Wednesday, July 28, 2010

Preliminary Injunction Issued Against Arizona's SB 1070



Federal District Judge Susan Bolton

Federal District Court Susan Bolton is hearing the matter of the United States v. Arizona, et al. Today she blocked key portions of Arizona's "papers please" SB 1070 law written by Kansas' candidate for Secretary of State Kris Kobach. On Kansas City's local FOX affiliate, WDAF, Kobach downplays the significance of Judge Bolton's ruling. He should not.

Preliminary Injunctions are not issued at the drop of a hat. They belong to a class of Equitable Remedies known as Injunctions. A Preliminary Injunction does not always blossom into a Permanent Injunction. Neither is overturning a Preliminary Injunction a slam-dunk.

Four elements must be established before a court will issue a Preliminary Injunction. First the Plaintiff must show a reasonable likelihood that they will prevail on the merits of the case. Second, irreparable harm will occur absent the order. Third is a balancing test where the judge must find that less harm will accrue to the Defendants if the Preliminary Injunction is issued compared to more harm accruing to the Plaintiffs if the Preliminary Injunction does not issue. Finally, that the public interest weighs in favor of the Plaintiff.

Here is what early reports are saying about Judge Bolton's ruling. The New York Times is reporting:

The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

The Tucson Citizen gives a more detailed report of Judge Bolton's actions, reporting that these key features of SB 1070 will not be going into effect next week:

The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

• The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

• The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

• The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.
The Tucson Citizen says other parts of SB 1070 will not be enjoined:

The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.

Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.

Bolton’s ruling followed hearings on three of seven federal lawsuits challenging SB 1070. Plaintiffs include the U.S. Department of Justice, the American Civil Liberties Union, Phoenix and Tucson police officers, municipalities, illegal immigrants and non-profit groups.

She denied legal requests by Gov. Jan Brewer, Maricopa County Sheriff Joe Arpaio and several other defendants seeking to have the lawsuits dismissed because, they argued, the plaintiffs did not prove that they would be harmed by the law if it went into effect.

Judge Bolton did not enjoin §1 of SB 1070, providing for the intent of the bill; Portions of §2 of SB 1070.
From Judge Bolton's Order, these are the enjoined sections:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating

A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

The Preliminary Injunction has the effect of freezing the status quo, the enjoined parts of SB 1070 will not go into effect. Expect a full trial on the merits of the case with the United States asking for a Permanent Injunction.

This case is far from over.

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