Major SB 1070 challenges being heard today

by Alia Beard Rau and Kevin Kiley -
July 22, 2010 11:10 AM
The Arizona Republic

Two of the highest-profile challenges to Arizona's new immigration law are getting their first hearings in federal court today.

U.S. District Judge Susan Bolton this morning began the court hearing on four requests in the lawsuit filed by the American Civil Liberties Union and several other civil-rights groups and individuals. Three requests from defendants seek to have the suit thrown out; one from the plaintiffs asks the judge for a preliminary injunction, blocking the law from taking effect.


This afternoon, Bolton will consider a request in a lawsuit filed by the U.S. Department of Justice, which also asks her to block the law.

By 9:30 a.m., the courtroom already was packed, with security tight. Outside the court building, an estimated 150 people had gathered, including about 30 supporters the SB 1070 legislation that was signed by Gov. Jan Brewer on April 23.

The crowd was monitored by about two dozen police officers. Across the street from the downtown Phoenix court building, a protester of the law sported a giant mask lampooning Sheriff Joe Arpaio and an oversized pair of binoculars.

One of the SB 1070 supporters, Martha Payan of Scottsdale, said, "We may be outnumbered but this is our country and we're going to be out here to fight."

She believes that undocumented immigrants are gaming the system for government benefits. "They're fleecing America and that's why they're able to be out here in droves," Payan said.

Opponents, including Aaron Rivera of California, said, "There's a lot of folks who want to be heard. I just hope we keep this focused on immigration."

The scene -- civil and calm save for a couple of heated exchanges -- was not much unlike last Thursday, when Bolton held a similar hearing in a lawsuit filed by Phoenix Police Officer David Salgado. She has not yet issued any rulings on those motions.

Arizona's immigration law makes it a state crime to be in the country illegally. It states that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.

Seven federal lawsuits are challenging the law, all alleging that it preempts federal law.

Bolton may issue a ruling from the bench today or take the arguments under advisement. It is unknown whether she would issue separate rulings for each case or a single ruling covering all the motions she will have heard in three cases.

What she decides could determine whether the law will be enforced. It is scheduled to take effect next Thursday.

Gov. Jan Brewer said Thursday morning that she would attend the afternoon court proceedings on the Department of Justice suit, adding that she was hopeful there would be a "favorable" outcome for the state.

Brewer's attorneys already have filed a brief that said that any injunction would do the state irreparable harm because of the federal government's failure to properly secure the border.

"I am very anxious to see the presentation from the federal government," Brewer said. "I am even more eager to see the presentation (on behalf) of the state of Arizona, and I hope this plays out favorably for the citizens of Arizona.

"I believe that we have a very, very strong case, and that we are standing up for the rule of law."

Brewer is expected to make a statement at the close of the afternoon session.

The ACLU lawsuit is the largest challenging Senate Bill 1070 in terms of number of plaintiffs and defendants. It names officials from all Arizona's 15 counties as defendants and has 24 plaintiffs.

Fourteen of the plaintiffs are organizations and include the Service Employees International Union and the Scottsdale-based Arizona South Asians for Safe Families, which serves victims of domestic violence.

Ten plaintiffs are individuals. They include illegal immigrants; citizens who fear being stopped because of their race; religious and non-profit volunteers who worry about their interaction with illegal immigrants; and residents of New Mexico concerned that their driver's license may not be enough to prove citizenship because New Mexico does not require proof of legal status to get one.

The plaintiffs allege that SB 1070 interferes with federal authority, will lead to widespread racial profiling and will subject minorities, including U.S. citizens, to unlawful interrogations, searches, seizures and arrests.

Three motions to dismiss have been filed in this case: One by Pinal County Attorney James Walsh and Pinal County Sheriff Paul Babeu; one by Maricopa County Sheriff Joe Arpaio; and one by Gov. Jan Brewer. All three argue that the plaintiffs have not shown that they face imminent harm from the enactment of SB 1070.

The motion states that it's "premature and speculative" to guess how officers will implement the law and how, if at all, that enforcement may harm the plaintiffs.

However, the plaintiffs want the judge to stop the law from taking effect. They say that they will be harmed by the implementation of the law because they will be subject to discrimination based on their race, infringement of their right to travel and infringement of their freedom of speech.

Annie Lai, an ACLU of Arizona attorney, said her clients have a right to sue.

"In the eyes of the court, the pastor from Mesa and the Spanish-speaking day laborer have as much of a right to be heard as the politician or law-enforcement official," she said. "(Today), Arizonans will see our constitutional system at work."

Rose Law Group represents Cochise County Sheriff Larry Dever in the lawsuit. Attorney Brian Bergin said he wants to make sure Dever has a voice as one of the county sheriffs who support SB 1070.

"I think what Sheriff Dever would say is that really this is an effort by the ACLU to impede law-enforcement officers' ability to deal with this very serious problem," Bergin said.

The U.S. Department of Justice lawsuit is the most high-profile of the seven in terms of national attention and legal standing. While the other cases argue on behalf of the federal government that SB 1070 would pre-empt federal law, the Department of Justice case is the federal government speaking for itself.

The lawsuit claims the immigration law "will conflict and undermine the federal government's careful balance of immigration-enforcement priorities and objectives" and divert resources from the "dangerous aliens who the federal government targets as its top enforcement priority."

At today's hearing, Department of Justice attorneys from Washington, D.C., will ask for a preliminary injunction.

SB 1070 author Sen. Russell Pearce, R-Mesa, has filed a memorandum opposing the motion, saying that the state law does not pre-empt federal law.

"As I've said all along, SB 1070 makes no new immigration law, it simply enforces the laws already on the books," Pearce said in a statement. "Barack Obama has put politics before the safety of citizens of Arizona who are under the gun from the illegal-alien crisis in our state. I hope the court does not allow the Obama administration to run roughshod over the rule of law."

Attorney Stephen Montoya, who represents Salgado, filed a motion asking Bolton to consolidate the Salgado and Department of Justice cases.

The motion says the two cases assert identical claims, at least in terms of the pre-emption argument, and consolidation would avoid duplication and reduce legal costs.

Bolton has not yet ruled on that motion. On Tuesday, she denied a motion filed by the First Amendment Coalition of Arizona seeking to allow cameras in the courtroom to cover Thursday's hearing on the ACLU case.

Republic reporter Ginger Rough contributed to the report.

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