drag on indefinitely.

***Please Note: NDLON's Chris Newman called me back to clarify this statement. He told me he was attributing the quote to Tupac Enrique Acosta of the Phoenix civil rights organization Tonatierra.

Acosta tells me he was borrowing a line from Malcolm X and referring to the law in general and the policies that produced it. If I misunderstood Newman, all apologies. It's a great quote, whoever said it.