Civil and immigrant rights groups asked a federal judge late Tuesday to block SB 1070 from taking effect despite a U.S. Supreme Court ruling last month siding with the state.
The legal papers claim that what has been dubbed by foes the "papers please'' provision of the 2010 law cannot be implemented without discriminating against minorities. That part of the law requires police to check the immigration status of those they have stopped if there is reason to believe they are in the country illegally.
Just last month the nation's high court gave the go-ahead for Arizona to begin enforcing that section of the law. That effectively overturned the injunction U.S. District Court Judge Susan Bolton issued two years ago barring enforcement; Bolton is expected to formally dissolve her order by the end of the month.
But the lawyers from groups including the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund, are reminding Bolton that the only issue in that separate lawsuit brought by the Obama administration was whether SB 1070 illegally infringed on the exclusive right of the federal government to regulate immigration. The court concluded that the law, on its face, does not.
What was not addressed, they said, were separate arguments that just the practice of questioning people about their status would automatically violate their rights because of the length of time they would be detained.
In asking Bolton to once again block the law -- even before a trial on its merits -- the challengers say there is "ample evidence'' of irreparable harm to Hispanics and others who would be "at risk of unlawful detention and interrogation based on little more than an officer's 'reasonable suspicion' that they are 'unlawfully present in the United States.' ''
As proof, the challengers cited a declaration by Tucson Police Chief Roberto Villasenor who said his agency issues about 36,000 citations a year instead of actually making arrests.
"Under (the law) if we cannot get immediate confirmation from federal officials of the immigration status of these suspects, we will have to extend their detentions in the field until we get a status determination from federal officials, or book them into jail to await these results,'' Villasenor said. "Either scenario will result in extended detention of thousands of individuals -- even if it is for brief periods of time.''
On the other side of the issue, the lawyers argued that Cochise County Sheriff Larry Dever has said he will use the provision in ways that conflict with federal authority.
Dever conceded as much to Capitol Media Services.
He acknowledged the Obama administration has decided that, as a matter of priorities, it does not intend to pursue or deport certain people even though they are here illegally. That most recently includes those who came to this country as children.
But Dever said they are here illegally and that his deputies, on finding those in this country without documents, will take them into custody. And he said if immigration officers won't come pick them up, he will have them dropped off at the local Border Patrol office -- even if they end up being released there after having been detained.
The sheriff was unapologetic for that stance.
"I'm interested in the safety and welfare of the citizens of Cochise County,'' he said. "I really could give a damn what their policy is.''
And if people are detained by deputies only to be released, Dever responded, "So?''
Matt Benson, press aide to Gov. Jan Brewer, said the move is not a surprise.
"Opponents of SB 1070 have indicated they?ll go to any length in order to block Arizona?s implementation of this law,'' he said, pointing out the prior Supreme Court ruling.
But ACLU attorney Dan Pochoda noted that the high court, in its ruling in the other case, did not specifically say that the section on questioning those who are stopped is legal. In fact, Justice Anthony Kennedy, who wrote the ruling, said only that "it is not clear at this stage and on this record that the verification process would result in prolonged detention.''
Benson said, though, his boss believes SB 1070 can be enforced "fairly, lawfully and in harmony with civil rights and the Constitution,'' saying the new allegations amount to "fear-mongering and outrageous allegations.''
Beyond the issue of detention, the legal papers claim that the provision is inherently discriminatory. They claim statements by bill author Russell Pearce, then a senator, "demonstrate that racial and national origin discrimination was the motivating factor'' for the law -- and specifically the provision about questioning those who have been stopped.
The request for an injunction also points to the practices of the Maricopa County Sheriff's Department which has previously conducted "crime suppression sweeps'' in various neighborhoods which result in the arrest of many Hispanics. The attorneys said that by itself is proof that there already is discrimination which would only be enhanced if police can detain people while their immigration status is checked.