lulac, et al. v state of az (immigration) - 30 - response to motion re 27 motion to dismiss for lack...

8/8/2019 LULAC, et al. v STATE OF AZ (Immigration) - 30 - RESPONSE to Motion re 27 MOTION to Dismiss for Lack of Jurisdicti

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- ii -

Plaintiffs counsel continued:

RAY VELARDE, ESQ. (Texas Bar No. 20539950)1216 Montana

El Paso, TX 79902Telephone: (915) 373-6003

T. ANTHONY GUAJARDO (Bar No. AZ021500)Law Office of T. Anthony Guajardo2001 E. Campbell, Suite #202Phoenix, AZ 85016Telephone (602) 544-0607Facsimile: (602) [email protected]

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Case 2:10-cv-01453-SRB Document 30 Filed 10/11/10 Page 2 of 26


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OUTLINE OF CONTENTS

I INTRODUCTION ............................................................................................................................

II PLAINTIFFS PROPERLY ALLEGE STANDING . .................................................................................

A Plaintiff taxpayers have standing to challenge the diversion of localtaxes to enforce SB 1070...........................................................................................

B Plaintiff LULAC has properly pleaded direct organizational standing...................... 3

C Undocumented immigrants whose presence is known to federalauthorities are targets of S.B. 1070 and have standing. ........................................ 5

D Plaintiffs satisfy prudential standing requirements..................................................... 7

II PLAINTIFFS HAVE STATED A COGNIZABLE PREEMPTION CLAIM . .................................................

A S.B. 1070 is an impermissible state effort to regulate immigration............................ 8

B S.B. 1070 intrudes into a field federal law fully occupies. ............................................ 9

C S.B. 1070 actually conflicts with federal law................................................................ 12

III PLAINTIFFS HAVE ALLEGED A COGNIZABLE VIOLATION OF THE COMMERCE CLAUSE ............13

IV PLAINTIFFS HAVE STATED VIAB LE DUE PROCESS CLAIM .........................................................14

V PLAINTIFFS HAVE STAT ED VIABL E EQUAL PROTECTION CLAIM ................................................16

VI PLAINTIFFS HAVE STATED A VIABLE DUE PROCESS VAGUENESS CLAIM . ................................17

V CONCLUSION ............................................................................................................................1



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TABLE OF AUTHORITIES

Cases

AFGE Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007).................................................................4 Allee v. Medrano, 416 U.S. 802 (1974) ..........................................................................................7

Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007)..........................................................................2

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)..........................................................................6

County of Los Angeles v. Davis, 440 U.S. 625 (1979)....................................................................4

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)...................................................................2

De Canas v. Bica, 424 U.S. 351 (1976)...........................................................................................7

Dist. of Columbia Common Cause v. District of Columbia, 858 F.2d 1 (D.C. Cir.1988)..................................................................................................................................2

District of Columbia Common Cause v. District of Columbia, 858 F.2d 1 (D.C. Cir.1988)..................................................................................................................................3

Doremus v. Bd. of Educ. of Boerough of Hawthorne, 342 U.S. 429 (1952)......................................2

El Rescate Legal Services, Inc. v. Executive Office of Immigration, 959 F.2d 742 (9thCir. 1992)...........................................................................................................................4

Friendly House, et al. , v. Whiting, et al., No. CV 10-1061-PHX (D. Ariz. October8, 2010)..............................................................................................................................1

Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983)...............................................................9

Grove v. Mead School District No. 354, 753 F.2d 1528 (9th Cir.), cert. denied, 474U.S. 826 (1985) ..................................................................................................................2

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ..................................................................3

La Duke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)........................................................................7League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 769 (C.D. Cal.

1995)..................................................................................................................................9

League of United Latin American Citizens v. Wilson, 997 F. Supp. 1244 (C.D. Cal.1997)................................................................................................................................10

Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989) .........................................................8



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Lozano v. City of Hazleton, supra, 2010 U.S. App. LEXIS 18835 ..................................................9

Lozano v. Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), affd Lozano v. City of Hazleton, supra, 2010 U.S. App. LEXIS 18835................................................................10

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)...............................................................4

Massachusetts v. Mellon, 262 U.S. 447 (1923) ..............................................................................2

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .........................................................................9

Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................8

Pub. Citizen v. Dept of Transp. , 316 F.3d 1002 (9th Cir. 2003)...................................................1

System Federation No. 91 v. Wright , 364 U.S. 642 (1961).............................................................5

Takahashi v. Fish & Game Com., 334 U.S. 410 (1948)....................................................................8Tillison v. City of San Diego, 406 F.3d 1126, 1129 (9th Cir. 2005)................................................8

Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000)...................................................................1

United States v. Arizona , 703 F. Supp. 2d 980, at *35-*36 (D. Ariz. 2010)..................................2

United States v. New York , 972 F.2d 464 (2d Cir. 1992)..............................................................3

