Foes of Arizona's tough new immigration law will get their first chance Thursday to try to block its enforcement.
U.S. District Court Judge Susan Bolton will hear arguments by attorneys for David Salgado. He wants Bolton to put the law on hold, at least temporarily, while she considers its legality.
He said his rights are violated by a requirement in SB 1070 that he ask those he has stopped about their immigration status when there is "reasonable suspicion" they are in this country illegally.
Potentially more significant, Salgado said another section of the law puts him at risk of being sued if he doesn't enforce the law "to the fullest extent permitted by federal immigration law." And Salgado said that he does not intend to question those he has stopped because he believes he does not have the legal authority to do that, the provisions of SB 1070 notwithstanding.
Thursday's hearing comes a week before Bolton hears two other requests to keep the law from taking effect as scheduled on July 22.
One of those was filed by attorneys representing three civil rights groups; the other comes from the U.S. Department of Justice.
On Wednesday, though, two Republican U.S. senators sought to undermine that second action.
Sens. Jim DeMint of South Carolina and David Vitter of Louisiana have crafted language to bar the Obama administration from participating in any lawsuits seeking to invalidate the Arizona law. DeMint, in a press release, said the proposal will be offered as early as next week as part of the Senate debate on small business.
"States like Arizona shouldn't be prosecuted for protecting their citizens when the federal government fails to do so," DeMint said in a prepared statement. Vitter said the Obama administration "should not use taxpayers' money to pay for these lawsuits that the American people overwhelmingly oppose."
The Department of Justice challenge is based on the argument that SB 1070 impermissibly interferes with the exclusive right of the federal government to regulate immigration.
Salgado's legal objections, however, are much more focused on how they will affect him personally.
One provision of the law requires officers who have stopped someone for any other reason to ask about their immigration status if there is "reasonable suspicion" they are in this country illegally.
His lawyers say that only police with specialized federal training, known as 287(g), can enforce federal immigration law, training Salgado does not have. But they said the Phoenix Police Department is preparing to enforce SB 1070 anyway.
That, the lawyers said, creates a dilemma for Salgado.
"If he refuses to enforce the act, he can be disciplined by his employer or subjected to costly private enforcement actions under the act," the lawsuit says. "Conversely, if he enforces the act, he can be subjected to costly civil actions alleging the deprivation of civil rights of the individual against whom he enforces the act."
Attorneys for Gov. Jan Brewer are urging Bolton to reject Salgado's claim. They say nothing in SB 1070 conflicts with federal immigration laws.
More to the specific points he raises, they said simply inquiring of individuals about their immigration status can violate someone's rights. They pointed out that SB 1070 requires that someone have been stopped, detained or arrested for some other reason before that inquiry can take place.
The governor's attorneys also said that Salgado's pleadings fail to show that he will suffer "irreparable harm" if the law is allowed to take effect. That is one of the things a judge must find before an injunction can be issued.
They also said the provision allowing individual lawsuits applies only when an agency has a policy of not enforcing federal law and does not apply to decisions of individual officers.