Arizona Republic
Arizona Gov. Jan Brewer's office said late Wednesday that the state will file an expedited appeal with the 9th Circuit Court of Appeals on Thursday, asking the panel to lift the preliminary injunction preventing several sections of Arizona's new immigration law from going into effect.
The appeal will ask the court to lift the injunctions put in place by U.S. District Court Judge Susan Bolton earlier Wednesday and allow those provisions to go into effect until a decision is made on the merits of the law, Brewer spokesman Paul Senseman said.
As part of its motion, the Governor's Office also will ask the 9th Circuit to expedite its briefing schedule and its ruling on the matter, Senseman said.
Senate Bill 1070 was passed by the Legislature and signed into law by Brewer in April. It made it a state crime to be in the country illegally and stated that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.
It also made it a state crime to stop a vehicle in the road to hire a day laborer if it impedes traffic as well as to transport, harbor, conceal or shield an illegal immigrant while committing a separate criminal offense.
Bolton's ruling stops four of the law's more than a dozen provisions from going into effect.
"The court also finds that the United States is likely to suffer irreparable harm if the court does not preliminarily enjoin enforcement of these sections," she states in the ruling. "The balance of equities tips in the United States' favor considering the public interest."
Key parts of SB 1070 that will not go into effect Thursday:
• The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion they're in the country illegally.
• The portion that creates a crime of failure to apply for or carry "alien-registration papers."
• The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.
• The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. There are three parts to that part of the law. Two of them will go into effect, one of them will not.
Bolton prevented from going into effect the part that creates a crime for an illegal immigrant to solicit, apply or perform work. She allowed the part that makes it a crime to pick up a day laborer in a roadway if it impedes the flow of traffic as well as the part that makes it a crime to be picked up as a day laborer in a roadway if it impedes the flow of traffic.
The ruling also says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.
Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.
After the ruling came down, attorneys rushed to read the 36 pages and begin explaining to law enforcement what could still be enforced.
Brewer, in a phone interview from Tucson, said she was still being briefed on the order, but said, "I look at it as a little bump in the road."
Brewer has not yet spoken with her attorneys in detail, but said she "would assume" that their next step would be appealing the injunction to the 9th Circuit Court of Appeals. "The fact of the matter is this is just an injunction," Brewer said. "We need to go through the court process so the merits of the bill can be debated. I am sure as we go through the process, we'll get a fair hearing."
Bolton's ruling followed hearings on three of seven federal lawsuits challenging SB 1070. Plaintiffs include the U.S. Department of Justice, the American Civil Liberties Union, Phoenix and Tucson police officers, municipalities, illegal immigrants and non-profit groups.
Today's ruling is in the Department of Justice case. Bolton has not yet issued rulings on motions in the case filed by Phoenix Police Officer David Salgado and the case filed by the ACLU and other civil-rights groups.
What the ruling means
Brewer had tasked the Arizona Police Officer Standards and Training board with creating a training video for law enforcement around the state to help them comply with the law.
Lyle Mann, the agency's director, said Bolton's decision raises more questions about what portions of the law, if any, police departments will be enforcing on Thursday.
"We will review in detail the injunction as issued to see what, if any, response we need to provide to agencies," Mann said.
Maricopa County Sheriff Joe Arpaio said he was not surprised by Bolton's ruling, but it will have little impact on his planned "crime-suppression" operation scheduled for Thursday.
"That's not going to affect our human-smuggling or employer-sanction investigations, that wasn't addressed in that law," he said.
Arpaio said the only thing Bolton's ruling changed is the ability for Arizona law enforcement to use a state charge - willful failure to carry documents - to book someone into jail. Now, Arpaio said, the agencies can continue to contact Immigration and Customs Enforcement officials to determine if federal agents will take custody of the suspect.
Everyone booked into Maricopa County Jail will continue to have their immigration status screened by federally trained sheriff's deputies through an agreement with ICE.
