SB 1070 Ruling

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A recent ruling by a federal judge upheld the controversial “papers please” portion of SB1070. Local immigration attorney Elizabeth Chatham of Osborn and Maledon will explain the ruling.

TED SIMONS: Coming up next on "Arizona Horizon," a recent ruling upholds the papers please provision of Arizona's S.B. 1070. Also tonight, the city of Phoenix considers regulating drones. And we'll show you the musical side of a former state attorney general. Those stories next on "Arizona Horizon."

VIDEO: "Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

TED SIMONS: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. U.S. District Judge Susan Bolton recently upheld a key provision of Arizona's Senate Bill 1070. The federal judge also dismissed a challenge that claimed that the law was enacted for racially discriminatory purposes. Here to talk about what the judge ruled and why is immigration attorney Elizabeth Chatham. Good to have you here, good to see you again.

ELIZABETH CHATHAM: Thank you.

TED SIMONS: What exactly did the judge rule?

ELIZABETH CHATHAM: I know. It's what makes the news is show me your papers. And some people consider that to be the heart of the S.B. 1070 bill. And what that means is law enforcement officials, they can make a reasonable stop because they believe that someone has broken a traffic violation or broken the law and during that stop, they can detain that individual to confirm or verify or inquire about their immigration status.

TED SIMONS: But the stop has to be for something other than I'm wondering about immigration status, correct?

ELIZABETH CHATHAM: Absolutely, it has to be a stop based on some sort of violation. They must have done something, their action may have caught the attention of a law enforcement person because they were driving and they made an illegal turn or speeding or usually it's in the context of traffic citations and they must identify why they're being stopped. The law enforcement agent has to go and identify the reason for the stop, and then they can inquire about the person's immigration status.

TED SIMONS: And they can inquire if they have a "reasonable suspicion" or they can inquire just to inquire?

ELIZABETH CHATHAM: Well, when you make a traffic stop, they usually will ask you for your driver's license and they'll ask you for insurance. And if you cannot produce that identification document, then it can lead into the questions about immigration status.

TED SIMONS: Okay. So what was the judge's reasoning to go ahead and uphold that?

ELIZABETH CHATHAM: Because the plain language of this provision of S.B. 1070 doesn't appear that it would be discriminatory to anyone. It should be equally and evenly applied to anyone that gets stopped. But the reality is when you look at who is in our state and what countries they come from you know, the vast majority are Latino. And that was not taken into consideration in this decision. Both the federal court, judge Bolton as well as the U.S. Supreme Court, I think they both are agreeing that there might be an opportunity for this issue to become ripe in the future. So if someone is stopped and they feel that they're being stopped for an unreasonably long period of time or they don't feel that they were told why they were being stopped, what the legal basis was for the stop, a traffic violation or they appeared to be jaywalking, if they are not told why they're being stopped then they can make a claim that law enforcement is not appropriately enacting S.B. 1070.

TED SIMONS: Now explain please because the Supreme Court already dealt with this and yet it's back still with the district court. What's going on?

ELIZABETH CHATHAM: The U.S. Supreme Court enjoined certain aspects of 1070 and said you cannot proceed, it's preempted by federal law. But the one piece they did not preempt was show me your papers and they did go into some details about when it would be inappropriately applied but these were speculative and no one knew how it was going to be enforced. And even if you look at law enforcement agencies throughout the state, they're a little inconsistent on whether or not they feel it's important to inquire about immigration status. I think that there are you know, some other issues that are important to look at when you look at law enforcement and whether or not they should be enforcing or looking into immigration or federal law. On the one hand there seems to be a burden on the person that is the victim or the immigrant to explain and show and demonstrate that their constitutional rights have been violated when you have a law like 1070 in effect. And that may be a difficult claim for someone to make. It's a high burden that they're going to have to meet and that doesn't really seem to be in the analysis, in the decision, that judge Bolton issued. I think the other issue that also is important is that there's a sense of trust you need to have with your law enforcement officers and agencies and the last couple of years, I feel like the general public has lost some faith in law enforcement and some of the rogue officers and their actions that have been taken, and I think that there's a level of apprehension with the immigrant community and how law enforcement officers are going to implement 1070.

TED SIMONS: Back to the judge, though, and her decision and her ruling. She also rejected the idea that the law was enacted for racially discriminatory purposes.

ELIZABETH CHATHAM: That's correct.

TED SIMONS: Her reasons?

ELIZABETH CHATHAM: Well, because the plain language of the -- it requires a valid stop. So you can't just look at someone and have physical identifiers and say I'm going to stop this person, they seem to look like an immigrant that doesn't have papers or a criminal. You have to have a legal basis for the stop, and then only once you make the stop and, you know, go through the procedures of inquiring about whether they have identity documents, at that point, can you make an inquiry further about status. So upon the plain reading of the law, it seems like it should be applied to everybody equally.

TED SIMONS: Yeah. All right. So we've got those two, that's kind of the two major ones there, but the judge did uphold the idea of the day laborers and the removable offense that was upheld, as well. I think we understand about day laborers blocking traffic, that sort of thing. Again, the ban, they got rid of that but the removable offense failed, as well. What does that mean?

ELIZABETH CHATHAM: They were saying that only the federal law enforcement agency has the right to enforce crimes and remove people from the United States. It's not a decision that a state or city official can make. They can only, you know, make determinations about whether they can be charged for violating state or city crimes. But this is going beyond that and saying well I'm aware that this particular identity theft or identity fraud, state violation, can make you removable. That was not -- that was the danger and that's not what the judge felt was appropriate for state officials to make. And then secondly, I think the day laborer provision, that was a First Amendment issue, what was exceeding the rights that people have to coerce, to talk, to potentially have a job, and there are other traffic ordinances that are available that they could have violated. So when you look at the impact, the criminal nature of not just the day laborer, but the motor vehicle operator that would be stopping, it was not proportional to existing traffic ordinances.

TED SIMONS: We've got 10, 15 seconds left. It sounds like most of S.B. 1070 in its original form survives.

ELIZABETH CHATHAM: Well, I think it's really the most controversial part that did survive and I don't think this is the end of this five-year litigation that's been going on. I don't think this is the end of it. I think we're going to see some more.

TED SIMONS: Someone held too long and back to the courts they go.

ELIZABETH CHATHAM: Right, right. They need the facts to be able to bring the next case.

TED SIMONS: Great discussion. Good to have you here, thanks for joining us.

ELIZABETH CHATHAM: Thank you so much.

Elizabeth Chatham: local immigration attorney with Osborn and Maledon

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