USA v. State of Arizona, et al., No. 10-16645 (9th Cir.)...............................................................5

Warth v. Seldin , 422 U.S. 490 (1975) ............................................................................................3Winn v. Ariz. Christian Sch. Tuition Org. , 562 F.3d 1002 (9th Cir. 2009)...................................3

Ybarra v. San Jose, 503 F.2d 1041 (9th Cir. 1974).......................................................................3

Other authorities

ARIZ. CONST . art IV, pt 1, 1(3)..................................................................................................4

Ariz. Rev. Stat. 11-1051 ............................................................................................................2

Ariz. Rev. Stat. 11-1051(B)........................................................................................................9

Ariz. Rev. Stat. 11-492 ..............................................................................................................2

Ariz. Rev. Stat. 13-1509 ..........................................................................................................10

Ariz. Rev. Stat. 13-2928(C)..................................................................................................... 10



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Ariz. Rev. Stat. 13-2319 and 13-2929 ...................................................................................10

8 U.S.C. 1324(a).......................................................................................................................10

8 U.S.C. 1324a .........................................................................................................................10

8 U.S.C. 1357 .............................................................................................................................9

8 U.S.C. 1357(g) (1)(9)...........................................................................................................11

8 U.S.C. 1101, et seq.................................................................................................................9

8 U.S.C. 1306(a) and 1304(e) ................................................................................................10

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OPPOSITION TO MOTION TO DISMISS

I INTRODUCTION

This action seeks to enjoin enforcement of certain sections of the Support Our Law

Enforcement and Safe Neighborhoods Act, as amended (SB 1070 or the Act) on the

grounds that 1-6 of the Act are preempted by federal law, 5 violates the Commerce

Clause, and 1-6 deny due process and equal protection.

Janice K. Brewer and the State of Arizona (Defendants) move to dismiss plaintiffs

complaint because plaintiffs allegedly lack standing and the complaint allegedly fails to state

a claim upon which relief may be granted. Motion to Dismiss (Motion) at 1.

On a motion dismiss, whether plaintiffs have standing turns solely on the allegations

of the complaint. Warth v. Seldin , 422 U.S. 490, 501 (1975).

The individual plaintiffs are immigrants who allege their presence is known to

federal authorities, yet they have no proof of lawful presence and have not registered

under 8 U.S.C. 1302. S.B. 1070 clearly singles them for interrogation, detention, and arrest,

and they need not await actual injury before suing to enjoin that very injury.

Assuming, arguendo, that the individual plaintiffs were to lack standing, plaintiff local

taxpayers have standing to sue to enjoin defendants diverting local tax revenue to enforce

S.B. 1070, and plaintiff LULAC may sue to protect its organizational interests. Friendly

House, et al. , v. Whiting, et al., No. CV 10-1061-PHX (D. Ariz. October 8, 2010), at 4-5

(Friendly House Order) (Where claims are raised by one plaintiff who has standing, the

court need not determine whether other plaintiffs asserting the same claims also have

standing.). Defendants attack on plaintiffs standing should accordingly be rejected.

Insofar as plaintiffs substantive allegations are concerned, this Court has elsewhere

ruled that the United States is likely to succeed on the merits of its claim that S.B. 1070 is



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preempted at least in substantial part. United States v. Arizona , 703 F. Supp. 2d 980, at *35-*36

(D. Ariz. 2010) ( USA Order). Defendants offer no reason the Court should reverse course;

their motion to dismiss for failure to state a claim should be denied.

II PLAINTIFFS PROPERLY ALLEGE STANDING .

A Plaintiff taxpayers have standing to challenge the diversion of local taxes toenforce SB 1070.

Defendants challenge the standing of plaintiffs Ochoa and Candelaria, taxpayers who

seek to enjoin defendants diverting county and municipal tax receipts to enforce S.B. 1070.

Complaint at 14-15. Defendants argue that taxpayers generally lack standing to

challenge the expenditure of federalor state taxes, and plaintiffs therefore lack standing to

oppose the use of local taxes to enforce S.B. 1070. bvg Defendants argument is without

merit.

Case law distinguishes three types of taxpayer standing: federal, state, and local or

municipal. Grove v. Mead School District No. 354, 753 F.2d 1528, 1532 (9th Cir.), cert. denied,

474 U.S. 826 (1985). Payment of federal or state taxes generally confers no standing. Doremus

v. Bd. of Educ. of Boerough of Hawthorne, 342 U.S. 429, 433 (1952) (federal taxes);

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006) (state taxes). Localtaxpayers, in

contrast, do have standing to challenge the expenditure of local taxes. See generally Dist. of

Columbia Common Cause v. District of Columbia, 858 F.2d 1, 3-8 (D.C. Cir. 1988). 1

1 In Massachusetts v. Mellon, 262 U.S. 447 (1923) the Supreme Court held that a municipaltaxpayers relationship to the municipality is direct and immediate such that the taxpayersuffers concrete injury whenever the challenged activity involves a measurableappropriation or loss of revenue.



