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.