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    Arizona Law Upheld In Part – Order and Analysis Here (Update: Strikes Most Key Provisions)

    Arizona Law Upheld In Part – Order and Analysis Here (Update: Strikes Most Key Provisions)

    The Court in Arizona has upheld the Arizona immigration law in part.

    Here is how The Wall Street Journal characterizes the holding:

    A judge has blocked the most controversial sections of Arizona’s new immigration law from taking effect Thursday, handing a major legal victory to opponents of the crackdown.

    The law will still take effect Thursday, but without many of the provisions that angered opponents—including sections that required officers to check a person’s immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times and made it illegal for undocumented workers to solicit employment in public places.

    The decision was a surprise to me in that it struck the provision — which was most controversial — as to checking immigration status of persons already arrested or stopped for some other offense if there were a reasonable suspicion that the person was in the country illegally.

    In rejecting the provision as to checking the status of persons arrested, the Judge found that the legislative language, which had been adjusted by amendment, was not effective (at pp. 14-15):

    The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

    Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.) Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.)

    The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence w s identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.”

    The result of this statutory interpretation was that the Court found the procedure — as written — to interfere with the federal immigration scheme:

    Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.

    The Court also opined on potential 4th Amendment issues with the law, and used that as a second basis for the decision (at p. 16):

    Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification.

    Similar reasoning was used in striking the provisions as to status checks during stops (short of arrest).

    The decision has to be viewed as a near complete victory for opponents of the law, as it restricts the state from routine and compulsory checks of immigration status as a matter of legislative mandate.

    The decision would not, as I read it, prevent police from checking immigration status in a particular case, but would prevent a statewide system to do so.

    The result of the decision will be to have a chilling effect on law enforcement officers who, in the absense of the law, would have checked immigration status based on reasonable suspicion anyway. Enforcement of immigration laws in Arizona, as a result of the decision, will be even more difficult than prior to S.B. 1070.

    The only portions of the law [added: other than those not specifically challenged by the federal government, see pp. 2-3] upheld were:

    A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona


    A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens

    [Note to readers: The analysis above has been adjusted from the original as time permitted a more complete reading of the decision]

    Update: My thoughts on the result, Helplessness and Anarchy

    U.S. v. Arizona – Order on Motion for Preliminary Injunction
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    So state and local cooperation with ICE under 287g and Safe Cities initiative is not constructional nor are the joint drug strike forces. This could open up Pandora's box. Many state laws follow federal laws and they cooperate. A less than brilliant ruling.

    Troll alert: Frederick.

    Professor, what was your final decision on allowing trolls on comment threads? Just wondering…..

    i'm with 'phoenix' on this one: federal law says legal immigrants must carry their i.d. at all times..this judge says that, in arizona at least, they do not have to. maybe i'm just a little thick, but how is that supposed to work?

    If they're "objectively good ideas", LoneWacko, then it should be trivial for you to demonstrate, empirically, their effectiveness.

    You've never been able to do so. Not once, after at least five years of exhorting people to take your suggestions and run with them. You've steadfastly refused to do something as simple as follow your own advice and produce a YouTube video of yourself aggressively questioning an amnesty supporter; never mind show that the clip had some discernable effect on the political conversation.

    The simple reality is that you're a crank and a blowhard whose sole contribution to the immigration debate has been to whine endlessly that other people have failed to properly appreciate your genius. And when someone like me comes along to point this out, you resort to pathetic smears — as if only a supporter of illegal immigration could possibly be critical of your ideas.

    And yes, I read The Painting Corps. It's a hobby blog which has absolutely nothing to do with immigration, illegal or otherwise. How bizarre and nefarious that anybody might have other interests besides illegal immigration!

    CurmudgeonlyTroll | July 29, 2010 at 6:35 am

    The picture I have is that police were and are free to check immigration status after an arrest. However, just because someone is arrested is not reasonable basis to believe they are an illegal immigrant, and you can't have a state law requiring police to investigate persons when there is no reasonable basis for suspicion of a crime. In other words, the judge ruled this is still America, commenters here notwithstanding…amazing how many people are in favor of freedom, except for people they disapprove of.

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