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Plaintiffs Ochoa and Candelaria pay taxes into the county treasury. Ariz. Rev. Stat.

11-492. Arizonas counties must expend taxpayer funds to enforce S.B. 1070. 2

Defendants nevertheless insist that even local taxpayer standing is limited to claims

brought under the Establishment Clause. Motion at 4-5. Defendants offer no actual

authority for so limiting taxpayer standing, for there is none. 3

To the contrary, courts have recognized municipal taxpayer standing to bring non-

Establishment Clause claims. E.g., United States v. New York , 972 F.2d 464, 466 (2d Cir. 1992)

(taxpayer standing to challenge no-bid contracts); District of Columbia Common Cause v.

District of Columbia, supra, 858 F.2d at 5 (taxpayer standing to challenge to expenditures

related to initiative). Defendants cite no contrary precedent; this Court should accordingly

reject defendants challenge to plaintiff taxpayers standing.

B Plaintiff LULAC has properly pleaded direct organizational standing.

Defendants next challenge LULACs standing to sue for injuries S.B. 1070 visits upon

its organizational interests. 4

2 See, e.g., Ariz. Rev. Stat. 11-1051 (For any lawful stop, detention or arrest made by a lawenforcement official or a law enforcement agency of ... a county, city, town or other politicalsubdivision of this state ... where reasonable suspicion exists that the person is an alien and isunlawfully present in the United States, a reasonable attempt shall be made .... to determinethe immigration status of the person... (emphasis added)).

3 Defendants rely on Winn v. Ariz. Christian Sch. Tuition Org. , 562 F.3d 1002, 1008 (9th Cir.2009), for the proposition that municipal taxpayers have standing only to bringEstablishment Clause claims. But in Winn the Ninth Circuit affirmed the standing of state taxpayers to challenge an expenditure of state taxes in violation of the Establishment Clause.562 F.3d at 1002. The court of appeals nowhere considered, much less disallowed, local taxpayer standing to bring non-Establishment Clause claims.

4 Defendants do not deny that plaintiff LULAC could allege standing, but rather fault thecomplaint for failing to detail the particular resources that would be diverted and thespecific manner in which [LULACs] mission would be impaired by S.B. 1070. Motion at 7.At most, defendants argument might warrant a more definite statement. Ybarra v. San Jose,



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[A]n association may have standing in its own right to seek judicial relief from

injury to itself Warth v. Seldin , supra, 422 U.S. at 511. In the leading case on pleading

direct organizational standing, Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the

plaintiff organization alleged as follows:

Plaintiff . . . has been frustrated by defendants racial steering practices in its efforts to[obtain] equal access to housing through counseling and other referral services.Plaintiff . . . has had to devote significant resources to identify and counteract thedefendants [sic] racially discriminatory steering practices.

Id. at 379. The Court held these simple allegations sufficient to plead standing. Id.

Here, LULAC alleges that S.B. 1070 frustrates its goalspromot[ing] and

protect[ing] of the legal, political, social, and cultural interests of Latino people living in the

United Statesand diverts its limited resources to address the injuries faced by Hispanic

residents of Arizona as a result of the imminent implementation of S.B. 1070. Complaint at

13. These allegations are indistinguishable from those courts have held sufficient to

establish standing in numerous cases. 5

Defendants next suggest that LULAC lacks standing because S.B. 1070 is a law notyet in effect. Motion at 7. But S.B. 1070 became law on July 29, 2010, see ARIZ. CONST . art IV,

pt 1, 1(3), and defendants would now be enforcing it were it not for the USA Order .

LULACs standing is hardly undone thereby. Friendly House Order at 9-10 (The alleged

503 F.2d 1041, 1044 (9th Cir. 1974) (lack of detail is not ground for a motion to dismiss, butshould be attacked by a motion for a more definite statement.). In all events, LULACsallegations do suffice to plead organizational standing.5 E.g., El Rescate Legal Services, Inc. v. Executive Office of Immigration, 959 F.2d 742, 748 (9th Cir.1992) (standing to challenge refusal to translate portions of immigration court hearings;policy impaired organizations ability to assist refugees obtain asylum and avoiddeportation); AFGE Local 1 v. Stone, 502 F.3d 1027, 1032-33 (9th Cir. 2007) (labor unionstanding to challenge action that allegedly interfered with [its] ability to solicit membershipand communicate its message.); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992(where, as here, a case is [a]t the pleading stage, general factual allegations of injury resulting from the defendants conduct may suffice, ... (emphasis added)).



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harm to the organizational Plaintiffs will occur if S.B. 1070 goes into effect, regardless of

how it is enforced or applied.). Defendants in essence assert that the USA Order renders

plaintiff LULACs claims moot. A preliminary injunction moots a claim only if it has

completely and irrevocably eradicated the effects of the alleged violation. County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979). Clearly, the USA Order has not irrevocably ended

S.B. 1070: not only are defendants asking the Ninth Circuit to vacate that injunction, USA v.

