USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART FIVE

S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (2010).

Employing statutory analysis to make certain that “[e]ach word, phrase, clause, and sentence . . .must be given meaning so that no part will be void, inert, redundant, or trivial,” Williams v. Thude, 934 P.2d 1349, 1351 (Ariz. 1997) Judge Paez examines § 13-3883(A) to determine if Judge Bolton properly construed Arizona law.

Warrantless arrest is already permitted under § 13-3883(A) for felonies, misdemeanors, petty offenses, and certain traffic related criminal violations. Judge Paez says in his majority opinion that he and Judge Noonan came to the same conclusion reached below. "we conclude, as the district court did, that Section 6 “provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States.” United States v. Arizona 703 F. Supp. 2d 980, 1005 (D. Ariz. 2010).

No Presumption Against Preemption

The majority opinion began its inquiry by looking at whether "arresting immigrants for civil immigration violations" was a field typically occupied by the States. Since this is not an area of law traditionally exercised by the States the court found no presumption against preemption. Relying on Wyeth, the court found that no historic police power of Arizona weighed in favor of preemption.

Examining Congressional intent Paez reviewed 8 U.S.C. § 1252c which authorizes state and local officers “to the extent permitted by relevant State . . . law,” arrest and detain an individual who:

(1) is an alien illegally present in the United States;

and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.

Paez finds that nothing in 8 U.S.C. § 1252c authorizes warrantless arrests, only permits state and local officers to arrest an immigrant who has been convicted of a felony, and the federal statute imposes a mandatory duty on state and local officers to confirm the individual's status with Immigration and Naturalization Service prior to arrest.

Paez writes "Misdemeanors, not just felonies, can result in removablility. See generally, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). Thus, Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted in Section 1252c.

Requirements for Warrantless Arrest

Paez sets out the statutory requirements for a warrantless arrest in the immigration scheme adopted by Congress. "Absent a federal officer actually viewing an immigration violation, warrantless arrests under 8 U.S.C. § 1357(a) require a likelihood that the immigrant will escape before a warrant can be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6 contains no such requirement and we are not aware of any INA provision indicating that Congress intended state and local law enforcement officers to enjoy greater authority to effectuate a warrantless arrest than federal immigration officials."

Attrition through Enforcement

"Section 6 interferes," writes Paez, "with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted." Arizona had a different idea which Paez refutes. "Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State’s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition. The Ninth Circuit found no such authority as claimed by Arizona.

"We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law —we now hold that states do not have such inherent authority." Remember this detail because it will be revisited by the dissenting opinion of Judge Bea.

A Split In the Circuits

A split in the opinions of the various Circuit Courts of Appeal is a direct invitation for the Supreme Court to resolve the differing opinions. Here the majority opinion agrees with the Sixth Circuit in United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008). Paez opinion says "the Sixth Circuit cited 8 U.S.C. § 1357(g), which it summarized as “stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions.”

The Tenth Circuit reached a different conclusion. The case was United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez the defendant argued that evidence should have been suppressed because the local law enforcement officers did not comply with the requirements of 8 U.S.C. § 1252c.

The Tenth Circuit relied on a reading of legislative history to assist it in making its opinion. Paez calls the Tenth Circuit's opinion nonsensical. "The Tenth Circuit’s interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit’s conclusion is nonsensical: we perceive no reason why Congress would display an intent “to displace preexisting . . . authority” when its purpose in passing the law was to grant authority it believed was otherwise lacking."

Paez concludes this debate with the Tenth Circuit saying " Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. § 1357(g)—and § 1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws."

The Ruling

Paez finds "S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress."

The death knell for Section 6 tolled when Paez wrote "In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same."

Part Six of this series will look Judge Paez's discussion on the Equitable Factors of this case.

USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART ONE

In a split decision from a three judge panel of the Ninth Circuit Court of Appeals the of Arizona's Federal Judge Susan Bolton has been upheld in the case of the United States v. Arizona, the SB1070 case. The panel produced three written opinions, the first by Judge Richard Paez, a concurring opinion by Judge John T. Noonan, and a dissent from Judge Carlos T. Bea.

Judge Richard Paez

Judge Richard Paez, previously served on the Federal Bench in Los Angeles. Paez began his career representing poor people as a staff attorney for California Rural Legal Assistance and then for the Western Center on Law and Poverty. Paez was the executive director for litigation for the Legal Aid Foundation of Los Angeles before Governor Jerry Brown elevated him to the municipal bench in L.A.

