Effort to block 'papers please' leaves US judge unconvinced

2012-08-22T00:00:00Z2012-08-22T10:53:21Z
Howard Fischer Capitol Media ServicesArizona Daily Star

11 hours ago • Howard Fischer Capitol Media Services

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SB 1070 timeline of events


PHOENIX - A federal judge on Tuesday questioned a bid by a civil-rights lawyer who wants a new order blocking the state from enforcing the most controversial provision of SB 1070.

Karen Tumlin of the National Immigration Law Center told Judge Susan Bolton that the section opponents refer to as the "papers please" provision, requiring police to question people they've stopped about their immigration status if there is reason to believe they are in the country illegally, is inherently illegal.

Tumlin said lawmakers had racial motivations in approving the law, and it will have a disparate impact on Hispanics.

But Bolton pointed out the U.S. Supreme Court ruled just two months ago she was incorrect in her initial order blocking the provision even before it was allowed to take effect.

Bolton said what Tumlin and other groups want is the same kind of pre-enactment injunction the high court rejected. The section remains on hold, as Bolton has yet to dissolve her original injunction in the wake of the Supreme Court ruling rejecting arguments by the Obama administration that the provision was in conflict with federal law.

At some point Bolton will be forced to carry out the Supreme Court's mandate and say that section of SB 1070 cannot be blocked based on arguments of federal pre-emption. Tumlin on Tuesday sought to convince Bolton that this case is different.

She said an injunction is necessary because people being questioned by police about their immigration status will be detained beyond the time necessary to deal with the reason they came into contact with the police in the first place. Tumlin said that is inherently illegal.

She noted the issue of the length of traffic stops was never addressed by the high court.

Tumlin also argued that Arizona lawmakers knew that SB 1070 would have a greater impact on Hispanics than other groups, contending there were racial motivations behind the legislation.

As proof, she cited statements and emails from some legislators, including former state Senate President Russell Pearce, a Mesa Republican and sponsor of the bill, which Tumlin said show the law was enacted to "target and single out a particular national and ethnic group."

Bolton said even if she accepts that some lawmakers were racially motivated, that may not matter.

"How many people does it have to be?" she asked Tumlin, pointing out that SB 1070 was approved by the majority of the House and Senate and signed by Gov. Jan Brewer. "There's clearly no evidence these majorities had a discriminatory intent."

John Bouma, representing the state, said all the talk about whether Hispanics are disproportionately affected by the law misses a key point: The law is aimed at those who cross the border illegally.

"Those are the people who cross it most," he told Bolton. "Who else is coming across the border like Hispanics?"

Bouma said the only test Bolton should consider is whether the law is applied to Hispanics disproportionately, as compared to others who are here illegally.

Bolton also noted there is no reason to assume police officers will enforce the law in an illegal or discriminatory fashion.

Bolton, who did not indicate when she would rule on the request, also heard arguments on another section of SB 1070 that makes it a separate state crime for someone to transport, harbor, conceal or shield an illegal immigrant, or encourage or induce an illegal immigrant to come to or live in Arizona.

Two years ago Bolton rejected a bid by the Obama administration to enjoin that provision, too, saying the law "does not attempt to regulate who should or should not be admitted into the United States."

But on Monday the 11th U.S. Circuit Court of Appeals upheld an injunction against a nearly identical Georgia law. Bolton said while that new ruling is not binding on her - Arizona is in the 9th Circuit - she called it "respectable."

Bouma said foes of SB 1070 need to demonstrate "irreparable harm" if the law would be allowed to take effect.

And Bolton pointed out to Tumlin that the provision on transporting and harboring illegal immigrants has technically been in force for more than two years.

"We don't know of any instance … where anybody has been arrested, let alone charged, under that statute," the judge said.

On StarNet: Follow a timeline of events in the battle over Arizona's controversial immigration bill at timeline.azstarnet.com/sb1070

Effort to block 'papers please' leaves US judge unconvinced