Martin Chavez, left, screams at Manuel Martinez during rallies for and against SB 1070 at the state Capitol. Chavez supports the law giving police more power to detain and arrest illegal immigrants. (Capitol Media Services file photo by Howard Fischer)

Howard Fischer/Capitol Media Services

A federal judge on Wednesday virtually cleared the way for Arizona to require police to question suspected illegal immigrants.

In a 12-page ruling, U.S. District Court Judge Susan Bolton rejected pleas by various civil rights groups for a new injunction to bar enforcement of what has been dubbed the "papers please'' provision of Arizona's SB 1070. That section spells out that if police have stopped someone for any reason, they must inquire about their immigration status if there is reason to believe they are in this country illegally.

Challengers argued there was no way to enforce Subsection 2(b) without engaging in racial profiling.

Bolton, however, said there is no evidence of that, at least not now, pointing out that the provision has never gone into effect. That is the result of an injunction Bolton issued two years ago in a challenge to the law brought by the Obama administration which argued the measure illegally conflicts with federal law.

In June, however, the U.S. Supreme Court said Bolton was wrong to reach such a conclusion, at least before seeing how Arizona actually would enforce the law. That resulted in this new request for an injunction, this one based on complaints of racial bias.

But Bolton said this new challenge has the same flaws as the one the high court rejected.

"This court will not ignore the clear direction in the (earlier) opinion that Subsection 2(b) cannot be challenged further on its face before the law takes effect,'' Bolton wrote. She said lawsuits contesting the legality of the provision are appropriate only after the law takes effect.

Gov. Jan Brewer, who signed the 2010 law, said Wednesday's ruling does not mean police will start questioning people today. The governor said she believes it could take a few weeks for the formal order allowing implementation of the section to be enforced.

The ruling was not a total setback for foes of SB 1070.

Bolton did agree to bar Arizona from enforcing another section of the law which makes it a crime to transport, conceal, harbor or shield an illegal immigrant from detection. She said that provision conflicts with federal law.

Despite that, Brewer declared the decision a major victory for Arizona. She said it preserves "the heart of SB 1070.''

Brewer acknowledged the legal victory is limited to the specific question before the judge: Is there evidence that the law can be enforced only in a discriminatory manner. That leaves open the possibility -- one the U.S. Supreme Court itself suggested in June -- that there will be future challenges if there are claims of racial profiling.

The governor said she is fully aware of that possibility.

"As I've always said, SB 1070 must be enforced fairly, effectively and without compromising civil rights or the Constitution,'' she said.

"I know the world is watching,'' Brewer continued. "But I know that our state and local officers are up to the task.''

Wednesday's ruling drew criticism from Dan Pochoda of the American Civil Liberties Union, one of the groups involved with the new challenge. He said that Bolton wrongfully focused on the lack of evidence of current harm while ignoring the fact that SB 1070 itself is racially motivated.

During a court hearing last month, foes argued there were racial motivations behind the legislation. As proof they presented statements and e-mails from legislators, including former state Sen. President Russell Pearce, R-Mesa, the sponsor of the legislation, which they said showed the legislation was specifically designed to target Hispanics.

"We believe that we demonstrated that it was a discriminatory intent that motivated, at least in part, the Legislature in passing 1070,'' Pochoda said. He said that is enough to get an injunction, even absent any evidence anyone actually was the victim of discrimination.

"That should have been discussed and considered,'' Pochoda said.

But Bolton, during that hearing, telegraphed that she wasn't buying that argument.

The judge said even if some legislators did have racial motives, the legislation had to be approved by a majority of the House and Senate and signed by Brewer. Bolton said there was "clearly no evidence'' that the majority of everyone who voted for the bill "had a discriminatory intent.''

"I think it was the wrong decision,'' added attorney Linton Joaquin of the National Immigration Law Center, another group challenging the law.

He acknowledged that the Supreme Court in June rejected the idea of barring enforcement of Section 2(b) before it even took effect.

But Joaquin said that case focused only on arguments by the Obama administration that SB 1070 was preempted by federal law. He said this case was focused on the likelihood of racial profiling.

Joaquin said one option is to ask the 9th U.S. Circuit Court of Appeals for the injunction that Bolton refused to provide. Another is to let the law take effect and wait for a clear case of racial profiling.

That will result in yet another round of legal fights, likely making its way again to the Supreme Court. But the justices are clearly anticipating seeing the issue again.

In his ruling earlier this year upholding Section 2(b) on its face, Justice Anthony Kennedy, writing for the high court fired a warning shot across the bow of police agencies, Kennedy said he and his colleagues might reach a different conclusion if there is evidence that people are being unfairly stopped or detained for long periods of time.

The key, Kennedy said, is how Arizona implements SB 1070.

While Section 2(b) will be allowed to take effect, at least for the time being, Bolton felt different about the provision making it a state crime to harbor and transport illegal immigrants. She said that is an area where Arizona may not intrude, pointing out these activities are a federal crime.

"Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted,'' Bolton wrote. She said it is "immaterial'' that this provision of SB 1070 has the same goals as federal immigration law.

