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Key Portions of Arizona Immigration Law Blocked By Federal Judge

One day before it was set to go into effect, a Federal District Court Judge has issued an injunction against the key portions of Arizona’s controversial immigration law:

U.S. District Court Judge Susan Bolton has issued a preliminary injunction preventing several sections of Arizona’s new immigration law from becoming law, at least until the courts have a chance to hear the full case.

Key parts of Senate Bill 1070 that will not go into effect Thursday:

•  The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

•  The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

•  The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

•  The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.

Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.

Bolton’s ruling followed hearings on three of seven federal lawsuits challenging SB 1070. Plaintiffs include the U.S. Department of Justice, the American Civil Liberties Union, Phoenix and Tucson police officers, municipalities, illegal immigrants and non-profit groups.

She denied legal requests by Gov. Jan Brewer, Maricopa County Sheriff Joe Arpaio and several other defendants seeking to have the lawsuits dismissed because, they argued, the plaintiffs did not prove that they would be harmed by the law if it went into effect.

Next, hearings will be scheduled to begin hearing the full case in the seven lawsuits. All or some of the suits could be consolidated. A full court hearing is likely to involve appeals, possibly as far as the U.S. Supreme Court, and could take several years.

Much of the text of the opinion, which I’ve embedded below, is taken up with a careful analysis of the law based on the criteria for an injunction under Federal law, but here’s a key part of the opinion from Judge Bolton’s analysis of the provision that required police to determine immigration status of all persons arrested:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.

(…)

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established

This obviously isn’t over yet. There will be fact-finding and a trial at some point in the future as well as, of course, appeals that are likely to last years. For the moment, however, the Arizona law has been essentially neutered.

Politically, it’s going to be interesting to see what impact this decision has across the country. Polls have shown repeatedly that a large majority of Americans support Arizona’s law and a new polls shows that similar majorities oppose the Justice Department’s decision to sue the State of Arizona. One can imagine that these voters are going to react negatively to this decision, although, of course, there’s not really much they can do about it since the matter is in the hands of the Court. Will it have an impact on the November elections, though ? That is what will be interesting to watch.

As promised, here’s the text of Judge Bolton’s Preliminary Injunction Order:

Preliminary Injunction dated 7/28/2010 in United States v. Arizon

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Anon says:

    Hm…what does “reasonable suspicion” mean? It sounds like an invitation for police to harass anyone who looks funny. And how does a natural-born US citizen “prove” that they are not an illegal immigrant? Do they need to carry around their birth certificate?

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  2. Herb says:

    “Will it have an impact on the November elections, though ?”

    I hope so….although probably not the impact that I personally would prefer. I would prefer all the irresponsible demagogues like Tom Tancredo, Joe Arpaio, and Jan Brewer get their asses handed to them.

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  3. JKB says:

    So does this mean that Arizona police are the only law enforcement in the country to have been enjoined from following up reasonable suspicion of unlawful presence or just that the state cannot require AZ law enforcement officers to follow-up?

    It also appears the verification of those arrested is tangle up in that the interpretation is that it requires all persons arrested to be verified. Seems that a simple language change to reasonably suspected would align that with what every other law enforcement agency in the country can do, especially those participating in the 287(g) program.

    The local rag had a story about a country near by that participates in the 287(g) program. Deportation are up for the county. I found this interesting:

    The agency’s priority, ICE spokeswoman Barbara Gonzalez said, is to identify and deport the most serious criminals.

    Nationwide, there are 71 local enforcement agencies that have signed agreements with ICE for 287(g), according to the ICE website.

    Deportations and voluntary departures through 287(g) have more than doubled across the country, from 16,441 in 2007 to 41,799 in 2009, according to Mrs. Gonzalez. But this year, only 18,405 have been deported so far.

    71 agencies participating and we get a peak year of 41,799 deportations out of how many million estimated to be illegally in the US? Of course, that doesn’t count those ICE declines to initiated deportation on or who avoid deportation after released. Now that’s an immigration policy.

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  4. Leo says:

    Reasonable suspicion is a term of art in criminal law. It means you have an articulated reason that the person has been involved in, is involved, or is about to be involved in a crime.

    That means you have to be able to explain the reasons why you believe it is the case. The classic example of not having reasonable suspicion is “He looked wrong.” It is often the case that the court determines an officer didn’t have reasonable suspicion because the prosecuting attorney did not ask questions getting at the reason why a person was stopped, or the officer was unable to articulate the reason.

    A person was wearing a full length winter coat in 90 degree weather while staring into a jewelry store and holding their side as if they are stabilizing a rifle is suspicious.

    A driver’s license is generally proof of citizen ship. You know, the thing you need to fly on an airplane or cash a check.

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  5. Brummagem Joe says:

    A not unexpected outcome surely?

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  6. Not unexpected at all, no

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  7. Zelsdorf Ragshaft III says:

    Anon and Herb. May you and your family be the victims of the next crimes commited by those in the country illegally. That is probably the only way to change your opinion. Cowards like yourselves should go visit the Arizona border country. Then I thought maybe they so. That is where the drugs they use comes to them from.
    What a reprehesible statement I just made! When a police officer stops you. They always ask for ID. If you do not have ID, the very act of not having ID raises suspicions. To drive in all states, a drivers license must be present while driving. Most states require identification for them to issue a drivers license. To have a false ID is a crime in most states. Some states call it a felony to make phoney IDs. If you are in posession of a fake ID when stopped that in and of itself is resonable cause for further invesitigation. If the Supeme Court says it is OK for cops to block a road to check for DUIs, I have ot believe they will find it OK for states to check the status of people driving with false IDs or no IDs.
    I just cannot wait for the political fall out from this decision. Who would have guessed a Clinton appointee would find for the government. I am shocked. 60% of Americans favor the law in Arizona. That will translate into votes which will change the direction in government.

