Lawyers debate merits of SB 1070

2010-07-16T00:00:00Z 2010-07-16T10:01:56Z Lawyers debate merits of SB 1070Howard Fischer Capitol Media Services Arizona Daily Star
July 16, 2010 12:00 am  • 

PHOENIX - In the first of what will be many court hearings, attorneys for Gov. Jan Brewer told a federal judge Thursday that the state and its taxpayers will suffer if she delays enforcement of Arizona's new immigration law.

A Phoenix police officer wants U.S. District Judge Susan Bolton to block the law, contending he could be subject to termination or hit with a civil lawsuit if he refuses to enforce the law, which he considers unconstitutional, or sued for civil rights violations if he enforces it improperly.

The judge made no rulings on Thursday, saying she wanted to review arguments that sections of the state law conflict with and are pre-empted by federal immigration statues.

But Bolton is looking at the complaint closely, even telling the attorney for the officer in court that, at least in one case, there appears to be no basis for his pre-emption claim.

On July 22, Bolton will hear arguments in two related cases that challenge other aspects of SB 1070 - one by the U.S. Department of Justice and one by a coalition of the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund.

The hearings this week and next are on requests for an injunction to stop the law from taking effect July 29 until the courts can determine its legitimacy. Four other suits have been filed but are not seeking injunctions.

John Bouma, Brewer's lawyer, said legislators passed SB 1070 to deal with the effects of illegal immigration, from human smuggling and crimes committed by gangs of illegal immigrants to the financial burdens placed on the state, while the claims of those challenging the law that they will be injured are "speculative."

But Stephen Montoya, who represents Phoenix police Officer David Salgado, said the law puts his client in an untenable position. "He has a claim to his job," Montoya said.

Bolton, however, said it may just be Salgado's opinion that SB 1070 is unconstitutional, and questioned whether that's enough for him to allege possible harm by enforcing it.

Montoya contended the Department of Justice suit alleging SB 1070 pre-empts federal statutes should resolve any doubt on that point.

Bouma, however, told the judge that just because federal authorities made that assertion doesn't make it correct.

The question of who is harmed if the law takes effect is crucial to Bolton's decision on the injunction requests. Another key issue will be who is likely to prevail when there is a full-blown trial on the legality of the law.

Montoya argued that the state has gotten along without the law for years, so there should be no real harm in a short delay.

But Bouma said after the hearing that people are being irreparably harmed every day, and the economy "is being hurt by the amount of money we have to spend on education and crime and hospitalization, things like that."

Any ruling by Bolton on the injunction requests won't invalidate or uphold the law itself. That will come through trials yet to be scheduled.

Bolton acknowledged there could be a question of whether federal law pre-empts a mandate that police who have stopped someone must, when practicable, make a reasonable effort to determine that person's immigration status if there is "reasonable suspicion" the individual is an illegal immigrant.

But the judge said she sees nothing wrong with the other part of the same section of law that makes it illegal for any city or county to "limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law."

Bolton said that language applies only in those limited circumstances when federal law already allows local police to enforce immigration statutes. That, she said, undermines any claim of conflict with or pre-emption by federal law.

Bouma denied that SB 1070 conflicts with federal law. And he said there is no requirement for state officials to sit idle when the border is not secure.

"There's no reason Arizona should have to suffer the consequences of a broken system ... when Arizona has 15,000 well-trained and capable (police) officers to fix it," he said.

Montoya said, however, the law could infringe on the rights of U.S. citizens.

One section says police must determine the immigration status of anyone arrested for any crime, no matter how minor, before that person can be released.

"What if that person is my grandmother?" he asked the judge. "She can be held in jail until she can produce a birth certificate she never had," Montoya continued, saying his grandmother was born on a rural ranch and doesn't have an Arizona driver's license.

On StarNet: Find extensive coverage of immigration issues at azstarnet.com/news/local/ border

"There's no reason Arizona should have to suffer the consequences of a broken system ... when Arizona has 15,000 well-trained and capable (police) officers to fix it."

John Bouma,

attorney for Gov. Jan Brewer

See more Inside

Border governors will meet in Santa Fe, N.M., after Arizona Gov. Jan Brewer canceled the meeting scheduled for Phoenix. A2

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