With that ruling, there now are four sections of SB 1070 that have been blocked. While the Supreme Court in June overruled Bolton on Section 2(b) it did ratify her ruling against three other sections which would have given state and local police the power to charge illegal immigrants with violating state laws for:

- Seeking work in Arizona without being in this country legally;

- Failing to carry federally issued registration cards;

- Allowing warrantless arrests if there is "probable cause'' a person committed an offense that makes them removable from the country under federal law.

(1) comment


Honest people who stand for the voting rights of every American citizen are charged to be vigilant of illegal activity in each election precinct. Completely covered up by the majority of editorial staff in the national press, ‘Voter Fraud’ is happening and this can spotlighted by reading reports, articles on the Internet. Without being pretentious “Voter Fraud’ has been highlighted in such states as Florida, Colorado, Arkansas and now North Dakota, with many other states under scrutiny. Non citizens voting can be a major contention around the country and can be a serious issue in close races. Canvassing to register citizen voters has caused a major uproar, when organizations such as ACORN have signed up hundreds of thousands of individuals not qualified to vote. The Democrats are especially prevalent in ignoring election laws and have as usual evoked the race card, the poor and even saying this was Suppression of people voting. However the truth be known that these special classification of people, can qualify for a free picture ID card, which is not mentioned by the Socialist indoctrination. Must remember we are feeding, housing and giving free healthcare to anybody who steals into the country, which UNFAIR AND WRONG to taxpayers. Plus under President Obama not just illegal aliens but the “freeloaders” will be collecting all the benefits, but paying nothing into the pool. To me this is sheer bribery for votes whether illegal or legal.

The TEA PARTY people will be out in force to insure that the election laws we do have are fully enforced. Even so without safeguards the absentee ballot is easily compromised. In blue states the laws are so lax, that it’s inevitable there will be a paramount move to overlook non citizens voting. I am an Independent, who originally was in the Democratic fold. In November I am not voting for Obama, but not particularly happy with Romney either. I joined the Constitutional TEA PARTY, as they are for the self reliance, free fair commercial enterprise, reduction of government to the limits as written by our forefathers. Resume drilling for oil, natural gas and reopening the coal mines, with emphasis on not only clean coal production, but further research into new energy sources.

It’s like a rolling nausea as Millions of more illegal immigrants are going to be encouraged to slip past the border or step off an international jet, if President Obama returns to the White house in November. YOU--THE VOTERS HAVE TO DECIDE IF WE CAN AFFORD PAMPERING NOT ONLY THE 20 MILLION PLUS ILLEGAL ALIENS, ALREADY HERE OR THOSE WHO WILL ARRIVE WHEN SIGNALED THE FREE WELFARE UNDER OBAMA. It’s not so much the illegal alien invaders that is the problem, it’s the fact we have to pay for them through state forced unfunded mandates of the court. The biggest issue is the majority Democratic states with poorly supervised election stations, will turn a blind eye to non citizens voting. I am not going to tell you about the terrible consequences of the democrats passing another mass amnesty, even after we were promised that no blanket amnesty would ever be enacted again. But neither do I trust the Republicans to carry out the full pledge of the issues involved. Only the rapid absorption of the TEA PARTY LEADERSHIP into GOP does the chance of America resurfacing under the weight of this depressed economy and jobs.

It’s certainly obvious to any prudent person, that the only reason organization such as the Communist founded ACLU, doesn’t want the right of law enforcement officers to check on a person’s immigration status, and is that Arizona being a frontier state is flooded with illegal alien migrants. What is strange that wherever you drive or wander that if you are in violation of the law, the police are going to ask for identification proof anyway? I think that with this law in effect, hundreds of thousands of illegal entrants are going to be packing up their belongings and heading for Liberal-Socialist states as California, Nevada where the laws are certainly unenforced and police by city mandates cannot question suspicious persons.

Legislators of both parties need to get off duffs; start issuing permit to drill for domestic oil, natural gas and reopen the coal mines that Obama’s czars have closed. President Obama is deep in the pockets of radical environmentalist, who are cutting us of regular fuels. You have seen the $4.00 rise of gas at the pumps, when 4 years ago it was just a $1.49. Shrink the mammoth burdensome U.S. government; closing many and merging agencies. Start from scratch a fair and equitable tax code; no more immunity for corporations and friends of politicians. Stop Obama from giving more power to the United Nations and international courts. Realize that America is heading towards insolvency, if we don’t get welfare programs under control, especially the (113 Billion annually and climbing) one hundred thirteen billion dollars going to subsidize illegal foreigners. Stop the spending and redistribution of welfare to illegal aliens, such as food stamps.

The TEA PARTY will let free trade succeed, but will sanction countries as China who are manipulating their coinage and cheating us. Resist Obama’s plan of Obamacare and free programs that allow the freeloaders to live as parasites of their host, the taxpayer. We cannot trust the Democrats who remain deliberately unconcerned with non-citizens voting. Both parties refuse to enact mandatory E-Verify (H.R. 2885), to expel illegal aliens from businesses, and a Birthright Citizenship law (H.R. 140), that allows a projected 400.000 babies a year who gain citizenship, without a parent holding U.S. citizenship status. ONLY BY REPLACING THE SENATE AND HOUSE INCUMBENTS WITH HONEST, SINCERE AND ABOVE ALL ELSE TEA PARTY LEADERSHIP WITH BACKBONE, SUCH AS TED CRUZ OF TEXAS, RICHARD MOURDOCK OF INDIANA.



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