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Arizona SB 1070‎, Legal Challenges and Economic Realities

ARCHIVED ISSUE PAGE (LAST UPDATED AUGUST 2011)

Arizona’s controversial immigration enforcement law, "Support Our Law Enforcement and Safe Neighborhoods Act" (SB 1070, amended by HB 2162) requires state and local law enforcement agencies to check the immigration status of individuals it encounters and makes it a state crime for noncitizens to fail to carry proper immigration documentation. Soon after Arizona’s governor signed the bill, challenges to the law were filed. This page highlights the suits challenging the Arizona law. Read about challenges to other state and local laws at the State and Local Law Enforcement Litigation Issue Page.

Cases | Other Arizona Litigation | Litigation-related Articles and Resources | Economic Realities

Cases

Ninth Circuit Upholds Temporary Injunction Against SB 1070; Arizona Appeals Ruling to Supreme Court

United States of America v. State of Arizona, No. 10-01413 (D. Ariz. prelim. injunction granted July 28, 2010); prelim. injunction aff’d , No. 10-16645 (9th Cir. April 11, 2011); petition for certiorari filed, No. 11-182 (Aug. 10, 2011)

Recent developments:

On April 11, 2011, the Ninth Circuit upheld a temporary injunction against four provisions of SB 1070 entered last July by U.S. District Judge Susan Bolton.  The Ninth Circuit’s ruling thus continued to block enforcement of provisions that:

  • require officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if they possess “reasonable suspicion” that the person is unlawfully present in the United States, and require the verification of the immigration status of any person arrested prior to releasing that person (Section 2(B));
  • criminalize noncitizens’ failure to apply for or carry alien registration papers (Section 3);
  • bar unauthorized aliens from soliciting, applying for, or performing work (Section 5(C); and
  • authorize the warrantless arrest of noncitizens where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States (Section 6).

The Ninth Circuit opinion is available here.  The district court’s order is available here.

Background:

The United States filed suit against Arizona on July 6, 2010. The federal government argues that SB 1070, as amended, is preempted by federal law and violates the Supremacy Clause of the U.S. Constitution. The complaint alleges SB 1070 encroaches on an area constitutionally reserved for the federal government; conflicts with federal immigration laws and federal immigration policy; conflicts with foreign policy; and impedes the execution of the objectives of Congress.

The complaint states that SB 1070 pursues only one goal – “attrition” – despite the many other competing objectives Congress established for the federal immigration system. Thus, the complaint argues, if SB 1070 is allowed to go into effect, its “mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives.” The complaint alleges that SB 1070 will impose significant burdens on federal agencies and divert resources from “dangerous aliens” who are the federal government’s top enforcement priority; result in the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by SB 1070; ignore humanitarian concerns, such as protections available for noncitizens who have a well-founded fear of persecution or who have been the victim of a natural disaster; and will interfere with foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.

The complaint alleges violations of the Supremacy Clause, preemption under federal law, and a violation of the Commerce Clause. The complaint seeks a declaratory judgment stating that sections one through six of SB 1070 are invalid; a preliminary and permanent injunction prohibiting the enforcement of such sections; and costs and other relief the court deems just and proper.

Plaintiffs Survive Motion to Dismiss in Class Action Challenging Constitutionality of SB 1070
Friendly House v. Whiting, No. 10-1061 (D. Ariz. filed May 17, 2010)

Several plaintiffs, including community service organizations, labor unions, a religious organization, and a business association, as well as several individuals (U.S. citizens and noncitizens), brought a class action challenging SB 1070.

The complaint, which was filed by the ACLU and other civil rights groups, alleges that SB 1070 unlawfully attempts to regulate immigration and punish those whom Arizona deems to be in violation of immigration laws. SB 1070 created state criminal offenses relating to immigration and requires state officials to investigate, seize, and detain persons suspected of immigration violations. The complaint states that the law is an “impermissible encroachment into an area of exclusive federal authority and will interfere and conflict with the comprehensive federal immigration system.” In addition, plaintiffs allege that SB 1070 will result in widespread racial profiling; will subject people of color to unlawful interrogations, searches, seizures, and arrests; and will deprive people of freedom of speech and expressive activity.

The complaint contends that SB 1070 violates the Supremacy Clause, the First Amendment, the Fourth Amendment, the Due Process Clause, the Privileges and Immunities Clause, the Equal Protection Clause, and the Arizona Constitution. Plaintiffs seek preliminary and permanent injunctive relief, a declaration that SB 1070 is unconstitutional, and attorneys’ fees. On June 4, 2010, plaintiffs filed a motion for a preliminary injunction, asking the court to enjoin enforcement of SB 1070 pending the resolution of the lawsuit. Numerous organizations submitted amicus briefs in support of the motion for preliminary injunction. In addition, several states and organizations have sought leave to file and filed amicus briefs supporting SB 1070. (Click the following link for amicus briefs.)