Judge John T. Noonan

Judge John T. Noonan worked as Special Staff to the United States National Security Council, assisting National Security Advisor Robert Cutler from 1954-1955. He then entered private practice, working for the Boston law firm of Herrick Smith Donald Farley & Ketchum from 1955 until 1960. After leaving private practice Noonan became a professor of law first at Notre Dame then at the University of California at Berkeley. He was appointed to the Court of Appeals to fill a newly created seat by President Reagan.

Judge Carlos T. Bea

Judge Carlos T. Bea was born in Spain and emigrated with his parents to Cuba in 1939. He was a member of the Cuban basketball team in the Helsinki Olympics in the summer of 1952. He then emigrated to the United States and became a naturalized citizen in 1959. He began a private practice of law in 1958. In 1990 he became a trial judge on the San Francisco Superior Court. He was appointed to the Ninth Circuit Court of Appeal in 2003.

These opinions provide more ideas to digest than can be reasonably commented on in one blog posting. I will divide the details into several postings. The bottom line is that by a 2 to 1 margin Judge Bolton has been sustained by the Court of Appeals.

Judge Paez began his discussion with the Supremacy Clause, U.S. Const. art. VI, cl. 2, as the source of the federal preemption doctrine. Citing Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009), he framed the arguments by which state law must yield to federal law. This analysis:

[M]ust be guided by two cornerstones of [theSupreme Court’s] pre-emption jurisprudence. First, the purpose of Congress is the ultimate touchstone in every pre-emption case. . . . Second, [i]n all preemption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied,  . . .[courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.

Where Congress has not explicitly provided for preemption state law must give way in two specific areas. First is when Congress intends to occupy the field. The second is where Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute. Paez writes that "Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Impossibility preemption exists where it is impossible for a private party to comply with both state and federal law.

Obstacle preemption exists where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

To determine whether obstacle preemption exists, the Supreme Court has that instructed that the federal judiciary employ its judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.

The Salerno Rule & Arizona's Mistake

The facial challenge standard rule established in United States v. Salerno, 481 U.S. 739 (1987) is what I have been referring to as the inconceivable standard. Thus, under Salerno, “the challenger must establish that no set of circumstances exists under which the Act would be valid. Paez takes Arizona's sophistry to task for its approach to the Salerno Rule.

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.(emphasis added)

The Court of Appeals concluded that the relevant provisions of S.B. 1070 facially conflict with Congressional intent as expressed in provisions of the Immigration and Naturalization Act [INA]. If that were not the case the Court of Appeals would have next considered whether the statute could be applied in a constitutional manner.

Judge Paez then employs a section by section analysis of those parts of Arizona SB1070 . This is where the next blog posting on this topic will begin.

JERRY MORAN, LYNN JENKINS, & DAN BURTON HAVE GOT THE PREEMPTION DOCTRINE WRONG - USA v. ARIZONA, THE SB 1070 CASE

Kansas' Republican Senator-elect Jerry Moran, Second District Representative Lynn Jenkins, and Indiana's Fifth District Republican Dan Burton weighed in to the Arizona SB 1070 with an amicus curiae brief. They joined the Washington Legal Foundation (WLF), the Allied Educational Foundation (AEF), Concerned Citizens and Friends of Illegal Immigration Law Enforcement (CCFILE) [ § 501 (c) (3) organizations], and the National Border Patrol Council (NBPC) [ a § 501 (c) (5) organization.].

Their opening volley is that the federal government's failure to establish a "pervasive" scheme as to employing illegal immigrants means that preemption cannot apply. It is one of the weaker arguments I have read in the many briefs competing for the attention of the Ninth Circuit Court of Appeals.

Take another case which employs the "pervasive" standard, Gustafson v. City of Lake Angelus, 76 F.3d 778, which was decided by the Sixth Circuit Court of Appeal in 1996. This is an aviation noise case from Michigan. Explaining when a statute may be preemptive, the Sixth Circuit said:

"A statute may be construed as preemptive under three circumstances.... First, Congress, in enacting a federal statute, may express a clear intent to preempt state law. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Common, 461 US. 190, 203 (1983). Second, absent express preemption, federal law may have an implied preemptive effect if Congress revealed this intent by "occupying the field" of regulation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). There is implied preemption when there is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Fidelity Federal Savings & Loan Assn, 458 US. at 153. There is a third type of preemption when state law actually conflicts with federal law. Such conflict occurs where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, (1941)."

The Hines case is the most important one to focus on because Judge Bolton relied on the case for as precedent and because it speaks directly to the topic which these Amici argue.

