This morning, Judge Susan R. Bolton of the United States District Court for the District of Arizona preliminarily enjoined the four portions of Arizona Senate Bill 1070 (“S.B. 1070") that would have made it a crime for an unauthorized alien to solicit, apply for, or perform work; required police to determine the immigration status of anyone stopped, detained, or arrested in the State; made it a state crime to fail to apply for or carry alien registration papers; and authorized warrantless arrests of aliens believed to have committed offenses that make them removable from the United States. As a result, the majority of S.B. 1070 (but not these four provisions) will take effect at 12:01 a.m. on July 29, 2010. This Client Alert discusses both the provisions that will not take effect and those that will.
It is important to note that this is a preliminary decision and will only be in effect until the Court issues its final decision on a date to be determined. Lewis and Roca will continue to keep a close eye on these developments, and will keep you advised as appropriate.
Judge Bolton Enjoined the Four Most Controversial Portions of S.B. 1070
Judge Bolton based her decisions on her finding that she was obligated to enjoin (prevent from taking effect) only those parts of S.B. 1070 that were preempted by federal immigration law. Preemption occurs when federal immigration law either already exists in that particular area or conflicts with the proposed state law. In either case, federal law is supreme over preempted state law.
Section 2, A.R.S. § 11-1051(B) - The “Papers Please” Provision: This section was one of the most controversial aspects of the bill (commonly called the “papers please” provision) and would have required that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there was a reasonable suspicion that the person is unlawfully present in the United States. It also would have required that local police verify the immigration status of any person arrested before releasing that person.
Section 3, A.R.S. § 13-1509 - The “State Crime to be in Arizona” Provision: This section would have made it a state crime to not apply for or carry alien registration papers and would have made mere presence in the state illegal under Arizona law if the individual did not register with the federal government.
Section 5, A.R.S. § 13-2928(C) - The Prohibition on Applications for Employment by Unauthorized Workers: This section would have made it a crime for unauthorized aliens to solicit, apply for, or perform work in Arizona.
Section 6, A.R.S. § 13-3883(A)(5) - The Provision Authorizing Law Enforcement to Arrest for Violation of Federal Law: This section would have authorized the arrest of a person if a police officer had probable cause to believe that the person committed a public offense that made them removable (i.e., in violation of a federal immigration statute authorizing removal from the United States). Although Judge Bolton expressed uncertainty about what the effect of this provision would be, if any, she interpreted it to mean that law enforcement officials could target aliens for arrest for federal civil crimes. During the hearings, Judge Bolton questioned whether Arizona police departments, with no formal training in what makes someone “removable” under federal law, could make this complicated and difficult determination, which is normally a determination made by immigration judges. She echoed this concern in her opinion and found that the substantial complexity of the term “removable” made it likely that officers would wrongfully arrest legal resident aliens.
The Remaining Portions of S.B. 1070 Will Go Into Effect
Judge Bolton listed twelve specific provisions that will go into effect as scheduled at 12:01 a.m. on July 29, 2010. Many of these provisions are merely minor changes to existing Arizona law. However, the following sections of the bill that were not enjoined are worth noting:
Section 2, A.R.S. §§11-1051(A), (C)-(L): These portions of Section 2 that will take effect do three things: prohibit state and local agencies from limiting the enforcement of federal immigration laws; require cooperation between state and federal officials with regard to illegal aliens; and allow legal residents to sue state officials, agencies or subdivisions for limiting enforcement of federal immigration laws. Given that Judge Bolton enjoined much of the bill, including the provisions that provided local law enforcement the most power, it is not clear what effect these sections will have.
Section 4, A.R.S. 13-2319: This section amended the crime of human smuggling in Arizona to allow a police officer, in enforcing the crime of human smuggling, to stop any driver that the officer has reasonable suspicion to believe is violating a traffic law. As Judge Bolton found, this is only a minor change to an existing statute.
Section 5, A.R.S. § 13-2928(A)-(B) and A.R.S. § 13-2929: Judge Bolton did not enjoin the provision of S.B. 1070 that creates a crime for stopping a motor vehicle to pick up day laborers or for day laborers to get in a motor vehicle if it impedes traffic. Judge Bolton also did not enjoin the provision of S.B. 1070 that makes it illegal for a person who is in violation of a criminal offense to transport an alien, conceal or harbor an alien, or encourage an alien to come to Arizona.
Sections 7-9, A.R.S. §§23-212, 23-212.01, 23-214: Judge Bolton did not enjoin the sections of the bill that amended the crimes of knowingly employing unauthorized aliens and intentionally employing unauthorized aliens. These two amendments merely create an affirmative defense to these crimes if the employer is entrapped. Judge Bolton also did not enjoin the section that amended the requirements for checking employment eligibility and requiring employers to keep a record of the E-verify employment verification for the duration of the employee’s employment or for three years, whichever is longer.
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This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.