SB 1070 Slugfest: Will Judge Susan Bolton Block 1070's "Papers Please" Section?

Snell & Wilmer honcho John Bouma, outside the federal courthouse in Phoenix

See also: SB 1070 Oral Arguments on "Papers Please" Section Scheduled for August 21
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That John Bouma has such a way with words.

During oral arguments Tuesday in federal court over the "papers please" portion of Arizona's Senate Bill 1070, Bouma, chairman of the powerhouse law firm Snell & Wilmer, offered sometimes racially-charged arguments as to why section 2(b) should not be enjoined by Judge Susan R. Bolton.

Bouma conceded that Latinos and Mexican nationals -- whether here legally or not -- will be disproportionately affected by the implementation of 2(b), which requires cops to check immigration status during all lawful stops, if there's reasonable suspicion that the individual is undocumented.

But, he awkwardly seemed to be contending, like, so what?

"Who else is coming across the border like Hispanics?" asked Bouma rhetorically, his voice rising in apparent frustration.

He cited precedents having to do with the disproportionate impact of certain laws on Muslims, and on African-Americans.

"[T]here's a much higher proportion of blacks than anybody else [doing crack cocaine]," observed Bouma, in a spurt of weirdness.

(Note: See update below.)

Naturally, such inflammatory talk set reporters' pens in the court scribbling. Only thing Bouma could have done for an encore is bust out into a Don Rickles-esque floor show, featuring a crass parade of Irish, Jewish, and Polish jokes.

Yeah, I know Bouma was referencing federal court cases having to do with drug laws, but to say this was inartfully done is an understatement. Especially when Bouma is supposed to be defending his client -- the State of Arizona -- from the plaintiffs' claim in Valle del Sol v. Whiting that 1070 was motivated, in part, by ethnic and racial animus.

(I know, no duh, eh? But play along. What's painfully obvious still has to be demonstrated in court.)

That's part of the plaintiffs' challenge to 2(b) on Fourth and 14th amendment grounds, challenges not made before the U.S. Supreme Court in June, when the majority upheld three of Bolton's injunctions on the grounds that federal immigration law preempts state efforts to regulate immigration.

However, the Supremes disagreed with Bolton's injunction on 2(b).

At issue is whether Bolton will lift the injunction on 2(b) or let it stand for reasons other than preemption. The judge issued her initial injunctions two years ago, on July 28, 2010, one day before 1070 was scheduled to go into effect. Since then, two other provisions dealing with day-laborers have been enjoined.

The plaintiffs are also seeking enjoinment of an SB 1070 provision making the "unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens" a state crime. (A.R.S. 13-2929).

Two rulings Monday by the 11th Circuit Court of Appeals regarding 1070 copycat laws in Alabama and Georgia offered a mixed bag for the parties in Valle del Sol.

While language similar to the harboring provision in 1070 remained enjoined, injunctions on "papers please" provisions were lifted. The 11th Circuit cited the U.S. Supreme Court's ruling that section 2(b) of 1070 was not preempted by federal law.

Preemption was the constitutional issue at hand for the 11th Circuit, as was the case in Bolton's first set of injunctions in 2010. The constitutional issues for Bolton this time around are different in regards to 2(b).

Karen Tumlin, fighting for the plaintiffs in Valle del Sol v. Whiting

Still, Bolton asked Karen Tumlin of the National Immigration Law Center if the plaintiffs' argument was "weakened" by the 11th Circuit's decision on Monday. Tumlin said no, that the 11th Circuit did not have before it "the record that there is here."

Tumlin argued that there was "substantial evidence" that 2(b) violated the equal protection clause of the 14th Amendment. She described 1070 as being "infected" by "discriminatory intent" as evidenced from the statements and lies told by legislators regarding 1070's passage, as well as the now-infamous Pearce e-mails.

The judge wondered if the plaintiffs were trying to argue that the majorities of the state House and Senate had discriminatory intent in passing 1070. If not, how many people would it take to demonstrate 1070's discriminatory intent?

Tumlin replied that the plaintiffs merely had to show race was a "motivating factor" in the passage of the law.

"If the plaintiffs can prove that [race] played a motivating factor," Tumlin declared, "then [1070] must be enjoined."

During 1070's passage, she noted, legislators used false and misleading information and racially coded language, while conflating undocumented immigrants with all Mexican nationals and Hispanics.

Indeed, Tumlin's argument went to the nexus of what was behind 1070 from jump, the bigotry and racism that elected leaders from Governor Jan Brewer on down exploited for political gain.

As for the Fourth Amendment violations, the plaintiffs offered a sworn declaration from Phoenix 19 year-old Hugo Carrillo Escobedo citizen of Mexico, Arizona resident, and full time high-school student in the Valley.

On July 21, he was pulled over by Phoenix police officers for "squealing tires," and his vehicle was impounded because he was driving without a license.

Escobedo was allowed to leave, but later a Phoenix cop contacted him by phone, then went to his house, telling him he would have to be turned in to U.S. Immigration and Customs Enforcement because, supposedly, 1070 had gone into effect, and the cop feared losing his job for not following the new law.

But section 2(b) of 1070 has not gone into effect. The original injunction stands. Nevertheless, the young man was transported to ICE, which cut him loose after holding him for eight hours. Subsequently, the criminal charge he received for not having I.D. was dropped.

Tumlin's point was that this and other proffered examples demonstrated the deleterious effect 1070 would inevitably have.

She also noted statements by various law enforcement officials, including Cochise County Sheriff Larry Dever, who was present as one of the defendants, that 1070's 2(b) would be enforced so as to violate the Fourth Amendment rights of those being held.