NACDL amicus curiae brief From [HERE] A federal judge in Arizona has rejected a last-ditch effort by civil liberties and immigrants' rights groups to block enforcement of a hotly-contested provision of Arizona's anti-illegal immigration law, S.B. 1070.
U.S. District Judge Susan Bolton (in photo) said in an order Wednesday that she would not stand in the way of a provision in the law requiring police to determination the immigration status of people they encounter and suspect of being in the country illegally. The immigrants' rights groups argued that Bolton could block the law because it coud infringe on individuals' constitutional rights, but Bolton noted that in June the Supreme Court indicated that provision could take effect and that any legal challenges are pre-mature.
From [HERE] Section 2(B) gives police too much discretion when stopping or detaining persons while “checking” their citizenship status. The National Association of Criminal Defense Lawyers (NACDL) and AACJ argued in their brief that Sec. 2(B) cannot be implemented without racially profiling Latinos in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. (That is, police stops and detentions of persons based on physical characteristics orpersons who look Latino to the police are reasonable in Arizona - any stop and detention of a non-white person). Even lawful detentions and arrests become unconstitutional when the detention becomes prolonged or unreasonable. If officers rely on profiling characteristics such as a person’s ethnicity in determining whether a person should be detained for an immigration check, Sec. 2(B) becomes an unconstitutional “stop-and-identify” law repugnant to all citizens.
Bolton wrote "This Court will not ignore the clear direction in the Arizona opinion that Subsection 2(B) cannot be challenged further on its face before the law takes effect. As the Supreme Court stated, Plaintiffs and the United States may be able to challenge the provision on other preemption and constitutional grounds 'as interpreted and applied after it goes into effect," Bolton wrote in her order (posted here.) She did order that a provision on harboring aliens be blocked.
Bolton issued a separate order Wednesday asking the State of Arizona and the Justice Department to propose a joint order that would put the Supreme Court's June ruling into effect. She said they could propose a joint order within ten days, or the state could propose an order and the feds could lodge any objections to it. Justice Department officials have declined to comment to POLITICO on their preferred timing for allowing that part of the law to take effect.
"Arizona is one big step closer to implementing the core provision of SB 1070. I applaud the federal court for siding with the U.S. Supreme Court in refusing to block the most critical section of this law," Gov. Jan Brewer (R-Ariz.) said in a statement Wednesday afternoon. "After more than two years of legal challenges, it is time that Section 2(B) of SB 1070 take effect. Given today’s ruling, along with the federal court’s suggestion that it intends in the very near future to formally lift the existing injunction, it is clear the day of implementation is fast approaching."
Opponents, however, said they will keep up the battle against the law.
"The ACLU of Arizona will act on the court’s message and document racial profiling abuses throughout the state as the first step to guaranteeing equal treatment under the law,” Alessandra Soler, executive director of the American Civil Liberties Union of Arizona, said in a statement. “Latino members of our community should not be subjected to unlawful stops based on their race or perceived immigration status. Once this ‘show me your papers’ provision goes into effect, racial profiling will become rampant statewide, as it has been in Maricopa County, and we intend to ramp up our reporting and litigation efforts to seek justice on behalf of the victims of police abuse.”
Whenever the key stop-check-and-possibly-hold provision takes effect, there could be concerted protests from Latinos in Arizona and perhaps elsewhere. If that date is before the November election, it could impact Hispanic voter turnout not just in Arizona but across the country.