PHOENIX - Civil- and immigrant-rights groups asked a federal judge late Tuesday to block SB 1070 from taking effect despite a U.S. Supreme Court ruling last month siding with the state.
The legal papers say that what has been dubbed by foes as the "papers, please" provision of the 2010 law cannot be implemented without discriminating against minorities. That part of the law requires police to check the immigration status of those they have stopped if there is reason to believe they are in the country illegally.
Last month the nation's high court gave the go-ahead for Arizona to begin enforcing that section of the law, effectively overturning the injunction U.S. District Judge Susan Bolton issued two years ago barring enforcement. Bolton is expected to formally dissolve her order by the end of the month.
But the lawyers from groups including the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund are reminding Bolton the only issue in the Obama administration lawsuit that was heard by the Supreme Court was whether SB 1070 illegally infringed on the exclusive right of the federal government to regulate immigration. The court concluded the law, on its face, does not.
What was not addressed, they said, were separate arguments that simply questioning people about their status would automatically violate their rights because of the length of time they would be detained.
In asking Bolton to once again block the law - even before a trial on its merits - the challengers say there is "ample evidence" of irreparable harm to Hispanics and others who would be "at risk of unlawful detention and interrogation based on little more than an officer's 'reasonable suspicion' that they are 'unlawfully present in the United States.'"
As proof, the challengers cited a declaration by Tucson Police Chief Roberto Villaseñor, who said his agency issues about 36,000 citations a year instead of actually making arrests.
"Under (the law) if we cannot get immediate confirmation from federal officials of the immigration status of these suspects, we will have to extend their detentions in the field until we get a status determination …or book them into jail to await these results," Villaseñor said. "Either scenario will result in extended detention of thousands of individuals - even if it is for brief periods of time."
On the other side of the issue, the lawyers argued Cochise County Sheriff Larry Dever has said he will use the provision in ways that conflict with federal authority.
Dever acknowledged the Obama administration has decided that, as a matter of priorities, it does not intend to pursue or deport certain people even though they are here illegally. That most recently includes those who came to this country as children.
But Dever said they are here illegally and that his deputies, on finding those in this country without documents, will take them into custody, and if immigration officers won't come and pick them up, he will have them dropped off at the local Border Patrol office - even if they end up being released there after having been detained.
"I'm interested in the safety and welfare of the citizens of Cochise County," he said. "I really could give a damn what their policy is."
And if people are detained by deputies only to be released, Dever responded, "So?"
Matt Benson, press aide to Gov. Jan Brewer, said the move is not a surprise.
"Opponents of SB 1070 have indicated they'll go to any length in order to block Arizona's implementation of this law," he said, pointing out the prior Supreme Court ruling.
But ACLU attorney Dan Pochoda noted the high court did not specifically say the section on questioning those who are stopped is legal. In fact, Justice Anthony Kennedy, who wrote the ruling, said only that "it is not clear at this stage and on this record that the verification process would result in prolonged detention."
Benson said Brewer believes SB 1070 can be enforced "fairly, lawfully and in harmony with civil rights and the Constitution," saying the new allegations amount to "fear-mongering and outrageous allegations."