State of Arizona, et al., No. 10-16645 (9th Cir.), but this Court retains authority to modify or

dissolve it at any time. System Federation No. 91 v. Wright , 364 U.S. 642, 647-48 (1961).

Defendants have fallen far short of carrying their heavy burden of demonstrating

that plaintiff LULACs claims are moot. County of Los Angeles v. Davis, supra , 440 U.S. at 631.

Their motion to dismiss should be denied.

C Undocumented immigrants whose presence is known to federal authoritiesare targets of S.B. 1070 and have standing.

Defendants argue that none of the[] individual[] [immigrant plaintiffs] have alleged

facts showing that they face any meaningful risk of being interrogated, detained or

arrested. Motion at 5. Plaintiffs diagree: These plaintiffs are the explicit targets of S.B. 1070,

and as such they may sue to enjoin its enforcement.

The immigrant plaintiffs in this case share the following characteristics: (1) their

presence is known to federal authorities; (2) federal authorities have their status under

review; (3) none are in federal detention; (4) all reside in Arizona; (5) none have formal

lawful status; (6) none have registered under 8 U.S.C. 1302; and (6) none carry proof of

having registered. Complaint 16-20. That S.B. 1070 targets such individuals cannot be

gainsaid.



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Section 2(B) of S.B. 1070 directs Arizona peace officers to determine an individuals

immigration status during any lawful stop, detention, or arrest where reasonable suspicion

exists that the person is unlawfully in the United States so long as doing so is practicable.

Section 3 of S.B. 1070 provides that a person is guilty of willful failure to complete or

carry an alien registration document if the person is in violation of [8 U.S.C. ] 1304(e) or

1306(a).

Section 5 of S.B. 1070 provides that it is unlawful for a person who is unlawfully

present and who is an unauthorized alien to knowingly apply for work or perform

work as an employee or independent contractor in this state.

Finally, 6 of S.B. 1070 authorizes peace officers to arrest a person without a warrant

upon probable cause to believe that the person to be arrested has committed any public

offense that makes the person removable from the United States.

The immigrant plaintiffs are subject to interrogation, detention, and arrest under S.B.

1070: Each is removable from the United States. Each has failed to complete or carry an

alien registration document. None has been issued any documentary evidence

showing that [they are] authorized to be in the United States. Complaint 16-20.

These plaintiffs are prima facie targets for investigative detention and arrested under

S.B. 1070. Being stopped by local police for traffic or other petty violations is hardly

uncommon. If, as this Court has elsewhere ruled, even lawful residents and U.S. citizens will

be swept up by [these] requirement[s], particularly when the impacts of the provisions

pressuring law enforcement agencies to enforce immigration laws are considered, Order at

19-20, the risk these plaintiffs run is much greater.



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Again, defendants argument boils down to a demand that plaintiffs suffer the

irreparable injury they sue to prevent. Again, a litigant is not required to absorb the very

irreparable injury she or he sues to enjoin. Friendly House Order at 7. 6

In sum, the allegations of the complaint, combined with defendants resolve to

implement S.B. 1070, establish a real and immediate threat sufficient to establish standing. 7

D Plaintiffs satisfy prudential standing requirements.

Defendants further argue that prudential standing considerations warrant dismissal.

Motion at 7. This Court has elswhere rejected an identical argument, Friendly House Order at

12-13; defendants offer nothing new warranting a different result here.

II PLAINTIFFS HAVE STATED A COGNIZABLE PREEMPTION CLAIM .

Defendants next seek dismissal on the ground that the complaint fails to allege

sufficient facts to show S.B. 1070 is preempted.

6 Defendants reliance on City of Los Angeles v. Lyons, 461 U.S. 95 (1983), Motion at 3, ismisplaced. In Lyons, a single individual plaintiff sought an injunction against a suspended policy under which police officers were instructed to use chokeholds only when lesserdegrees of force do not suffice and then only to gain control of a suspect who is violentlyresisting the officer or trying to escape. Id. at 106. The plaintiff claimed that he had beenchoked into unconsciousness without any provocation, and sought to enjoin future use ofthe chokehold. Id. at 106.

The Court, noting it would have to accept the unbelievable assertion that the City eitherorders or authorizes application of the chokeholds where there is no resistance or otherprovocation, id. at 106, held the plaintiffs claim moot because he had failed to show thatthe injury or threat of [repeated] injury [is] both real and immediate, not conjectural orhypothetical. Id. at 101-02 (emphasis added).