The current SB 1070 case on appeal to the Ninth Circuit, U.S.A. v. Arizona, is almost like an echo of the Hines case. The Commonwealth of Pennsylvania enacted an Alien Registration Act in 1939. That law required everyone over the age of 18 to "to register once each year; provide such information as is required by the statute, plus any:

other information and details "that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or any agent of the Department of Labor and Industry; and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. The Department of Labor and Industry is charged with the duties of classifying the registrations for "the purpose of ready reference," and furnishing a copy of the classification to the Pennsylvania Motor Police. Nonexempt aliens who fail to register are subject to a fine of notmore than $100 or imprisonment for not more than 60 days, or both. For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine of not more than $10, or imprisonment for not more than 10 days, or both.

In short, this statute was an earlier version of Arizona's papers please SB 1070 law.

What Moran, Jenkins, Burton, and their tax-exempt cohorts fail to recognize in their brief is that the Constitution gives the Congress absolute authority to regulate in the arena of immigration. Had their learned counsel fully read Hines, instead of picking and ignoring selected text, perhaps they wouldn't have found themselves out on the proverbial limb. What they want is for the Ninth Circuit to agree that this case is about an area where either the federal government or the states may regulate and ignore that silly old Constitution.

The Hines court went on to say:

Our conclusion is that appellee is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law. We proceed therefore to an examination of Congressional enactments to ascertain whether or not Congress has acted in such manner that its action should preclude enforcement of Pennsylvania's law.

In Hines the Supreme Court found that Pennsylvania Act could not be enforced. In finding that the United States is likely to succeed on the merits of the case, Judge Bolton said, in part, that SB 1070 "is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” [citing Hines.] ... Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established."

Judge Bolton added the following footnote 7:

The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, J., concurring in plurality opinion in part and dissenting in part) (collecting cases where burden of state regulation on federal government was amplified by aggregate potential of multiple states following suit).

While it is clear that the Constitution gives the federal government sole authority over immigration Congress may invite the assistance of the States in the enforcement of those laws. That is essentially the argument made by SB 1070's author Secretary of State-elect Kris Kobach. What Kobach and the SB 1070 brain trust overlooked was the permissive nature of that cooperation. In a classic case of being offered an inch and taking a mile the Kobachian version is that when Congress opened the door to the States then all bets were off. You'd think a guy like Kobach would have a greater understanding of Constitutional Law than to come up with that goofy notion.

Gustafson v. City of Lake Angelus was a different sort of case from either Hines or U.S.A. v. Arizona. The latter two cases directly involved an area which the Constitution says the federal government has supreme control, but in Gustafson the Sixth Circuit said: "[W]e believe the United States' sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land (or, in the present case, water) use."

There are three ways in which the preemption doctrine can apply. First is the case of express preemptions, where " . . . Congressional intent to preempt must be unambiguous and cannot be inferred from (the) mere fact that (the) federal statute is detailed and complex or because state legislation touches an area of predominantly national concern." Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, (9th Cir. 1981) 659 F.2d 903.

Second is the case of implied preemptions, where ". . . When a federal statute does not explicitly prohibit state regulation in the same field, congressional intent to preempt may be inferred from nature of federal regulatory scheme or from subject matter being regulated . . . (Pacific Legal Foundation).

" . . in a preemption test the fundamental inquiry is whether local legislation will conflict with national policy . . .; if the activity is of predominantly local interest then state action may be permissible, but if a uniform national rule is necessary then federal preemption will be implied." California v. Zook, (1949) 336 U.S. 725, 728.

The third case is where the state law conflicts with federal law. This is where the instant case belongs. " . . . a conflict between state and federal law . . may arise when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, (1941) 312 U.S. 52, 67, as cited in Ogden Environmental Services v. City of San Diego, 88 Daily Journal D.A.R. 15264, 15266-15267.

" . . . Even if Congress did not intend to preempt all state legislation in a given field, a state law must be held invalid to (the) extent that it actually conflicts with federal law . . . (Pacific Legal Foundation, supra.).

" . . . State regulations are preempted when a conflict would arise if compliance with both federal and state regulations were impossible or if state regulations stood as an obstacle to achievement of congressional objectives . . . (Pacific Legal Foundation, supra.).

Moran, Jenkins, and Burton are trying to lead the Ninth Circuit down the wrong path, that of express preemption. They seem unable to reconcile themselves to the fact that the Constitution places this case in the third area, that of conflicts.

They will not win their point in an appellate court. The question remains if in the 112th Congress they will try to grant the States the power to regulate in the field of immigration. There is no way the President would sign a bill like that. It would, however, set up another interesting legal battle, the intentional abdication of federal responsibility by Congress. In other words, can Congress, by statute, let the States regulate where the Constitution says the States may not regulate?

Yes, Virginia, we seem to be returning to the Articles of Confederation. And no, Virginia, they didn't work so well before.

