Attorneys for Arizona have asked a federal judge to reject a new bid to block a key provision of SB 1070 from taking effect.
In legal papers filed late Friday in U.S. District Court, lawyers for the state said claims by foes of the law that it will necessarily result in racial profiling are "entirely speculative.'' And John Bouma, the lead attorney for Arizona, pointed out that the statute itself "expressly prohibits racial profiling.''
It will be up to Judge Susan Bolton to decide whether what foes have dubbed the "papers please'' provision of the 2010 law aimed at illegal immigrants can take effect.
She is under a deadline of sorts.
The U.S. Supreme Court ruled in June that Bolton acted improperly in granting an injunction in 2010 against the same provision even before the law took effect. And earlier this week the 9th U.S. Circuit Court of Appeals, which had previously sided with Bolton, sent her an order formally informing her of the high court's ruling.
But that injunction remains in place until Bolton acts. In the interim, opponents are hoping to get a new bar to the law.
Central to the fight is Section 2(B) of that law which says that police officers are required to check the immigration status of those they have stopped if there is reason to believe they are in this country legally. Bolton, ruling in a challenge brought by the Obama administration, said that provision illegally infringes on the exclusive right of the federal government to regulate immigration.
The Supreme Court disagreed with her on that point. But they did agree that she was correct in blocking three other provisions as preempted, including one that would make it a state crime for someone not in this country legally to seek work in Arizona.
In this separate legal action, opponents noted that the justices, in upholding Section 2(B), never addressed whether questioning people about their status would automatically violate the rights, at least in part because of the length of time they would be detained.
The challengers, including the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund, contend 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.' ''
Bouma countered that Gov. Jan Brewer specifically directed the Arizona Peace Officers Standards and Training Board to prepare materials to help officers enforce the law in a racially neutral way. And Bouma said police departments already are doing in a voluntary fashion what SB 1070 would make mandatory -- and doing it "in a racially neutral way.''
He cited statements by Pima County Sheriff Clarence Dupnik who said that the Supreme Court's decision allowing enforcement of Section 2(B) "will have no bearing on how his deputies go about their patrols'' because "the department already enforces federal immigration law by referring people it suspects are here illegally to the Border Patrol.''
Bouma also took a slap at Tucson Police Chief Roberto Villasenor.
The chief, in an affidavit provided to challengers, said that if his officers cannot get immediate answers about the immigration status of those they have stopped, people either will be detained for extended periods or booked into jail to await results. "Either scenario will result in extended detention of thousands of individuals -- even if it is for brief periods of time,'' Villasenor wrote.
Bouma pointed out Tucson Police have a standing order prohibiting racial profiling. Yet those rules also tell officers what to do if they suspect someone they have stopped is illegally in the country.
"It defies logic to suggest that Tucson law enforcement officers can develop reasonable suspicion of unlawful presence without Section 2(B), but could not develop such reasonable suspicion of unlawful presence if Section 2(B) is enforced,'' Bouma wrote. "Villasenor's declaration is therefore patently self-serving, speculative and unreliable.''
Bouma also brushed aside claims in the request for the injunction that "racial and national origin discrimination was the motivating factor for the law.''
One of the arguments presented was that Arizonans voted in 2006 to make English the state's official language. Challengers said actions targeting Spanish "can be a pretext for discrimination due to the close connection between the Spanish language and a specific ethnic community.''
Bouma said there is "absolutely no evidence'' to support the claim that the more than 1.1 million people who voted for that amendment did so for discriminatory purposes. Anyway, he noted, Arizona is one of 31 states to adopt English as its official language.
On a narrower legal perspective, Bouma said that anyone seeking an injunction must show "irreparable harm'' if the relief is not granted. He said the mere risk that someone will be unlawfully detained is not enough.
Challengers now have until Aug. 20 to reply to what Bouma filed. At that point it will be up to Bolton to decide if she wants both sides to make arguments in person in her courtroom.
Gubernatorial press aide Matthew Benson said his boss believes that, with the earlier Supreme Court ruling, SB 1070 should be allowed to take effect.
"Gov. Brewer has full faith and confidence that Arizona's law enforcement can implement SB 1070 without stepping on anybody's civil rights or engaging in racial profiling,'' he said.