ARIZONA REPUBLIC
By Michael Kiefer, JJ Hensley and Daniel Gonzalez
September 18, 2012
http://www.azcentral.com/arizonarepublic/news/articles/2012/09/18/20120918arizona-immigration-law-police-can-start-enforcing-judge-rules.html#ixzz26ux9vxAD
SB 1070's "show me your papers" provision officially became law Tuesday, after a U.S. District Court judge lifted an injunction against the section of Arizona's immigration law that requires police officers to check the legal status of people under certain conditions during investigations or traffic stops.
How the law will be enforced is still unclear.
Law-enforcement agencies say they have trained their officers not to violate a person's constitutional rights . But civil-rights and advocacy groups warn that racial profiling is likely to occur.
On Tuesday, in a three-paragraph ruling drafted jointly by the U.S. Department of Justice and lawyers for Arizona, Judge Susan Bolton ordered that the injunction be dissolved against Section 2B of Senate Bill 1070.
Bolton had imposed an injunction on key parts of the law in July 2010.
The injunction was upheld by the 9th U.S. Circuit Court of Appeals. Then in late June, the U.S. Supreme Court upheld all but one part of the injunction, Section 2B, which requires officers to make an attempt to determine the immigration status of a person stopped, detained or arrested if there is reasonable suspicion that the person is in the country illegally.
The Supreme Court sent the case back to Bolton.
Gov. Jan Brewer applauded Tuesday's decision.
"Today is the day we have awaited for more than two years: The injunction against the heart of SB 1070 has been lifted," Brewer said in a written statement.
"It is not enough that SB 1070 be enforced. It must be enforced efficiently, effectively and in harmony with the Constitution and civil rights. I have full faith and confidence that Arizona's state and local law-enforcement officers are prepared for this task."
Phoenix attorney Daniel Ortega, however, said he believes the law will lead to rampant racial profiling by police who use it to stop and question Latinos about their legal status based on appearance. He said he and other groups will be documenting racial profiling to file legal action challenging the law again in court.
"We have to respect authority," Ortega said. " We have to be cooperative. But we have constitutional rights, and we should exercise them, especially if we believe that the police are racially profiling us and the community."
Bolton also ordered Tuesday that three other sections of SB 1070 be permanently enjoined. Those sections required immigrants to carry immigration papers, required police to determine whether a person had committed an offense that could lead to deportation, and barred illegal immigrants from work.
Karen Tumlin, an attorney with the National Immigration Law Center, said the injunctions speak to an ultimately successful effort to stop SB 1070 from taking effect.
"If anyone should be claiming victory today, it's the Department of Justice, because they had three provisions of SB 1070 that were permanently stricken from Arizona's law books," Tumlin said.
Bolton has also enjoined two other components not included in Tuesday's order: one that prohibited day laborers from blocking traffic while seeking work and another that forbade harboring or transporting illegal-immigrant criminals. The state of Arizona has appealed the first of those two.
Brewer signed SB 1070 into law in spring 2010. It was quickly challenged in lawsuits filed by the Justice Department and civil-rights and advocacy groups. The Justice Department argued that federal law pre-empts state law.
When the case reached the Supreme Court, it ruled that Section 2B did not automatically violate constitutional rights and was not necessarily pre-empted by federal immigration law. But the justices suggested the matter could be reconsidered if evidence of violations surfaced after the law went into effect.
A coalition of civil-rights and immigrant-advocacy groups, including the American Civil Liberties Union, the National Immigration Law Center and Mexican American Legal Defense and Educational Fund, tried to get the injunction reinstated.
But on Sept. 5, Bolton denied the request and ordered the state and federal governments to draft the order dissolving the injunction.
The civil-rights coalition, meanwhile, has appealed Bolton's decision to the 9th Circuit. Coalition attorneys and the state will argue about the injunction on enforcing the law against day laborers in front of the 9th Circuit on Oct. 17.
Arizona law enforcement has been studying how to enforce Section 2B and determine detainees' status without violating their constitutional rights.
Sgt. Tommy Thompson, a Phoenix police spokesman, said that because the law requires contact with U.S. Immigration and Customs Enforcement on legal detentions, most of the screening would take place at a jail facility, where a full-time staff of federal agents reviews the immigration status of every inmate booked into jail.
But questions center on what will happen when officers have made a stop but not an arrest, such as a traffic citation, and the detainee does not have "presumptive identification" that would allow the officer to move on.
Officers can detain someone for a reasonable amount of time to determine their status, but that time is not defined.
"That's what always comes into play: What is reasonable? It just depends on the circumstances," Thompson said. "There are different things that can come into play, but we can't hold on to you for an inordinate amount of time."
For Phoenix officers, who have been retrained on the law since the Supreme Court ruling this summer, the instruction is simple, Thompson said: "I am required to contact ICE if I have a legal detention where you have broken a state, a county or local law, and after that if I develop reasonable suspicion that you're here illegally.
"The other thing, too, is, there are some exceptions to this rule: If it would interfere with an investigation, if you're the victim of a crime, if you're a witness of a crime."
Amber Cargile, a spokeswoman for ICE, issued a written statement saying that federal immigration-enforcement officials will continue to answer calls from local police to verify immigration status. But officers will respond to calls for assistance from police only if the individual meets the agency's enforcement priorities. Those priorities emphasize targeting violent criminals and repeat and recent border crossers.
After the Supreme Court ruling and ICE's issuance of priorities, some politicians, including Maricopa County Sheriff Joe Arpaio, predicted that federal agents will stop taking custody of undocumented immigrants who do not meet the pre-defined priorities.
Since that ruling, the Sheriff's Office has detained several people who were found to be in the country illegally but were not suspected of violating state laws; ICE agents took them into custody.
Still, Arpaio said Tuesday that ICE will face more dilemmas as police agencies statewide begin contacting the agency about immigrants who have not violated state laws and do not meet the criteria for enforcement priorities.
"The test will be when you stop a car, and a person is here illegally and has been here for a while and doesn't meet the new criteria. ... What do you do?" Arpaio said.
Kurt Sheppard, CEO of Valle del Sol, part of the coalition lawsuit, said he believes most police officers will not use the law to violate people's civil rights because agencies have set up guidelines to prevent racial profiling.
Ortega, the attorney, said he is advising undocumented immigrants who are stopped by police but don't have driver's licenses to give officers their names and birth dates but not to answer any questions about legal status.
Meanwhile, advocacy groups Comités de Defensa del Barrio and Tonatierra are planning a march on Saturday at the Fourth Avenue Jail to protest the enforcement of SB 1070, said Salvador Reza, an organizer. They also plan to attend today's Phoenix City Council meeting to raise concerns about racial profiling by police, Reza said.
The legal battle over SB 1070 is not over. The Justice Department and the coalition lawsuits are still ongoing. The coalition, for example, also raised a separate claim that SB 1070 was passed with intent to discriminate, in violation of the Equal Protection Clause of the 14th Amendment.
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