For the reasons discussed above, the threat of injury in this case is anything butunbelievable.7 See also Allee v. Medrano, 416 U.S. 802, 812 (1974) (affirming appropriateness of injunctiverelief to combat a pattern of unlawful law enforcement); La Duke v. Nelson, 762 F.2d 1318,1326 (9th Cir. 1985) (distinguishing Lyons and affirming plaintiffs standing to challenge pattern of unlawful detentions flowing from INSs standard ranch and farm practices).



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impermissibly regulate immigration so long as it avoids determining who should be

admitted into the country or deported. Motion at 9.

First, nowhere in De Canas does the Court embrace such a narrow view of what it

means to regulate immigration. Indeed, the cases De Canas relies on posit a far more

pragmatic definition of regulation than defendants prefer. 9 Lower courts have

accordingly held that states impermissibly regulate immigration when, for example, they

require state officials to report suspected illegal immigrants to state and federal

authorities League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 769 (C.D. Cal.

1995). Or when they preclude unauthorized aliens from renting housing within city limits.

Lozano v. City of Hazleton, supra, 2010 U.S. App. LEXIS 18835 at *141-42.

Second, defendants identify no purpose for S.B. 1070 other than forcing alleged

unauthorized entrants to leave. S.B. 1070 has far more than a purely speculative and

indirect impact on immigration... DeCanas, 424 U.S. at 355. Plaintiffs have accordingly

alleged a valid claim that S.B. 1070 constitutes unconstitutional state regulation of

immigration.

B S.B. 1070 intrudes into a field federal law fully occupies.

Under the second De Canas test, a state statute is preempted if the clear and manifest

purpose of Congress is to effect a complete ouster of state powerincluding state power

9 In Takahashi v. Fish & Game Com., 334 U.S. 410 (1948), the Court characterized the federalregulatory power over immigration as comprising broad constitutional powers indetermining what aliens shall be admitted to the United States [and] regulation of their conduct ... Id. at 419 (emphasis added).

Six years after De Canas the Court held that [a]lthough it is a routine and normallylegitimate part of the business of the Federal Government to classify on the basis of alienstatus, and to take into account the character of the relationship between the alien and thiscountry, only rarely are such matters relevant to legislation by a State . Plyler v. Doe, 457 U.S.202, 225 (1982) (emphasis added).



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to promulgate laws not in conflict with federal laws, with respect to the subject matter

which the state attempts to regulate. De Canas, supra, 424 U.S. at 357. An intent to preclude

state action may be inferred where the system of federal regulation is so pervasive that no

opportunity for state activity remains. Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir.

1983).

In Hines v. Davidowitz, supra , the Court identified the following factors as determining

whether federal enactments preclude state laws on the same subject: [1] The nature of the

power exerted by Congress, [2] the object sought to be attained, and [3] the character of the

obligations imposed by the law ... 312 U.S . at 70.

Congress has long exercised its exclusive power to regulate immigration through the

Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq. In contrast, defendants

foray into such regulation is new. 10 S.B. 1070 plainly seeks to supplement federal law, and

except for the employment provisions of 5, has nothing to do with conventional state

concerns. Such duplicative state legislation cannot stand.

In Hines, supra, a state enactment required aliens to register with a state agency. 312

U.S. at 56. The Court held the state enactment preempted:

10 S.B. 1070 2, codified atAriz. Rev. Stat. 11-1051(B), prescribes the interrogation anddetention of unauthorized aliens. The INA has long regulated the same. 8 U.S.C. 1357.

S.B. 1070 3,codified atAriz. Rev. Stat. 13-1509, creates new criminal penalties for alienswho fail to register or carry proof of registration. The INA long ago did the same. 8 U.S.C. 1306(a) and 1304(e).

S.B. 1070 5,codified atAriz. Rev. Stat. 13-2928(C), purports to regulate the employment ofunauthorized aliens, something the INA has done for many years. 8 U.S.C. 1324a.

S.B. 1070 4 and 6, codified atAriz. Rev. Stat. 13-2319 and 13-2929, penalize transporting,harboring, and encouraging unlawful entrants. The INA, 8 U.S.C. 1324(a), has proscribedsuch conduct for decades.



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[W]here the federal government, in the exercise of its superior authority in this field,has enacted a complete scheme of regulation and has therein provided a standard forthe registration of aliens, states cannot, inconsistently with the purpose of Congress,conflict or interfere with, curtail or complement the federal law, or enforce additionalauxiliary regulations .

Id. at 66 (emphasis added). 11

In Lozano v. Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), affd Lozano v. City of

Hazleton, supra, 2010 U.S. App. LEXIS 18835, a city enacted ordinances regulating immigrant

employment. 496 F. Supp. 2d at 484-85. Again the court struck down the ordinances because

federal law already regulated immigrant employment and the citys ordinances were

duplicative. Id. at 523-24, 554-55.As this Court has elsewhere ruled with respect to S.B. 1070 5, Congress has

comprehensively regulated in the field of employment of unauthorized aliens, USA Order

at *54. If anything, the same is even more true of 2, 3, 4, and 6 of S.B. 1070: the federal

government has enacted a complete regulatory scheme comprising the subject matter of

each of these sections, and none of these has any discernable connection to traditional state

concerns. 12 Arizonas duplicative legislation cannot stand.