Phoenix police legal advisors were busy combing through Bolton's ruling to determine the impact. The challenge, said Sgt. Tommy Thompson, will be determining what, exactly, that ruling means before 12:01 a.m.
Brewer gave AzPOST a month to develop the statewide training for law enforcement, and police across the state had a month to implement the training, which included a two-hour video and additional materials police departments used to supplement.
Legal advisors now have 14 hours to determine what Bolton's ruling does to the last two months of preparation.
"We have to give our legal people time to review it," Thompson said, adding that it is not unrealistic to expect officers to have some directive by Thursday morning.
"We are bound to enforce the law and that means that we enforce it correctly," Thompson said. "It's certainly a challenge for us to meet that deadline, but it's something that we will do our best to be ready to follow the guidelines laid out by the judge at this point."
The Pinal County Sheriff's Office also is waiting for a review.
"We have no reaction because we're going to do business today, tomorrow the same as we did yesterday ... If we come into contact with a load of what is obviously someone being smuggled, we'll do what we do today: We'll call ICE or Border Patrol or a deputy who is ICE certified," said Chief Deputy Steve Henry said.
Henry said he is waiting on an overview from the Pinal County Attorney's Office as to what happened in court today and what it means with regard to SB 1070 implementation.
"In the meantime, we're not even holding our breath," Henry said. "We're just doing business. We're not in the business of racially profiling or arresting people on their skin color. This is essentially a non event."
However, Sheriff Paul Babeu was more vocal in his opposition to the ruling: "Incredibly, even though there is not one person who can legitimately claim to be harmed by a law that has not even taken effect, the result of an injunction is de facto amnesty through non-enforcement of laws against illegal immigration."
The governor deferred answering specific questions about the impact of the ruling to her attorneys. For example, Bolton let the part of SB 1070 that requires agencies to enforce federal immigration law to the fullest extent of the law to stand, but enjoined the part about allowing officers to question an individual's legal status.
When asked how it would be possible to do one without the other, Brewer said her office would need to "confer with our lawyers to see how that would be enforced."
"Those are legal questions that do have to be addressed," said Brewer, who plans to be back in Phoenix by 3 p.m., and hopes to meet with her attorneys at some point this afternoon.
The Arizona Supreme Court had prepared an administrative order as to how the courts would handle SB1070 cases that was supposed to be issued Wednesday morning. Bolton's ruling sent the high court scrambling to revise the order in light of the enjoined portions of the law.
Originally it called for a review hearing after 24 hours for those people who were being held in custody only because their immigration status had not yet been verified. That issue became moot when the federal court order tabled that section of the law.
Instead, the Supreme Court ruled that the federal Immigration and Customs Enforcement agency be notified when defendants are found to be unlawfully present in the United States. And it codified a part of the law in which law enforcement officers apply to a judge to remove a suspect from the state, and rewrote the documents that law enforcement fills out for a defendant's initial court appearance.
Stakeholders react
Brewer said Bolton's order was not entirely a surprise, given some of the questions that the judge asked during last week's court proceedings.
Sen. Russell Pearce, a Mesa Republican and author of Senate Bill 1070, downplayed the significance of the judge's order Wednesday, noting that it was just a temporary injunction and that she allowed the portion of the bill that requires agencies to enforce federal immigration law to the fullest extent to remain in place.
"As of Thursday, the handcuffs come off of law enforcement," Pearce said. "This says clearly that we can enforce federal law and we cannot be impeded."Pearce believes the case will ultimately make its way to the Supreme Court, and he predicted a win for Arizona.
"We will appeal this immediately and we will win on appeal," he said. "This will be to the Supreme Court eventually, and I expect a 5-4 decision in our favor, perhaps even 6-3."
Rep. John Kavanagh, one of the co-sponsors of the bill, had a less optimistic view of the ruling, calling Bolton's ruling "very disappointing," saying that she "went to the meat of the law." "The decision is very disappointing," Kavanagh said. "Those were major parts of the law that helped us battle illegal immigration. I assume that we will immediately appeal to the 9th Circuit (Court of Appeals)."
