Before leading the way for other states to pursue immigration laws, Arizona passed a ban on human smuggling in 2005 that has led to more than 2,100 arrests and drawn criticism for a tactic in which people who pay to be sneaked into the country are charged as conspirators to the crime.
Seventy-five percent of the people charged under the smuggling law in the state's largest county since 2008 have been charged with conspiring to sneak themselves into the country, drawing complaints from immigrant rights advocates that the statute was intended for often-violent smugglers, not their customers.
"It's just a misuse of the law," said Antonio Bustamante, one of the attorneys pushing the lawsuit.
A lawsuit that seeks to bar such conspiracy prosecutions is intensifying as lawyers for the state's biggest county recently asked a judge to throw out the case and immigrant rights advocates seek class-action status that would let any person charged with conspiracy under the smuggling law to join the case.
The smuggling law was passed in 2005 as lawmakers responded to voter frustration over Arizona's role as the nation's busiest immigrant smuggling hub. It marked Arizona's second major immigration law and was followed in 2010 with a wide-ranging law that required police to make immigration checks in certain cases and inspired similar laws in Alabama, Georgia, Indiana, South Carolina and Utah.
The U.S. Supreme Court upheld the 2010 law's requirement that officers, while enforcing other laws, question the immigration status of those suspected of being in the country illegally. But the nation's highest court barred police from enforcing other parts of the law, including a requirement that immigrants obtain or carry immigration registration papers.
Lawyers challenging the Arizona conspiracy prosecutions say the policy of charging smuggling customers with conspiracy is trumped by federal immigration law. Attorneys defending Maricopa County prosecutors and Sheriff Joe Arpaio against the lawsuit say the tactic doesn't conflict with federal law and pointed out that Arizona law allows people to be convicted of conspiracy, even when they can't be convicted of the crime itself.
"The policy has nothing to do with the entrance, or residence, of aliens unlawfully into this country," Tim Casey, attorney for the county officials, said in court records. "The policy regulates only criminal conduct involving the smuggling of illegal aliens." Casey didn't return calls seeking comment.
Several weeks after the smuggling law took effect in August 2005, Maricopa County's then-top prosecutor issued a legal opinion that said illegal immigrants suspected of using smugglers can be charged as conspirators in smuggling cases.
Despite the heavy criticism from immigrant rights advocates, state courts upheld the legal interpretation of then-Maricopa County Attorney Andrew Thomas. Still, opponents have continued opposing the conspiracy approach in federal court.
Since 2008, Maricopa County prosecutors have charged more than 2,100 people under the smuggling law. Twenty-five percent were charged as smugglers, while the remainder was charged with conspiracy under the human smuggling law.
The federal challenge was dismissed, but was revived in July 2010 when an appeals court ruled that a lower-court judge erred in dismissing organizations and taxpayers who challenged the prosecution tactic.
The remaining challengers are the Arizona Hispanic Community Forum, the Hispanic civil rights group Somos America, Democratic state Sen. David Lujan of Phoenix and Arizona State University professor LaDawn Haglund.
They aren't seeking money damages and instead are asking a judge to declare the policy unconstitutional and to bar county prosecutors and Arpaio's agency from bringing conspiracy cases under the smuggling law.