11 More recently, in League of United Latin American Citizens v. Wilson, 997 F. Supp. 1244 (C.D.Cal. 1997), the court struck down a state statute that, inter alia, denied public benefits tounauthorized entrants. The court held that the federal Personal Responsibility and WorkOpportunity Reconciliation Act (PRA), preempted the state statute because states haveno power to effectuate a scheme parallel to that specified in the PRA, even if the parallelscheme does not conflict with the PRA. Id. at 1253-55.

12 Where Congress has wished state assistance in enforcing federal immigration law, it hassaid so unambiguously. See, e.g., 8 U.S.C. 1357(g) (1)(9) (authorizing DHS to enter intoagreements with local law enforcement agencies for training and supervised and well-defined immigration related functions).



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C S.B. 1070 actually conflicts with federal law.

Under the third De Canas test, a state law is preempted if it actually conflicts with

federal law. De Canas, 424 U.S. at 363. See also Hines, 312 U.S. at 67 (conflict preemption

where state law "stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress").

As this Court has already held, [r]equiring Arizona law enforcement officials and

agencies to determine the immigration status of every person who is arrested burdens

lawfully-present aliens because their liberty will be restricted while their status is checked.

US Order at 16 . See also id. at 18 (the first sentence of Section 2(B) involving immigration

status determination during lawful stops also imposes a burden on lawfully-present aliens

not permitted by Hines); id. at 19 ( legal residents will certainly be swept up by this

requirement, particularly when the impacts of the provisions pressuring law enforcement

agencies to enforce immigration laws are considered); id. at 23-24 (Section 3

[impermissble] alters the penalties established by Congress under the federal registration

scheme [and] stands as an obstacle to the uniform, federal registration scheme and is

therefore an impermissible attempt by Arizona to regulate alien registration); id. at 27

(regarding Section 5, Congress has comprehensively regulated in the field of employment

of unauthorized aliens Arizonas new crime for working without authorization

conflicts with a comprehensive federal scheme and is preempted).

Here, 2-6 conflict with federal law and policy and upset the careful balance

between humanitarian concerns, deterring unauthorized entry, and respect for civil,

human, and constitutional rights Congress has struck in the INA. These sections impose



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burdens and penalties on immigrants who are at the time known to the federal

authorities. 13

Defendants motion regarding plaintiffs conflict preemption claim should be denied.

III PLAINTIFFS HAVE ALLEGED A COGNIZABLE VIOLATION OF THE COMMERCE CLAUSE

For their third claim for relief, plaintiffs assert that the portion of Section 5 that adds

A.R.S. 13-2929 violates the Commerce Clause because it restricts the interstate

movement of immigrants. Compl. 61. 14 Defendants argue that A.R.S. 13-2929 does not

address whether aliens can or cannot come to the State, nor does it regulate their entry in

any way, and that Plaintiffs do not explain how A.R.S. 13-2929 supposedly discriminates

against interstate commerce. Motion at 15.

Edwards v. California, 314 U.S. 160, 172-73 (1941), reviewed a California statute that

criminalized the act of bringing a transient into the state. 15 The Court held that it is settled

beyond question that the transportation of persons is commerce, within the meaning of

[Article 1, 8 of the Constitution]. Id. at 172. We think that [the prohibition in 2615

13 SB 1070 in essence fails to recognize that federal law provides numerous and often-complex avenues by which even persons that are unlawfully present may remain in theUnited States. See generally Plyler v. Doe, supra, 427 U.S. at 226 (noting inherent difficulty ofknowing whether school children whose presence here may conflict with federal law willwin permission to reside in the United States indefinitely).14 To make out a claim that a regulation impermissibly burdens the commerce clause, aplaintiff must sufficiently plead that the local law discriminates against interstate commerceeither on its face, or in its effect. Hertz Corp. v. City of New York, 1 F.3d 121, 131 (2d Cir.1993) (emphasis supplied; citation omitted).

15 Every person, firm or corporation or officer or agent thereof that brings or assists inbringing into the State any indigent person who is not a resident of the State, knowing himto be an indigent person, is guilty of a misdemeanor. Edwards, supra, at 165-166.



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against the bringing or transportation of indigent persons into California] is an

unconstitutional barrier to interstate commerce. Id. at 173.16

As in Edwards, the portion of Section 5 that adds A.R.S. 13-2929 bars the movement

of persons Defendants vaguely label illegal aliens into Arizona (and if they are present

seeks to compel their removal at the pleasure of the authorities). Motion at 15. 17

IV PLAINTIFFS HAVE STATED VIABLE DUE PROCESS CLAIM .