Kavanagh said that the state remained committed to defending the law and seeing it enacted. "This is only the start of the legal battle."
Brian Bergin, the attorney representing Cochise County Sheriff Larry Dever as a defendant in one of the lawsuits, said he appreciated the fact that Bolton didn't prevent SB 1070 in its entirety from becoming law.
"But the court did enter an injunction prohibiting the enforcement of what we consider to be some of the act's more important provisions," he said.
Bolton has not yet issued an order in Dever's case, but Bergin said he expects it to be similar to the one she has issued. He said he still has to talk to Dever but he expects they would appeal.
Meanwhile, Hannah August, a Justice Department spokeswoman, said the administration believes Bolton's decision to block key parts of SB 1070 was correct.
"While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive," August said.
Matt Chandler, deputy press secretary with the Department of Homeland Security said Bolton's decision "affirms the federal government's responsibilities in enforcing our nation's immigration laws."
"Over the past 18 months, this administration has dedicated unprecedented resources to secure the border, and we will continue to work to take decisive action to disrupt criminal organizations and the networks they exploit."
ACLU of Arizona Executive Director Alessandra Soler Meetze said she's pleased with the judge's decision.
"We think this is a major step that will protect the residents of Arizona against racial profiling and discrimination," she said. "But we still have some concerns about the remaining provisions, especially how the harboring provisions and the day laborer provisions may be misapplied by overzealous law enforcement."
Shortly after the ruling, Attorney General Terry Goddard, who is the presumptive Democratic nominee for governor and Brewer's anticipated general election opponent, accused her of using SB 1070 for political gain, tweeting "Brewer played politics with immigration - and she lost."
Stephen Montoya, the attorney representing Phoenix police Officer David Salgado in the lawsuit he filed challenging SB 1070, said he was gratified by Bolton's ruling.
"We think she struck the heart out of 1070," Montoya said. "We're gratified but we're not surprised."
He said he expects the state to immediately file an appeal, and they will fight that. Montoya said he hopes that Bolton's ruling will bring a halt to the inflammatory rhetoric on all sides.
"I think the people who lost shouldn't feel like they completely lost because they do have an avenue of redress and that is the United States Congress," he said. "This debate is for the federal Congress, not for the state Legislature."
Rafael Limón, head of the Sonora state government's migrant affairs office in Nogales, said "It will give us a little rest, but it's not time to celebrate yet."
Limón's office has been bracing for a wave of new deportees because of the law, he said. The Sonoran government runs a clinic for deportees, gives them free telephone calls and pays half the cost of a bus ticket for out-of-state migrants who want to return home.
Sonoran officials are worried that a wave of deportees caused by SB1070 could lead to more crime in the state, Límon said.
"That's one of the fears, that we could see more social problems," Limón said. "With no money, some of those deportees may turn to crime."
Planned protests
David Gonzales, U.S. Marshal in Arizona, whose agency is charged with security at the federal courthouse in downtown Phoenix, said the building was closed to the public except for those who have business there.
Gonzales said there was some concern about protesters in the wake of Bolton's ruling. "When you have situations like this, emotions are running high on both ends," Gonzales said. "So the potential for violence is high."
A spokeswoman for Puente, one of the groups that have been organizing against the law, said the group doesn't view the partial injunction as a victory and believes the entire law should have been stopped.
"There is still a lot to be dealt with," said Opal Tometi, a spokeswoman for the group. "This decision doesn't get at the root of the issue or get at the concerns of the people affected."
Tometi said the group is planning on going ahead with Thursday's scheduled protest.
Community activist Salvador Reza said at an afternoon news conference that the community would not rest because of the injunction. "We will continue our struggle, we will continue our vigilance and we will continue our civil disobedience."
Those words were echoed by Pablo Alvarado,of the National Day Laborer Organizing Network, said "SB 1070 is on life support, but it's still alive."
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