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Arizona SB 1070‎, Legal Challenges and Economic Realities

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Arizona’s harsh immigration enforcement law, "Support Our Law Enforcement and Safe Neighborhoods Act" (SB 1070, amended by HB 2162) inter alia, requires state and local law enforcement agencies to check the immigration status of individuals it encounters and makes it a state crime to be without 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

COURT ENJOINS PARTS OF SB 1070

United States v. State of Arizona, No. 10-01413 (D. Ariz. prelim. Injunction granted July 28, 2010) appeal docketed, No. 10-16645 (9th Cir. July 29, 2010)

Most recent developments:

On July, 28, 2010, the day before SB 1070 was scheduled to go into effect, the district court enjoined several of the most controversial parts of the law. Specifically, the court issued a preliminary injunction stopping enforcement of the following provisions:

  • requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person,
  • creating a crime for the failure to apply for or carry alien registration papers,
  • creating a crime for an unauthorized alien to solicit, apply for, or perform work, and
  • authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Read the court's order.

Arizona filed an interlocutory appeal of this decision in the Ninth Circuit Court of Appeals. The Ninth Circuit denied Arizona’s request to expedite this case beyond the normal rules governing appeals of preliminary injunctions. Briefing will take place between August and October, 2010, and the court will hear argument the first week of November.

Background on the Suit:

As way of background, the district court issued the preliminary injunction in the case brought by the United States, on its own behalf and on behalf of the Department of Homeland Security, the Department of Justice and the Department of State. The United States is arguing 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 legislates in 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 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, inter alia, 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 1-6 of SB 1070 are invalid; a preliminary and permanent injunction prohibiting the enforcement of sections 1-6 of SB 1070; and costs and other relief the court deems just and proper.

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 S.B. 1070. The complaint alleges that S.B. 1070 is pre-empted 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 S.B. 1070 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.”

Class Action Challenges Constitutionality of SB 1070
Friendly House v. Whiting, No. 10-1061 (D. Ariz. filed May 17, 2010)

Several organizations, including, inter alia, 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 Arizona Law, SB 1070.

The complaint 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, the 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 is unconstitutional because it 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. (see link below 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 July 22, Judge Bolton will hear oral arguments on plaintiffs’ motion for a preliminary injunction, defendant counties motions to dismiss and intervenor defendant Governors Brewer’s motion to dismiss.

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 Arizona law, 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.

Escobar v. Brewer, No. 10-00249 (D. Ariz. filed Apr. 29, 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 S.B. 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.

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 Arizona law, 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, Briefing Schedule, and Hearing Date, asking the court to allow them to brief, argue and obtain a preliminary ruling from the court regarding the enforceability of SB1070 before it goes into effect on July 29, 2010.

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. 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.

Frisancho v. Brewer, No. 10-00926 (D. Ariz. filed Apr. 27, 2010)

A U.S. citizen resident of the District of Columbia who plans to visit Arizona brought a pro se lawsuit challenging Arizona law, SB 1070. The complaint alleges due process violations of both the United States and Arizona constitutions and alleges federal constitutional 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.”

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
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