The top prosecutors in the state's two largest counties are expecting new challenges to Arizona's identity theft law in the wake of a new ruling Monday by the U.S. Supreme Court.
But both Maricopa County Attorney Andrew Thomas and Barbara LaWall, his Pima County counterpart, said Monday they believe state law is sufficiently different than the federal statute that was challenged.
And both said they expect to be able to continue their prosecutions of illegal immigrants.
In a unanimous decision, the nation's high court threw out the conviction of Ignacio Flores-Figueroa, an illegal immigrant from Mexico who had given his employer his own name but identification with false Social Security and alien registration cards.
Justice Stephen Breyer said the federal statute imposes a mandatory two-year prison term on someone who "knowingly ... uses, without lawful authority, a means of identification of another person.''
What that means, Breyer wrote for the court, is prosecutors must show that Flores-Figueroa actually knew the identity he was using belonged to someone else. Absent that, the justice wrote, the case falls apart.
Thomas said he has "no doubt" that defense attorneys will use the ruling to try to undermine cases against defendants who provide cards with made-up Social Security numbers. LaWall agreed.
"They challenge everything," she said.
But both said there are sufficient differences in the wording of state law to allow it to withstand a similar challenge.
The key, said LaWall, is that state lawmakers specifically authorized the prosecution of anyone who uses fake ID.
The question of whether it actually belongs to someone else, she said, is legally irrelevant.
That statute makes it a crime to take, purchase, record, possess or use "any personal identifying information of another person or entity, including a real or fictitious entity" for any unlawful purpose.
Thomas agreed the wording of the state statute is crucial - and legally unassailable.
"The Legislature has great latitude to write the laws as it deems fit," Thomas said.
Thomas said he believes Congress could get around Monday's ruling by taking a page from Arizona and rewriting the federal statute to mirror the state law here. Breyer seemed to agree.
Thomas said the hole in the federal identity theft law underscores the importance of being able to prosecute illegal immigrants under state law.
