Arizona goes back to court this coming week over SB 1070, this time to defend a provision aimed at day laborers.
Attorneys for the state contend the provision in the 2010 law designed to combat illegal immigration which makes it a crime for someone to enter a car stopped on the street to go to work elsewhere, is simply a way of controlling traffic. And that, they said, is a legitimate goal of the state.
That same law also criminalizes driver who stop to pick up laborers.
But they have to convince the 9th U.S. Circuit Court of Appeals that a trial judge was wrong earlier this year when she barred the state from enforcing the provision.
Judge Susan Bolton said the real purpose behind the provision is not traffic control but to
attack the practice of day laborers to hang around home improvement stores and await offers. And being a day laborer, she said, is not a crime.
The state's attorneys could have a hard time convincing the appellate judges Bolton was wrong. That's because she based her injunction on an earlier 9th Circuit ruling which invalidated similar existing ordinances in both Phoenix and Redondo Beach, Calif.
In their appeal, attorneys for the state argue that Arizona has "a substantial interest in the safety of its streets and reducing the crime, intimidation, and property destruction that results when large groups of day laborers congregate.'' And they point out that the law kicks in only when traffic is impeded.
In her March ruling, Bolton said those are legitimate governmental interests.
But she noted the restriction appears to be less about traffic and more about day laborers, as it applies only to those who are looking for work.
Anyway, Bolton said the state has other ways of dealing with those who tie up traffic.
For example, she wrote, motorists who stop or park a car in a way that impedes traffic already are subject to fines. And the same is true if an opened door on a car or truck interferes with traffic.
But Rep. John Kavanagh, R-Fountain Hills, one of the architects of that provision, said those laws are inadequate to deal with this kind of situation because they require police to prove that someone intentionally blocked traffic.
"These offenses were designed for people either because they're crazy or they want to annoy people or they're demonstrating, actually go out and stop the flow of traffic,'' he said. That's not the case here.
"What you're doing is you're intentionally talking to someone in a car, which inadvertently or negligently or recklessly blocks traffic,'' he said.
Cecillia Wang, director of the Immigrants' Rights Project at the American Civil Liberties Union, said the very wording of the law undermines the arguments by the state that this is simply a law dealing with traffic problems.
"If they wanted to address a large number of people running out into the street, they should have written a law that says you can't run out into the street,'' she said.
"Instead what they did is wrote a law that says you can't run out into the street in order to signal your availability to work,'' Wang explained. "The First Amendment is clear that legislatures can't target specific expression based on the content.''
And Wang said the discriminatory intent of the law is highlighted by what is not criminalized.
"If someone wants to run out in the street holding up a billboard that says 'Vote for Romney,' that's not a crime,'' she said. "But if they run out in the street holding up a sign that says 'Looking for work,' then that is.''
One other potential legal hurdle for the state is the breadth of the law.
Kavanagh said the measure is crafted in a way to let police arrest people even for just standing on the sidewalk looking for work, something not addressed in current laws.
"You have large numbers of people standing on the corner, maybe holding signs or yelling things out.
"People driving by slow down and look at them and they start to try to pull over,'' Kavanagh continued. "That obstructs the flow of traffic, too.''
That argument, though, is likely to meet with little support from the appellate judges.
In its earlier ruling overturning the similar Phoenix and Redondo Beach ordinances, the court looked at the breadth of their effects. And Judge Milan Smith Jr., who wrote that ruling, said the problem with these restrictions is they impose greater restrictions on First Amendment rights than necessary.
"The ordinance technically applies to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school,'' the judge wrote. Or to, "a motorist who stops, on a residential street, to inquire whether a neighbor's teen-age daughter or son would be interested in performing yard work or baby sitting.''