Plaintiffs allege that 1-6 of S.B. 1070 deny plaintiffs and their class members due

process of law in violation of the Fourteenth Amendment to the United States Constitution.

Complaint 63. Defendants argue that (1) Section 2 provides due process because it is only

triggered when there is a lawful stop, detention or arrest and reasonable suspicion exists

that the person is an alien and is unlawfully present in the United States, Motion at 16, and

(2) SB 1070 establishes appropriate procedures (though these are never explained)

seemingly because it is proper for the Court to construe the law as containing an implicit

reasonable time limitation on the duration of time a person may be detained pending an

investigation into his or her immigration status. Id. at 17.

When a liberty interest is at stake, the requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v.

Eldridge, 424 U.S. 319, 333 (1976). The factors to be considered are

16 The Court made clear that no boundary to permissible State activity is more certain thanthe prohibition against attempts on the part of any single State to isolate itself from difficultiescommon to all of themby restraining the transportation of persons across its borders. Id. (emphasis added).

17 Whatever the perceived failings of the federal authorities to adequately addressundocumented migration to Arizonas satisfaction, the state cannot isolate itself fromdifficulties common to all [states] by restraining the transportation of persons across itsborders. Edwards, supra, at 173.



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the private interest that will be affected by the official action; second, the risk of anerroneous deprivation of such interest through the procedures used, and theprobable value, if any, of additional or substitute procedural safeguards; and finally,the Governments interest, including the function involved and the fiscal andadministrative burdens that the additional or substitute procedural requirement

would entail. Mathews v. Eldridge, 424 U.S. at 335.

Regarding the first and third factors, this Court has already determined that the

plaintiffs liberty interests here are weighty, as is Arizonas interest in promoting the

safety and welfare of its citizens. Friendly House Order at 21, citing Landon v. Plasencia, 459

U.S. 21, 34 (1982). Plaintiffs in this case provide detailed facts regarding their status in

Arizona and allege that if SB 1070 is implemented they face unconstitutional interrogation,

detention, arrest, or prosecution under SB 1070 despite the fact that [their] presence is

authorized by federal law Complaint 16-20. The Complaint and the text of SB 1070

make clear that Plaintiffs allegations of unconstitutional and arbitrary detention decisions

are plausible. Friendly House Order at 23. 18 For the purposes of a challenge under Rule

18 When persons are detained for further inquiry to ICE regarding their immigrationstatus, neither SB 1070 nor defendants offer any process regarding where they may bedetained, for how long they may be detained, or when or how they may appear before aneutral party to evaluate the justification for their continued detention.

Similarly, when persons are arrested and may not be released pending inquiry to ICEregarding their immigration status, neither SB 1070 nor defendants offer any processregarding where they may be detained, for how long they may be detained awaiting anICE response, or when or how they may appear before a neutral party to evaluate the justification for their continued post-arrest detention solely for immigration statusverification.

SB 1070 6 provides that an officer can make a warrantless arrest if a person has committeda public offense that makes them removable. Defendants concede that warrantlessarrests will take place under SB 1070 6 without any criminal violation. Neither SB 1070 norDefendants offer any process regarding where persons under Section 6 may be detained,for how long they may be detained while someone determines whether they areremovable because of an undefined public offense, or when or how they may appear



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12(b)(6), the Complaint contains non-conclusory factual content, from which the Court

can draw reasonable inferences . . . [that are] plausibly suggestive of a claim entitling the

plaintiff[s] to relief. Moss, 572 F.3d at 969 (citation omitted). Defendants Motion should be

denied as to Plaintiffs procedural due process claim.

V PLAINTIFFS HAVE STATED VIABLE EQUAL PROTECTION CLAIM .

Arizona may not irrational discriminate between different groups of similarly

situated immigrants or US citizens living in its state. Graham v. Richardson, 403 U.S. 365, 376

(1971) (invalidating state statute distinguishing between citizens and noncitizens).

"Line-drawing" decisions even in the context of immigration are upheld only if they

are rationally related to a legitimate government purpose. See Heller v. Doe, 509 U.S. 312,

319-20 (1993); Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. Ed. 220, 6 S. Ct. 1064 (1886); Aguirre

v. INS , 79 F.3d 315, 317 (2d Cir. 1996); Tapia-Acuna v. INS , 640 F.2d 223, 225 (9th Cir. 1981);

United States v. Barajas-Guillen , 632 F.2d 749 (9th Cir. 1980); Castillo-Felix v. INS, 601 F.2d 459,

467 (9th Cir. 1979).

In this case no rational purpose is served by requiring or encouraging the detention

and arrests of persons for purported immigration law violations whose presence is known

to the federal government which has not required their registration or detention, or

making it a crime for them to seek work or be employed, while not placing immigrants

already granted lawful status by the federal Government, or the category of immigrants

who SB 1070 treats as possessing satisfactory proof of lawful residence, in the same

situation. See, e.g. Tapia-Acuna v. INS , 640 F.2d 223, 225 (9th Cir. 1981) (no rational purpose

served by giving less consideration to the alien 'whose ties with this country are so strong

before a neutral party to evaluate the justification for their continued post-arrest detentionbecause they are suspected of being removable as a result of some public offense.