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  8. Rick Almeida says:

    “A driver’s license is generally proof of citizen ship [sic].”

    No, it is not. Some states (4) use “enhanced” driver’s licenses, which also function as a passport card at the Mexican, Caribbean, and Canadian borders. Some other states (like AZ) require proof of legal residency to get a driver’s license. Most do not.

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  9. sam says:

    @ Zesldorf:

    “May you and your family be the victims of the next crimes commited by those in the country illegally. ”

    Pendejo.

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  10. Herb says:

    “Anon and Herb. May you and your family be the victims of the next crimes commited by those in the country illegally.”

    Unlike you, Zels, illegal immigrants don’t make me pee my pants in yellow, bone-shaking fear. When you’re not afraid, you can think clearly.

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  11. Brummagem Joe says:

    Zelsdorf Ragshaft III says:
    Wednesday, July 28, 2010 at 15:38
    “Anon and Herb. May you and your family be the victims of the next crimes commited by those in the country illegally.”

    !!!!!!!!!!!!!!!!!!!!!!!!!

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  12. @ Zesldorf:

    “May you and your family be the victims of the next crimes commited by those in the country illegally. ”

    You’re treading fairly close to the line there, buddy

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  13. Dantheman says:

    Zels,

    “May you and your family be the victims of the next crimes commited by those in the country illegally. That is probably the only way to change your opinion.”

    May you and your family be arrested for suspicion of being in the country illegally and have no way to prove your citizenship on you, so you are locked in jail for several days. That is probably the only way to change your opinion. (See, it works both ways)

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  14. PD Shaw says:

    I’m not surprised by the two provisions which create state crimes regarding immigration issues, but I am surprised that the court precluded law enforcement officers from investigating immigration status where reasonable suspicion exists. Or our officers still allowed to investigate reasonable suspicions, but cannot be mandated to do so?

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  15. just me says:

    I think there probably is a burden put on legal residents of hispanic origin, but if an immigrant is here on a green card, they are technically required to have those papers on them.

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  16. ponce says:

    “May you and your family be the victims of the next crimes commited by those in the country illegally. ”

    A recent poll showed the good citizens of Arizona are far more upset about illegal immigrants using government services than they are about any crimes they may commit.

    Ironic given the enormous federal subsidies Arizonans receive from the taxpayers of states like California and New York.

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  17. mike says:

    I lived 50 miles from the border in AZ and the crimes are not being committed by illegals – the vast, overwhelming majority are by good ol American meth heads.

    Zels – your credibility is shot when you say such things as “may your family”- very sad.

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  18. sam says:

    @PD

    “Or our officers still allowed to investigate reasonable suspicions, but cannot be mandated to do so?”

    My understanding is that’s the ruling. The state cannot mandate, etc., but the officers are free to do it if they wish.

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  19. Rick Almeida says: “Some other states (like AZ) require proof of legal residency to get a driver’s license. Most do not.”

    Actually, I think you’ve got that opposite. About forty states would have met AZ’s ID requirements, with the rest not asking for proof of legal residence. One of those in the latter category is NM.

    Mike: illegal aliens have been known to travel to other states; what happens on the border doesn’t stay on the border. Also, can you guarantee that all or the vast majority of your local officials haven’t been corrupted?

    Also, in case anyone would like to take smart and highly effective action to oppose illegal immigration in general, see my name’s link for some things you can do. Even just one smart, aggressive lawyer who did the first item on that page could have a powerful impact on this issue.

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  20. G.A.Phillips says:

    ***May you and your family be arrested for suspicion of being in the country illegally and have no way to prove your citizenship on you, so you are locked in jail for several days. That is probably the only way to change your opinion. (See, it works both ways)***

    lol, what? I don’t carry my drivers license because it allows me not to wast money I don’t have. I have been pulled over several times for, a tail light out, muffler and such, I tell the cop I don’t carry one because I’m an addict, so he goes and calls it in. Never had a problem. Every Time I have ever interacted with a cop, I have have been asked for ID. AND I AM PALE WHITE!!!!!!!!!

    Dude you are speaking hypothetical crazy talk, and guess what so is the DOJ……

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  21. anjin-san says:

    A driver’s license is generally proof of citizen ship. You know, the thing you need to fly on an airplane or cash a check.

    You don’t have to be a citizen to fly or to cash a check. Typical dumbed-down crap from the right.

    Zels… When are you going to thank Obama for fighting to extend your unemployment benefits? Cause Palin and your other idols don’t give a crap if you end up sleeping in a cardboard box.

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  22. mike says:

    What you can do – “officials haven’t been corrupted” – you really should get out more – most of the officials in my town of 40,000 are retired military – i was specifically responding to the allegation of border violence caused by illegals – it isn’t – it is caused by US citizens just like most violence in Houston, Dallas, and every other major city

    Food for thought – El Paso is the second safest large city in the country and about 83% hispanic and a border town

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