Friday, July 23, 2010

SB 1070 hearings: injunction likely.

No transcripts of today's two District Court hearings concerning motions for preliminary injunction of SB 1070 are yet available, nor was a video or audio recording made. Preliminary reports are up on the websites of the Arizona Daily Star and Arizona Republic.

It's pleasing to see a hard-hitting judge assigned to the case, and from the nature and tone of questions, it appears that at least portions of the law will be enjoined, although "when" and "how much" is still up in the air.

From the Republic:
The other part of this section of the law that was addressed was the portion that states that any person arrested must have his or her immigration status determined before he or she can be released.

Bolton asked Bouma whether lawmakers really intended that anyone arrested, regardless of his or her legal status or whether the arrest involved citing and releasing someone on the spot or booking him or her into jail, had to have immigration status determined before being released from jail.

Bouma gave her several different answers at different points in the day.

He first said that U.S. citizens don't have an "immigration status" and therefore SB 1070 wouldn't apply to them. He also said that part of the law was intended to follow the part allowing officers to ask someone about their legal status, which means it would apply only to individuals suspected of being in the country illegally.

"But (police) training materials specifically acknowledge that they don't know what it means and that it will be left up to each agency to decide what that sentence means," Bolton replied, adding that she had heard from some law-enforcement authorities that this portion of the law could lead to the arrest of tens of thousands of people who otherwise would have just been cited and released.
and from the Daily Star:
One section of the law that appeared to trouble the judge says people who get arrested, for any reason, must have their immigration status checked with federal officials before they are released.

She pointed out police "arrest" people all the time for minor crimes, issue them a citation and let them go about their business. Bolton said this provision of SB 1070 would appear to require police to hold people for some extra period of time beyond what is necessary to cite and release.

Bouma said lawmakers meant to apply that only to people who actually are booked into jail.

"That's what they should have said then," Bolton responded.
Classic. "What we meant to say is...". Ordinarily that doesn't even pass the laugh test, but Arizona legislators' sloppiness with language and general ignorance are notorious. (Anyone remember the wording of the "No Taxpayer Money for Politicians" initiative, written by a few legislative heavyweights?)

It looks as though Dave Euchner's amicus brief, which pointed out the prospect for extension of detentions without probable cause, had a bit of impact there, and that the Judge Bolton is a bit hostile to that portion of the law. Also, from the Republic,
Section 3: Documentation

Section 3 of SB 1070 as amended creates the state crime of "willful failure to complete or carry an alien registration document."

Attorney Nina Perales with the Mexican American Legal Defense and Educational Fund, one of the civil-rights groups that filed the lawsuit along with the ACLU, said this portion of the law creates new classes of non-citizens because it doesn't offer exceptions for individuals who may be in the midst of citizenship or asylum proceedings and have permission to be in the country but don't yet have documents.

Bouma responded that that argument gets into a hypothetical "chamber of horrors" that people would be hauled off and thrown into jail to wait until someone could determine whether they belonged there.

Bolton agreed that all this portion of the law does is create a state punishment for violating federal statute. But she added that state punishment may create a pre-emption problem.

Bouma argued otherwise but then seemed to concede that he may lose on this part of the law.

"I didn't have the feeling I convinced you last week, either," Bouma said, referring to an earlier hearing.

Section 6: Removal

Section 6 of SB 1070 as amended allows law-enforcement officers to, without a warrant, arrest people suspected of committing offenses that make them "removable from the United States."

Bolton seemed to have serious concerns about this portion of the law. She said there is no list of crimes deemed to be removable offenses and questioned who would make that determination and at what point during the arrest it would be made.

"How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?" she asked.

Plaintiffs appeared to be taking a "shotgun" approach concerning preemption, and Bolton was skeptical or even dismissive of many such claims, but as seen above, some of the pellets appear to have hit their target. Right now I'm expecting portions of the law, including prolonged detention following arrests, to be enjoined pending the cases' outcomes.

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