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that he has never departed after his initial entry' than to the alien 'who may leave and

return from time to time) ( quoting Francis v. INS , 532 F.2d 268, 273 (2d Cir. 1976)). 19

Defendants Motion should be denied as to Plaintiffs equal protection claim.

VI PLAINTIFFS HAVE STATED A VIABLE DUE PROCESS VAGUENESS CLAIM .

Plaintiffs challenge Section 6 as being void for vagueness. Compl. 63. Defendants

argue that SB 1070 is sufficiently clear and definite because the language of SB 1070

matches the terminology of federal law, which refers to an alien not lawfully present in

the United States or an alien unlawfully present in the United States. Motion at 16, citing

8 U.S.C. 1229a(c)(2). Likewise, defendants argue, the term public offense in A.R.S. 13-

3883(A)(5) when read in conjunction with the clause that immediately follows it, provides

sufficient clarity as to its meaning. Id.

Section 6 permits an officer to arrest a person without a warrant if the officer has

probable cause to believe that the person to be arrested has committed any public offense

that makes the person removable from the United States. A.R.S. 13-3883(A)(5). 20

As set forth in the Complaint and discussed supra, the individual immigrant plaintiffs

are known to the federal authorities but are undergoing a variety of complex

administrative proceedings each addressing the plaintiffs unique circumstances. 21

19 It is also plausible that SB 1070 will result in violations of equal protection because of itstraining materials permitting detentions and arrests based upon vague and ill-defined factssuch as dress, demeanor, and limited English-speaking ability.

20 Public offense is defined in Arizona state law as follows: [C]onduct for which asentence to a term of imprisonment or of a fine is provided by any law of the state in whichit occurred or by any law, regulation or ordinance of a political subdivision of that state and,if the act occurred in a state other than this state, it would be so punishable under the laws,regulations or ordinances of this state or of a political subdivision of this state if the act hadoccurred in this state. Id. 13-105(26).



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Section 6 permits a restraint on plaintiffs liberty because, inter alia, they are deemed

removable from the United States. Id. 13-3883(A)(5). As Plaintiffs cases make clear,

whether a state offense makes a person removable requires a complex factual and legal

analysis not addressed by SB 1070. As this Court noted in its Friendly House Order, within

the complicated scheme of determining removability, some federal officials are authorized

to change the immigration consequences of the commission of a public offense and cancel

the removal of an alien. Id. at 27, citing 8 U.S.C. 1229b(a), 1253(a)(3).

Because A.R.S. 13-3883 already provides for the warrantless arrest of a person

who commits a felony, misdemeanor, petty offense, or one of certain criminal violations in

connection with a traffic accident, the effect of Section 6 on warrantless arrest authority is

somewhat opaque. Friendly House Order at 27. Whatever the goal of Section 6 was, its

meaning is not clear from the statutory language. Id.

Plaintiffs have alleged facts sufficient to show that this provision fail[s] to provide

the kind of notice that will enable ordinary people to understand what conduct it prohibits.

City of Chi., 527 U.S. at 56. (citing Kolender , 461 U.S. at 357). Even a person with extensive

experience in law enforcement and a background in immigration law might not be able to

determine easily whether a public offense makes a person removable from the United

States. Defendants Motion should be denied as to Section 6.

21 Plaintiff Magdalena Schwartz, for example, has been in administrative proceedings forsome twenty (2) years. Complaint 16. Plaintiff Jose David Sandoval has also obviouslybeen in the U.S. for several years and his order of removal was reversed by the UnitedStates Court of Appeals for the Ninth Circuit in February 2010. Complaint 17.



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V CONCLUSION

For the foregoing reasons, defendants motion to dismiss should be denied. 22

Dated: October 11, 2010. CENTER FOR HUMAN RIGHTS

& CONSTITUTIONAL LAW

/s/___________________________________ Peter A. Schey

/s/___________________________________ Carlos. R. Holguin

/s/___________________________________ T. Anthony Guajardo

Attorneys for Plaintiffs

22 Plaintiffs agree that the State of Arizona is immune from suit pursuant to the EleventhAmendment and will voluntarily dismiss the state as a defendant herein.



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CERTIFICATE OF SERVICE

I hereby certify that I am over the age of 18, not a party to this action, and on

October 11, 2010, I electronically transmitted the foregoing document to the Clerks Office

using the CM/ECF System for filing and emailing to opposing counsel.

________________S_______________ Christopher Scherer

/ / /


lulac, et al. v state of az (immigration) - 30 - response to motion re 27 motion to dismiss for lack...

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