AZ Judge Will Not Block All of SB1070 State Immigration Law

Yesterday, Arizona District Judge Susan Bolton indicated that she would not strike down Sb1070 in its entirety but rather focus in on a couple of the measures and decide whether those were unconstitutional.

There are 14 sections of SB1070.

Judge Bolton intends to examine the legality of three sections in particular:

1. The Enforcement Arrest Section

2. The Documentation Section

3. Removal Section

It is possible that the Judge, will strip out the most pernicious parts of the law without striking the whole thing

The judge could strike down a federal injunction, but strip out the portions of the law that could create instances of racial profiling, then allow the law to go into effect in a new modified form.

The Arizona Republic has the full story here:

(District Judge Susan) Bolton held hearings Thursday on two of the highest-profile legal challenges to Senate Bill 1070, making attorneys on both sides of the aisle sweat as she challenged their legal arguments and forced them to focus on specific portions of the law.

She didn't issue a ruling, and it is unknown when she will. But the clock is ticking toward next Thursday, when the law goes into effect.

Bolton did make one thing clear: She has no intention of invalidating the entire law but is considering halting the enactment of a handful of its 14 sections.

In the hearing Judge Bolton noted that she did not consider SB1070 to be a statute, but rather a combination of several new laws and amended works.

She cited three sections of SB1070 in particular that she would examine and put forth for legal debate:

Section 2: Enforcement, arrest

There are two parts of this section of the law that Bolton and the attorneys debated.

The first prohibits state and local government from restricting law enforcement from enforcing federal immigration law to the fullest extent permitted by federal statute.

Bolton asked ACLU attorney Omar Jadwat and later Department of Justice attorney Edwin Kneedler why the state should not be allowed to require all local law enforcement to enforce federal immigration law.

"Why can't Arizona be as inhospitable as they wish to people who have remained and entered the United States illegally?" the judge asked. "Who am I to stop the state of Arizona?"

But she also held the state's lawyer, John Bouma, to the fire with questions about whether this portion of the state law pre-empts federal law. Bouma said it did not.

"Law-enforcement officers have been enforcing federal immigration laws for years," he said.

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.

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.

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.

We will be following this closely, check back for more as it develops.