PHOENIX — The “Papers, please” provision of Arizona’s SB1070 is now in effect.
U.S. District Court 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. And she refused to reconsider a request by civil rights groups for a new injunction on different grounds.
Bolton’s long-expected move came after the U.S. Supreme Court ruled in June that she was legally incorrect in enjoining 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 that the Arizona law, on its face, conflicted 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 conclusions that those provisions were preempted by federal law.
The judge’s order Tuesday, however, is not likely to be the last word on the controversial law. That coalition of civil rights groups is asking the 9th U.S. Circuit Court of Appeals to again block police from enforcing that section.
In that pleading, they argue that the U.S. Supreme Court ruling overturning Bolton’s original injunction dealt only with the question of federal preemption. This new request is based on arguments that the law will necessarily result in racial profiling.
So far, though, 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 harms 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.”
And Omar Jadwat, an attorney with the American Civil Liberties Union, said in a statement that the law — and specifically 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 SB1070 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.”
SB1070 does have a provision which requires it to be enforced consistent with existing anti-discrimination laws. But it does allow someone’s race to be used as a factor, though not the only one, in determining who to question.
In reviewing the law, 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 SB1070 legally problematic is turning that option into a mandate.
“What police can already do is that when they have someone lawfully in their custody, they can ask some questions,” he said. Similarly, they can choose not to raise the issue and let people go on their way after dealing with the reason for the original stop.
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.”
But it remains to be seen, however, whether it will actually lead 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. But the Obama administration has set out a policy of spending its time pursuing only those illegal immigrants who they consider to be high priority, including criminals and those who have repeatedly entered the country illegally.
And more recently the administration carved out an entire class of people brought here illegally as children — perhaps as many as 1.4 million of the 12 million illegal immigrants in the United States — who could apply for “deferred action” status to be allowed to remain in this country.
But 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 preemptively bar enforcement of this section, the justices seemed interested in just 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 that such inquiries take no more than 11 minutes.
But U.S. Solicitor General Donald Verrilli, representing the Obama administration in its challenge to the law, 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.
“We will definitely be encouraging people to call about cases of abuse,” he said, adding whatever attorneys learn to the challenge to the law.
That challenge goes beyond claims that SB 1070 will necessarily lead to racial profiling.
In their legal arguments, foes of the law said state legislators acted with “discriminatory intent” in approving the measure, a factor they claim courts can consider when determining a statute’s constitutionality.
In approving the law two years ago, backers said they needed to act because of the failure of the federal government to secure the border. They argued that failure is placing a financial burden on Arizona taxpayers who have to provide education and certain public services to those not here legally, as well as the cost of incarcerating illegal immigrants who commit state crimes.
The civil rights groups, however, contend a review of the record suggests an ulterior motive.
“In explaining the need for SB1070, legislators repeatedly relied on wildly exaggerated and outright false ‘facts,’ particularly regarding the alleged criminality of undocumented immigrants,” the opponents told the 9th Circuit. That, they said, “strongly suggests that their stated reasons for passing the legislation were pretext for unlawful discrimination.”
And they said that lawmakers “consistently conflated Latinos, Spanish-speaking individuals, Mexicans, and the children of undocumented immigrants with ‘illegal aliens,’ “ even though they have a legal right to be here.