SB 1070 provision goes back into effect

Federal judge dissolves injunction blocking 'papers, please' aspect
2012-09-19T00:00:00Z 2012-09-19T10:39:08Z SB 1070 provision goes back into effectHoward Fischer Capitol Media Services Arizona Daily Star
September 19, 2012 12:00 am  • 

PHOENIX - The "papers, please" provision of Arizona's SB 1070 is now in effect.

U.S. District Judge Susan Bolton signed the formal order Tuesday dissolving the injunction she issued more than two years ago blocking the state from enforcing key provisions of the 2010 law. She refused to reconsider a request by civil-rights groups for a new injunction on different grounds.

Bolton's move came after the U.S. Supreme Court ruled in June that she should not have enjoined the section, which requires police to question those they have stopped if there is reason to believe they are in this country illegally. The justices said there was no evidence the Arizona law, on its face, conflicts with federal law.

Bolton's order, though, makes permanent the injunction she issued at the same time in 2010 barring enforcement of three other sections of the law. The high court agreed with her conclusion that those provisions were pre-empted by federal law.

The judge's order Tuesday is not likely to be the last word on the controversial law. The coalition of civil-rights groups is asking the 9th U.S. Circuit Court of Appeals to again block police from enforcing that section.

They argue the U.S. Supreme Court ruling overturning Bolton's original injunction dealt only with the question of federal pre-emption. This new request is based on arguments that the law will necessarily result in racial profiling.

The 9th Circuit has yet to act on the request.

Attorney Linton Joaquin of the National Immigration Law Center said his organization and its allies believe there will be real harm to some people now that the law can be enforced.

"It's going to cause racial profiling," he said. "It's going to cause people to be stopped because of their appearance."

Omar Jadwat, an attorney with the American Civil Liberties Union, said in a statement that the law, especially this provision, "has opened the door to racial profiling, wrongful detentions and arrests, putting everyone's civil rights at risk."

But Gov. Jan Brewer, who signed the measure into law, pointed out that SB 1070 allows an inquiry about immigration status only after someone has been stopped for some other reason. And the governor said she is has "full faith and confidence" that state and local police can enforce the law fairly and impartially.

"They bring their training and experience to this important task, as well as a solemn commitment to service the public, protecting our citizens and upholding the law," she said in a prepared statement. "That means all of our laws, including those barring racial profiling or discrimination."

SB 1070 includes a provision that requires it to be enforced consistently with existing anti-discrimination laws, but it does allow race to be used as a factor - though not the only one - in determining whom to question.

The Supreme Court pointed out that current Arizona law already permits individual officers, using their own judgment, to question those they have stopped about their immigration status. But Joaquin said what makes SB 1070 legally problematic is turning that option into a mandate.

Removing that discretion, Joaquin said, will create new problems as officers seek to verify legal presence in this country.

"It's not an instantaneous determination whether somebody has immigration status," he said. "It is, in practice, going to lead to people being detained solely for the purpose of an immigration check."

It remains to be seen if the law actually leads to anyone being deported.

Earlier this year, the Department of Homeland Security revoked the agreements it had with several Arizona law enforcement agencies that allowed specially trained officers to determine if someone is in this country legally and then detain that person for deportation.

That means only a federal officer can make that determination. The Obama administration has set out a policy of pursuing only those illegal immigrants whom it considers to be high-priority, including criminals and those who have repeatedly entered the country illegally - and more recently people brought here illegally as children who could apply for "deferred action" status to be allowed to remain in this country.

If state and local police spend extra time questioning people about their status, or waiting for a response from Immigration and Customs Enforcement, that could prove fertile ground for future challenges to the law.

While the high court refused to bar enforcement of this section, the justices seemed interested in how long someone might be detained beyond the time necessary just to verify immigration status.

Paul Clement, the private attorney hired by Brewer to represent the state, told the justices such inquiries take no more than 11 minutes.

But U.S. Solicitor General Donald Verrilli responded that's only half true. He said it does take 11 minutes, but only after what could be a 60-minute wait on hold for an immigration official to answer the call.

Joaquin said civil-rights groups will be watching.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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