Court: Police officer has no legal right to challenge SB 1070 - East Valley Tribune: Arizona

Court: Police officer has no legal right to challenge SB 1070

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Posted: Friday, December 2, 2011 10:41 am | Updated: 3:12 pm, Fri Dec 2, 2011.

A Tucson police officer has no legal right to challenge last year's tough state law aimed at illegal immigrants, a federal appeals court ruled Thursday.

In a unanimous decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected arguments by Martin Escobar that SB 1070 puts him in the untenable position of being disciplined for refusing to enforce a law he believes to be illegal or enforcing the law or being subject to lawsuit for violating the civil rights of others.

The judges also said that Escobar's status as "a Hispanic residing in Arizona" does not give him the right to challenge the law.

Nothing in Thursday's ruling affects a separate challenge to the law brought by the U.S. Department of Justice. U.S. District Court Judge Susan Bolton, who is hearing both cases, already has issued an injunction barring the state from enforcing key provisions of that law until there can be a trial.

That includes two sections that Escobar is challenging.

One requires police who have stopped, detained or arrested someone for any reason to make a reasonable attempt to determine that person's immigration status if there is "reasonable suspicion" that person is in this country illegally. The other allows police to make warrantless arrests if there is a belief the person has committed any offense that allows them to be removed from the United States.

The U.S. Supreme Court is expected to make a decision, possibly as early as this coming week, whether to review Bolton's order.

But, injunction or not, that still leaves the need for an actual trial on the legality of the law, one that Escobar hoped to challenge along with the federal government.

In their unsigned order, the appellate judges said there are no legal grounds for Escobar to sue based on his perceived dilemma.

They cited a similar situation where officials in a California city challenged development regulations enacted by a regional planning board.

There, city council members said they were required by law to enforce the challenged regulations and refusal could result in criminal penalties. But they argued that enforcing the rules would violate their oaths to uphold the U.S. Constitution and expose them to civil liability.

But in that case - and here - the judges said that any fears of being sued for enforcing the law are purely speculative.

The judges were no more persuaded that Escobar's Hispanic status, absent more, gave him a right to sue. They said nothing in his complaint shows that he has been or is threatened with any sort of injury because of the law.

"Mere conclusory allegations are not enough to establish the concrete and particularized injury required for standing," they wrote.

Stephen Montoya, one of the attorneys in the case, said he disagrees with the court's ruling. But he called it "irrelevant" as long as the injunction remains in place against the law's enforcement.

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