A part of Arizona's 2010 immigration law aimed at day laborers and those who hire them is unconstitutional and unenforceable, a federal appeals court ruled Monday.
The 9th U.S. Circuit Court of Appeals rejected the state's argument that its interest in ensuring traffic is not blocked gives it the right to make it a crime for someone to enter a car stopped on the street to go to work elsewhere. The same law also criminalizes drivers who stop to pick of laborers.
Appellate Judge Raymond Fisher, writing for the unanimous three-judge panel, said it would have been one thing if the state simply made it illegal to block traffic.
Instead, the provision of SB 1070 specifically -- and only -- target day laborers. And that, Fisher said, makes it an unconstitutional infringement on the First Amendment rights of the individuals.
Fisher also said that lawmakers, in adopting the 2010 legislation, made it clear that they were less interested in traffic safety than in discouraging illegal immigration. He noted the measure spells out that one goal is to make life so difficult for those not here legally that they leave the state.
And he pointed out that the penalty in SB 1070 is "far out of line'' with punishments for other similar traffic violations.
Fisher said, for example, that the law already on the books in 2010 said someone who recklessly impedes traffic can be jailed for up to 30 days. But a day laborer who merely impedes traffic can end up behind bars for six months.
"The imposition of a much harsher penalty for those who block traffic while engaging in labor solicitation speech evidences the desire to suppress such speech,'' he wrote.
Rep. John Kavanagh, R-Fountain Hills, who crafted the original language, said Monday he wants to appeal to the U.S. Supreme Court.
"I still believe that the current law that deals that deals with obstructing traffic doesn't deal with this type of activity and that we need a separate statute,'' he said.
But the last time the nation's high court reviewed provisions of SB 1070 it struck down three and upheld only the one which requires police to check the immigration status of those they have stopped when they have reason to believe the person is in this country illegally. And the justices said they would revisit that if there is evidence the law is being applied unfairly.
"We recognize that Arizona has a significant interest in protecting the safe and orderly flow of traffic on its streets,'' Fisher wrote. And he said soliciting work along roads may create dangerous traffic conditions.
But the judge said the state's concerns, by themselves, have to be "balanced against the burden on protected speech.''
In this case, Fisher wrote, the provision of SB 1070 is a "content-based restriction,'' singling out one kind of conduct for different treatment than the other.
"The day labor provisions target one type of speech -- day labor solicitation that impedes traffic -- but say nothing about other types of roadside solicitation and nonsolicitation speech,'' the judge said. And he said U.S. District Court Judge Susan Bolton, who last year blocked the state from enforcing the provision, properly concluded that its purpose was to suppress labor-solicitation speech rather than promotion traffic safety.
Then there is the fact that SB 1070 was pushed as a measure to deal with immigration.
Fisher pointed out the law says its intent is "to make attrition through enforcement the public policy of all state and local government agencies in Arizona.'' It also says that all the provisions of the law 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.''
"This clear and unambiguous express of purpose contradicts Arizona's argument that the day labor provisions are content-neutral traffic regulations,'' Fisher wrote for the court.
Kavanagh, however, said this was not originally part of SB 1070. Instead it had previously been approved by the Legislature as a separate bill only to be vetoed by then-Gov. Janet Napolitano. He said it was only added to SB 1070 after Napolitano quit to take a job in the Obama administration and Jan Brewer became governor.
But Fisher said Kavanagh's own comments belie his contention this was intended as a traffic measure.
He noted that Kavanagh, in describing the language, said while would promote traffic safety, it also would discourage the "shadow economy'' of day labor and address illegal immigration because a "large number of these people are illegal immigrants and this is the way they get work, and this work is one of the anchors that keep them in the country.''
Brewer said she had not seen the ruling.
But the governor, who signed the law in 2010, said it simply emphasizes that Arizona believes in "the rule of law.'' And she was not deterred by the fact that this court now -- and the Supreme Court which voided several other provisions of SB 1070 -- has concluded otherwise.