A federal judge has set the stage for a new challenge to Arizona’s immigration law if the U.S. Supreme Court rejects the one it has before it now.
In a 20-page ruling, U.S. District Court Judge Susan Bolton said that various Arizona residents have legal standing to challenge the 2010 statute. In each case, the judge said they made a showing that they could be personally affected — and adversely — if the state begins enforcing the law.
Bolton also rebuffed a bid by attorneys for Gov. Jan Brewer to preclude these challengers from seeking class-action status to represent all those who might be victims of discrimination under the terms of SB 1070. The judge will hear arguments on that this coming week.
The ruling, issued Tuesday, comes as the nation’s high court is weighing arguments by the Obama administration that four key provisions of the state statute are preempted by federal law. Bolton had agreed with their arguments nearly two years ago when she blocked Arizona from implementing those sections, a decision upheld by the 9th U.S. Circuit Court of Appeals.
If the Obama administration wins, the provisions go away and that’s the end of the matter.
But if the justices let some sections take effect — and there were indications at last month’s hearing they might — then this case becomes one of the new battlegrounds over the legality of SB 1070.
Attorney Dan Pochoda of the American Civil Liberties Union, whose organization is representing some of the challengers, said Bolton’s new ruling provides an entirely new opportunity to present a whole new set of arguments about why SB 1070 is unconstitutional. He said arguments range from the likelihood of racial profiling to whether the time spent questioning someone about legal status amounts to an illegal arrest.
This order does not address the merits of those claims.
Instead, it comes on a request by attorneys for the governor that she declare the individuals who have filed suit lack standing to challenge the law in the first place. The ruling allows them to make those claims.
While the lawsuit is being brought by various organizations like Friendly House and Coalicion de Derechos Hermanos, it specifically names individuals as plaintiffs as they would be the ones most immediately affected by SB 1070. These individuals said they fear they will be targeted because of their physical characteristics or their limited ability to speak English.
Brewer’s attorneys called that “speculative.” But Bolton disagreed, saying the very nature of the provisions of SB 1070 make it clear that those factors are likely to make them targets.
For example, one provision requires law enforcement officers to check the immigration status of all they have stopped if there is a reasonable suspicion they are in this country legally. She said because that section applies every time someone is stopped, the plaintiffs are likely to be subject to allegedly unconstitutional immigration investigations “even if they are stopped only for suspicion of a minor traffic violation and even if they have not actually committed a crime.”
Bolton also said the argument that the chances of someone who isn’t breaking the law being stopped is undermined by claims — and that is all they are at this point — by several of the individuals who said they have been approached or stopped by police in the past “while engaging in regular daily activities, including driving a car and riding a bicycle on a roadway, and that in some cases this contact with law enforcement resulted without any violation of the law.”
The judge also noted there are other sections of the law which are aimed at day laborers, including making it a crime to enter a vehicle stopped in the street to work elsewhere and another which says it is illegal for someone not in this country legally to seek work in Arizona. One of the challengers, who said he is a legal U.S. resident, said he has sought work on street corners in the past and would like to do that in the future “but that he is worried that he will be detained by police.”
“Soliciting work in a public place is conduct arguably affected with a constitutional interest,” Bolton wrote. The judge said because this person intends to continue soliciting work, there is a “credible threat” the law would be invoked against him, giving him standing to sue.
Gubernatorial press aide Matthew Benson said Brewer believes the claims should have been thrown out if for no other reason than the provisions of SB 1070 they are challenging have not yet taken effect, having been placed on hold by Bolton in that Obama administration case.
“So there’s no injury at this point,” he said.
“Obviously the federal judge disagreed and that’s unfortunate,” Benson continued. “But it doesn’t change the complexion of the issue.”
There are several other separate challenges to the law pending before Bolton, all at different stages in the legal process. Bolton has purposely proceeded slowly on each of them, waiting for a definitive ruling from the U.S. Supreme Court on the ability of states to enact restrictions aimed at illegal immigrants.