Beginning on June 15, 2010, various county attorneys and sheriffs filed substantially similar answers asserting that the action is not ripe because SB 1070 is not yet being enforced; plaintiffs do not have standing to bring the action; and as nominal parties, defendant county attorneys and sheriffs should be dismissed. The Pinal County Attorney and Sheriff, the Maricopa County Sheriff, and intervenor defendant Governor Brewer have filed motions to dismiss the plaintiffs’ case alleging that plaintiffs do not have standing and do not state claims upon which relief can be granted.

On October 8, 2010, the court ruled on the defendants’ motion to dismiss and plaintiffs’ motion for a preliminary injunction. The court denied defendants’ motion to dismiss as to the majority of plaintiffs’ claims, but granted the motion as to four claims. It dismissed two claims for lack of standing: 1) violation of the First Amendment pertaining to section 2 of SB 1070, see pgs. 10-11 of Order, and 2) violation of the right to travel under the Privileges and Immunities Clause, see pgs. 11-12 of Order. It also dismissed two claims for failure to state a claim upon which relief can be granted: 1) violation of the First Amendment pertaining to a subsection of Section 5 of SB 1070, see pgs. 20-21 of Order, and 2) violation of the Due Process Clause pertaining to plaintiffs’ challenge to sections 2 and 5 of SB 1070 for vagueness, see pgs. 24-26 of Order.

The court ruled that plaintiffs in this action did not substantively challenge any provisions of SB 1070 that the court did not enjoin in its July 28, 2010 order in United States v. State of Arizona and thus, plaintiffs’ motion for a preliminary injunction was moot. However, the court acknowledged that plaintiffs did challenge provisions on some different grounds and if the court had not found the motion moot, it would have found “persuasive” plaintiffs’ Fourth Amendment argument that SB 1070 “transforms investigatory stops into de facto arrests without probable cause.”

League of United Latin American Citizens v. State of Arizona, No. 10-1453, (D. Ariz. filed July 9, 2010)

Two civil rights organizations and several noncitizens filed a class action challenging SB 1070. The complaint alleges that SB 1070 is preempted by federal immigration law and violates the Supremacy, Interstate Commerce, and Due Process clauses of the Constitution. Plaintiffs maintain that federal agencies that enforce immigration laws balance the “multifaceted and sometimes competing objectives that Congress seeks to achieve” and the state legislation “will simply drive immigrants from one state to the next, leaving national policies in shambles.” Moreover, according to the complaint, Arizona’s training materials, which were distributed to law enforcement agencies, “exacerbate the conflicts between the United States Constitution and federal laws on the one hand, and Arizona law on the other hand, by inter alia failing to recognize adequately the numerous categories of immigrants who did not enter the United States lawfully [but] nevertheless are eligible for legalization of status, and by permitting law enforcement officers to rely upon vague and ill-defined factors such as a person’s ‘dress,’ ‘difficulty communicating in English,’ ‘demeanor,’ and ‘claim of not knowing others … at the same location,’ as providing justification for a detention based on suspected undocumented status.”  On September 13, defendants filed a motion to dismiss claiming plaintiffs lack standing and have failed to state a claim upon which relief can be granted.

National Coalition of Latino Clergy and Christian Leaders v. State of Arizona, No. 10-00943 (D. Ariz. filed Apr. 29, 2010)

Two non-profit organizations, including Conclamic Arizona, an organization with 30,000 affiliated churches and a membership of 300 Arizona pastors, as well as U.S. citizens, lawful permanent residents, and other plaintiffs, brought a class action challenging SB1070. The proposed class includes “all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law.”

In the amended complaint, plaintiffs allege constitutional violations, including due process violations, violations of the Supremacy Clause, and violations of the First Amendment. They seek class certification, declaratory and injunctive relief, and attorneys’ fees.

Salgado v. Brewer, No. 10-00951 (D. Ariz. filed Apr. 29, 2010)

A U.S. citizen employed as a patrol officer for the Phoenix Police Department and Chicanos Por La Causa, a community development corporation and civil rights group in Arizona, brought a lawsuit challenging SB 1070. The amended complaint alleges that the law is preempted by federal law in violation of the Supremacy clause, conflicts with the Supreme Court’s ruling in Plyler v. Doe, 457 U.S. 202 (1982), and violates plaintiffs’ First and Fourteenth Amendment rights.