THE APPEAL OF ARIZONA SB 1070, THE UNITED STATES v. ARIZONA -- NEITHER GOD NOR RUSSELL PEARCE CAN ENTER THE FRACAS!

The Ninth Circuit Court of Appeals has been busy with case number CV 10-1413-PHX-SRB. That's the on-going appeal of Arizona Federal District Judge Susan Bolton's injunction against Arizona's SB 1070. You can read Judge Bolton's lengthy and well reasoned Order on line at:
http://www.azd.uscourts.gov/azd/courtinfo.nsf/983700DFEE44B56B0725776E005D6CCB/$file/10-1413-87.pdf?openelement.

The docket at the Federal Court of Appeals for the Ninth Circuit already has 131 entries and the case is nowhere near resolution. Part of the large number of entries has to do with the sheer numbers of folks who want to put in their two cents worth by filing friend of the court, or amici curiae, briefs. Here's the latest list of those whom the Court of Appeals turned down, denying them the privilege of filing those briefs.

1. Ray Elbert Parker wanted to file in support of a Motion to Dismiss purportedly filed in the District Court. Judge Bolton's Order denying Ray Ellis Parker was transmitted to the Court of Appeals as docket item 131. Parker is wrong in thinking that a Motion to Dismiss was filed in the District Court.  Parker apparently mixed his chicken manure in with his applesauce.  Parker wanted to support the "Defendans Opposition to Motion to Dismiss filed by Appellant."  No such motion was ever made by the United States. Parker gave a Virginia address.  I suspect he is the disgruntled former teacher who has repeatedly sued a Maryland school district because of his termination.

2. Matthew D. Pinnavaia's filed a Motion to file an Amicus Curiae brief, but failed to attach that brief to his motion. Judge Bolton denied Pinnavaia's motion.  Pinnavaia claims to be an American Citizen in the tradition of James Madison and Thomas Jefferson. 

3. Michigan's Senate Majority Leader Mike Bishop filed a Motion to file an Amicus Curiae brief, but failed to attach that brief to his motion. Judge Bolton said Bishop was unclear about what position his brief would support as the only pending matter is a Motion to Dismiss.

4. Arizona State Senator Russell B. Pearce won't get to Intervene in this case. Pearce wrote the statute under scrutiny, Arizona SB 1070. Judge Bolton correctly sets forth the four part test of Federal Rule of Civil Procedure 24(a)(2), which a party seeking to intervene must meet:

“(1) the motion must be timely; (2) the applicant must claim a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action."

Pearce cited no authority that he, in his official capacity, had a legal right to intervene. A legislator may assert that right where the executive fails to adequately represent the interests of the statute in question. That is not the case here.

Pearce fails to state a sufficiently protectable interest relating to SB 1070. Mere authorship is not enough for the District Court to allow him to intervene. The Senator from Mesa fails the second part of the test.

The failure of the second part of the four part test leads to Pearce's failure under the third part of the test. Pearce is not situated so that the disposition of the action may as a practical matter impair or impede its ability to protect that interest. Pearce may have strategy issues with Arizona's legal team, but he is not in a position to do a better job than Arizona's legal team.

Failure to meet any one of the four tests set forth in Federal Rule of Civil Procedure 24(a)(2) is fatal.

5. God, being represented by one D.Q. Mariette Do-Nguyen, will not be permitted to proceed. Really, that is the claim which was made. The pleading party identified herself to the District Court as:

Mariette Do-Nguyen, a legal immigrant from Vietnam during the evacuation of 1975, sponsored by the United States government, became a U.S. citizen in June, 1982. I am the Almighty Eternal Creator’s Messenger of Covenant, and founder and head of the Kingdom of Heaven in the earthly realm. Obeying the Almighty Eternal Creator’s instructions, I act as His representative in the United States Federal Court, fill [sic] this Motion for Filling [sic] Third-Party Complaint..."

Read her pleading at: 

http://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2010cv01413/535000/54/

Judge Bolton made it clear that God's alleged representative is not a party to the case and cannot appeal. The Court of Appeals issued its mandate affirming Judge Bolton's order as to D.Q. Mariette Do-Nguyen.

Remember, the Arizona appealed the District Court's Order, The United States and We the People are the plaintiffs in the action from the trial court.  In the Ninth Circuit Arizona is the appellant and the United States is the appellee. Arizona has filed a Motion to Dismiss the appeal. The issues raised by the parties will be addressed in another posting.

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).

Judge Bolton's Order may be viewed in whole at: http://www.azd.uscourts.gov/azd/courtinfo.nsf/983700DFEE44B56B0725776E005D6CCB/$file/10-1413-87.pdf?openelement

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.