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ACLU files lawsuit precursor in SB 1070 challenge case

2013-11-13T00:00:00Z 2013-11-13T11:43:54Z ACLU files lawsuit precursor in SB 1070 challenge caseBy Carli Brosseau Arizona Daily Star Arizona Daily Star

The American Civil Liberties Union has launched the first legal challenge to the so-called “show me your papers” provision of SB 1070 since it went into effect just over a year ago.

The ACLU sent a notice-of-claim letter Tuesday to the South Tucson Police Department on behalf of Alejandro Valenzuela, who was detained by police and transferred to the Border Patrol last summer without having been accused of a crime under state or local law.

A notice of claim is required before suing a public entity. The letter said Valenzuela would be willing to settle for $100,000 in addition to costs and attorneys’ fees. South Tucson has 60 days to respond.

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South Tucson City Attorney Andrea de Castillo, who also has a private immigration-law practice, declined to comment Tuesday because she was unable to reach the city manager.

A lawsuit challenging the implementation of SB 1070 was expected even before the so-called provision 2(B) went into effect, requiring police to check the immigration status of those they stop, detain or arrest if they develop reasonable suspicion that the person may be in the county illegally.

“Lawsuits about the implementation of SB 1070 were inevitable after the Supreme Court’s ruling on SB 1070” last summer, said Lynn Marcus, co-director of the immigration clinic at the University of Arizona’s James E. Rogers College of Law.

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“It (the Supreme Court) didn’t want to strike down the provision in the abstract. It didn’t want to assume police departments would implement it in an unconstitutional manner.”

The justices warned, however, that they would take another look at the law if there was evidence that people were being stopped unfairly or detained for long periods.

In the letter sent Tuesday, the ACLU accused South Tucson police of violating Valenzuela’s right to freedom from unreasonable seizure under the state and U.S. constitutions. It alleged that Valenzuela was “subjected to unreasonable seizure based on his actual or perceived race and ethnicity” and detained by South Tucson police for no other reason than to check his immigration status and to transport him to federal authorities.

The ACLU provided the following account:

Valenzuela, a 23-year-old activist with the Southside Worker Center, got a call July 13 from another member of the worker center that police were at the member’s home.

He and a work colleague went to the friend’s house and met him outside.

They did not interfere with the investigation and left the scene when an officer asked them to, returning to their car, which was parked farther down the block.

Officer Paul South later walked up to the parked car, and demanded the keys and identification from Valenzuela and his colleague.

Valenzuela showed the officer his community-college ID, his bus ID and his worker center ID and did not answer questions about his citizenship.

He was told to “wait here” while officers discussed the situation, referring to Valenzuela and his friend as “illegals,” and he was detained for “an extended period of time.”

He was eventually taken to the South Tucson police station in one officer’s car, then transferred to a squad car and taken to the U.S. Customs and Border Patrol station, where he was detained for about five hours until someone was able to bring documents showing his eligibility for the Deferred Action for Childhood Arrivals program.

ACLU attorney James Lyall said Valenzuela’s detention illustrated the organization’s fears about how SB 1070 could be implemented if police departments did not improve their oversight of officers’ immigration-related interactions.

“Even if it began as a consensual encounter, the officer demanded ID and repeatedly asked about immigration status,” he said. “So-called consensual encounters are problematic under the law because it’s not totally clear the person being approached is clear to go.”

Valenzuela did not receive a citation.

Contact reporter Carli Brosseau at cbrosseau@azstarnet.com or 573-4197. On Twitter: @carlibrosseau

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