On May 17, 2010, plaintiffs filed a Motion for a Preliminary Injunction.  On June 11, defendant Governor Brewer filed a motion to dismiss for lack of standing that is substantially similar to her motion in Escobar v. Brewer (see case summary below). The motion alleged that plaintiffs do not present a cognizable case or controversy and instead allege only “abstract outrage” at SB 1070’s enactment. Judge Bolton heard oral arguments on defendant Brewer’s motion to dismiss and plaintiffs’ motion for a preliminary injunction on July 15

Escobar v. Brewer, No. 10-00249 (D. Ariz. dimissed Aug. 31, 2010)

A naturalized U.S. citizen employed as a police officer with the Tucson Police Department brought a lawsuit challenging Arizona law, SB1070. The amended complaint alleges that the law is preempted by federal law, conflicts with the Supreme Court’s ruling in Plyler v. Doe, 457 U.S. 202 (1982); violates the First, Fourth and Fifth Amendments; and violates the Due Process and Equal Protection clauses of the Fourteenth Amendment. Plaintiff requests declaratory and injunction relief and attorneys’ fees.

On May 26, 2010, the city of Tucson, one of the defendants in the suit, filed an answer admitting many of the allegations in the complaint and alleging cross-claims against its co-defendants. Tucson seeks declaratory relief that SB 1070 is unconstitutional as preempted by and in conflict with the INA and a violation of the Commerce Clause. In its answer to the amended complaint, Tucson says that if the law is not enjoined, it will be required to implement an unconstitutional law and will incur liability for that conduct. Tucson subsequently filed a motion for a preliminary injunction, asking the court to enjoin enforcement of the law. On June 11, 2010, the Arizona cities of Flagstaff, San Luis, Somerton, and Tolleson moved to join the lawsuit as plaintiff intervenors.

On June 11, 2010, defendant Governor Brewer filed a motion to dismiss alleging that plaintiffs lack standing because they do not present a cognizable case or controversy. Defendant Brewer alleges that plaintiffs “essentially allege only ‘abstract outrage’ at SB 1070’s enactment” and do not and cannot allege a real and immediate threat of harm from the enforcement of SB 1070. On July 2, 2010, defendant Brewer filed a motion for judgment on the pleadings in response to the city of Tucson’s cross claim. The motion asserted that the Ninth Circuit has established a per se rule prohibiting political subdivisions of the state, such as Tucson, from challenging the constitutionality of a state statute and thus the claim should be dismissed.

On August 31, Judge Bolton dismissed Officer Escobar’s claim for lack of standing.  Judge Bolton found that the mere possibility that Officer Escobar could face future civil liability for enforcing SB 1070 did not present a sufficiently imminent injury to confer standing, particularly given that he would possess qualified immunity against alleged constitutional violations.  Judge Bolton also construed SB’s 1070 private right of action section to permit Arizona residents to sue state entities, but not individual employees, who fail to comply with its provisions.

Frisancho v. Brewer, No. 10-00926 (D. Ariz. dismissed Aug. 24, 2010)

A U.S. citizen resident of the District of Columbia who plans to visit Arizona brought a pro se lawsuit challenging SB 1070. The complaint alleges violations of the U.S. Constitution and the Arizona Constitution, including violations of the Privileges and Immunities Clause, the Equal Protection clause of the Fourteenth Amendment, and the Supremacy Clause. Plaintiff requests declaratory and injunctive relief and court fees.

On June 11, 2010, defendants Governor Brewer and Attorney General Goddard filed motions to dismiss alleging that the plaintiff’s claims do not present a justiciable case or controversy and that plaintiff lacks standing to pursue them. Defendant Goddard argues that the plaintiff’s assertion of injury rests on speculation about what may happen in the future and fails to consider amendments to SB 1070 that prohibit law enforcement officials from relying on race, color or national origin to formulate reasonable suspicion of unlawful presence. Defendant Brewer argues that the plaintiff does not have standing because he fails to state an actual, imminent injury in fact. Specifically, defendant Brewer contends that plaintiff’s allegations are speculative and that “[t]he likelihood that plaintiff will suffer any cognizable injury related to SB 1070 is purely hypothetical and extremely remote.”

On August 24, Judge Bolton dismissed Frisancho’s claim for lack of standing.  Judge Bolton agreed with Arizona that the plaintiff’s potential injury was “too attenuated” to confer standing, finding the prospect that he would be stopped by police – and that police would have reason to suspect he lacked valid immigration status – was inherently speculative.

Other Arizona Litigation

Ninth Circuit Upholds State Law Barring Employment of Undocumented Immigrants
Arizona Contractors Assoc., Inc. v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007), aff'd sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), petition for cert. filed sub nom. Chamber of Commerce v. Candelaria, (July 24, 2009) (No. 09-115)

Suit Challenges Unlawful Stop; Alleges Ethnic Profiling
Mora v. Arpaio, No. 09-01719 (D.Ariz. filed August 19, 2009)

Court Denies Motion to Dismiss Suit Challenging Racial Profiling in Traffic Stops
Melendres v. Arpaio, 07-2513, 598 F. Supp. 2d 1025 (D. Ariz. motion to dismiss denied 2009)

Litigation-related Articles and Resources

Economic Realities

Immigration Policy Center