Federal court ruling could hamper active part of SB 1070 - East Valley Tribune: Arizona

Federal court ruling could hamper active part of SB 1070

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Posted: Sunday, September 18, 2011 1:30 pm

A new federal court ruling striking down a law aimed at day laborers could undermine a provision of a year-old Arizona law aimed at illegal immigrants, one which is now in effect.

One provision of last year's SB 1070, the broad-based measure aimed at illegal immigrants, has a provision designed to make it illegal to stand on a street corner to solicit work. The language is similar to the Redondo Beach, Calif., ordinance that the 9th U.S. Circuit Court of Appeals struck down on Friday.

The Arizona statute has some key differences.

But it is based on a 1984 Phoenix ordinance which was designed to make it illegal for pedestrians to approach and solicit drivers and passengers and vehicles stopped at red lights.

In a 1986 ruling, the 9th Circuit had upheld the legality of that Phoenix law, calling it "a reasonable, time, place and manner regulation which preserved the city streets for safe and peaceful use by motorists when the streets are open to traffic.''

But appellate Judge Milan Smith Jr., writing Friday's majority opinion, said it now appears that the Phoenix ordinance -- like the one the court voided Friday in Redondo Beach -- is far too broad.

Smith said laws which govern what people can do in public places -- including soliciting for work -- can interfere with an individual's First Amendment rights. He said such measures are legal only when they are crafted in the narrowest possible fashion to meet the legitimate governmental interests.

That, said Smith, is not the case here. He said the Redondo Beach ordinance is so broad that it would make criminals out of school children shouting "carwash'' at passing vehicles.

More to the point, he said the fact that city officials said they would not enforce the law that way is irrelevant. And that, in turn, led the court to conclude that its 1986 ruling on the broad-based Phoenix ordinance was also in error because, like the Redondo Beach measure, it could be applied to more than just people stopping traffic.

Despite that, the wording of the section of SB 1070 might be sufficiently different to keep it legal.

The Arizona law, unlike the Phoenix and Redondo Beach measures, does not apply to all forms of solicitation. Instead, it makes it a crime only for someone to get into a vehicle to do work elsewhere ``if the motor vehicle blocks or impedes the normal movement of traffic.''

Rep. John Kavanagh, R-Fountain Hills, who came up with that language, said he believes a court would consider that sufficiently narrow to address the legitimate problem of traffic without interfering with the rights of others to conduct other activities on city streets and sidewalks.

So far, there has not been a serious challenge to that provision of SB 1070.

In filing suit last year, the U.S. Department of Justice had asked U.S. District Court Judge Susan Bolton to put most of the provisions of SB 1070 on hold.

But Bolton, in issuing an injunction against key elements of the law, refused to halt enforcement of the section aimed at day laborers. That came after attorneys for the federal government conceded during the hearing that 9th Circuit rulings up to that point -- including an earlier decision in the Redondo Beach case by a three-judge panel -- concluded that such laws were permitted.

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