Judge questions need to ban enforcement of Arizona immigration law's 'papers please' provision

A federal judge on Tuesday questioned a bid by a civil rights lawyer who wants a new order blocking the state from enforcing the most controversial provision of its 2010 law aimed at illegal immigrants.

Karen Tumlin of the National Immigration Law Center told Judge Susan Bolton that the “papers please’’ provision of SB 1070 is inherently illegal. It requires police to question who they have stopped about their immigration status if there is reason to believe they are in the country illegally.

And Tumlin said lawmakers had racial motivations in approving the law, and it will have a disparate impact on Hispanics.

But Bolton pointed out that the U.S. Supreme Court just two months ago ruled that she was incorrect in her initial order enjoining the provision even before it was ever allowed to take effect.

In fact, the judge said, what Tumlin and other groups want is the same kind of pre-enactment injunction the high court rejected. The section still remains on hold, as Bolton has yet to dissolve her original injunction in the wake of the Supreme Court ruling.

That high court ruling came in a lawsuit brought by the Obama administration which argued that the provision was in conflict with federal law. The justices unanimously rejected that contention, though they voided some other sections of the statute.

At some point, Bolton will be forced to carry out the Supreme Court’s mandate and say that section of SB 1070 cannot be blocked based on arguments of federal preemption. Tumlin on Tuesday sought to convince Bolton that this case is different.

She said an injunction is necessary because people being questioned by police about their immigration status will be detained beyond the time necessary to deal with the reason they were pulled over in the first place. Tumlin said that is inherently illegal.

More to the point, she noted the issue of the length of traffic stops was never addressed by the high court.

Tumlin also presented Bolton with other arguments that were not part of the first case, including that Arizona lawmakers knew that SB 1070 would have a greater impact on Hispanics than other groups. And she said there were racial motivations behind the legislation.

As proof, she cited statements and e-mails from some legislators, including former state Sen. President Russell Pearce, R-Mesa, the sponsor of the bill. Tumlin said these show the law was enacted to “target and single out a particular national and ethnic group.’’

Bolton said even if she accepts that some lawmakers were racially motivated, that may not matter.

“How many people does it have to be?’’ she asked Tumlin, pointing out SB 1070 was approved by the majority of the House and Senate and signed by Gov. Jan Brewer. “There’s clearly no evidence these majorities had a discriminatory intent.’’

Tumlin conceded the point.

“There are always multiple motives in the passage of laws,’’ she told Bolton. But Tumlin argued that if race is even one of the factors “the law is poisoned by that intent.’’

John Bouma, representing the state, said all the talk about whether Hispanics are disproportionately impacted by the law misses a key point: The law is aimed at those who cross the border illegally.

“Those are the people who cross it most,’’ he told Bolton. “Who else is coming across the border like Hispanics?’’

Bouma said the only test Bolton should consider is if there is a higher percentage of Hispanic border crossers who are detained under SB 1070 than the overall number of people entering the country illegally or remaining after their visas have expired.

Bolton also questioned Tumlin’s contention that SB 1070 will automatically be enforced in a discriminatory fashion.

“Why should I consider that police officers will ignore the obligations under the Constitution and racially profile?’’ she asked.

Tumlin responded that SB 1070, by its own terms, allow race to be used as one factor when an officer decides whether to detain someone for further questioning.

Bolton did not indicate when she would rule on the request. But the judge did give a more receptive ear to a challenge to another provision of SB 1070.

That section creates a separate state crime for someone to transport, harbor, conceal or shield an illegal immigrant, or encourage or induce an illegal immigrant to come to or live in Arizona.

Two years ago Bolton rejected a bid by the Obama administration to enjoin that provision as preempted by federal law. The judge said the law “does not attempt to regulate who should or should not be admitted into the United States.’’

On Monday, though, the 11th Circuit Court of Appeals upheld an injunction against a nearly identical Georgia law. Bolton said while that new ruling is not binding on her -- Arizona is in the 9th Circuit -- she called it “respectable.’’

But Bouma said foes to SB 1070 have the same problem in seeking an injunction here as they do with the other challenged section of the law: They need to demonstrate “irreparable harm’’ if the law would be allowed to take effect.

And Bolton pointed out to Tumlin that the provision on transporting and harboring illegal immigrants has technically been in force for more than two years.

“We don’t know of any instance ... where anybody has been arrested, let alone charged, under that statute,’’ the judge said.

Tumlin responded that people still could be under “imminent threat’’ of prosecution despite the lack of enforcement so far. Anyway, she said the state has not shown any harm to it if the law is placed on hold while a case determining its legality makes its way through the court system.