It has been a roller-coaster few weeks for famed Arizona Sheriff Joe Arpaio. On May 2, the 9th Circuit vacated an injunction prohibiting Arpaio and fellow Maricopa County, Arizona police officers from raiding workplaces to enforce anti-identity theft laws. Then on Friday, Arizona District Court Judge G. Murray Snow held Arpaio and three deputies in civil contempt in connection for racially profiling in traffic stops, contrary to a prior order.
The May 2 decision revolves around Arizona laws H.B. 2779 (2007) and H.B. 2715 (2008), which prohibit the use of a stolen or fake identity to obtain or in connection with employment. According to the 9th Circuit’s decision in Puente Arizona v. Arpaio:
These bills were passed, at least in part, in an effort to solve some of Arizona’s problems stemming from illegal immigration. The titles of the legislation and the legislative history show an intent on the part of Arizona legislators to prevent unauthorized aliens from coming to and remaining in the state. But these bills were also aimed at curbing the growing and well-documented problem of identity theft in Arizona. Between 2006 and 2008, Arizona had the highest per-capita identity theft rates in the nation, and one third of all identity theft complaints in the state involved employment-related fraud.
Despite this evidence of a genuine issue of illegal immigrants using stolen or false identities to evade the law, the immigrant advocacy group Puente Arizona argued, and the District of Arizona agreed, that the Arizona anti-identity theft law is “facially preempted” by federal law.
Preemption is a perfectly legitimate challenge to state law, and the argument that state law must bow before federal law with which it conflicts, or where the federal law is so comprehensive that it has “occupied the field” to the exclusion of any state law is at least plausible. Facial preemption means there is no scenario at all in which a law could be enforced consistent with the Constitution.
That exceedingly high standard is why the 9th Circuit – notoriously liberal and prone to overreaching in the name of social justice causes – vacated the injunction. The Court noted, observed that there are many instance in which Arizona’s anti-identity theft laws can be and indeed have been enforced without any connection to immigration at all. To the contrary, Arizona has documents cases in which job applicants have used false identities not because they are illegal immigrants, but to hide past criminal convictions.
While the 9th Circuit’s decision vindicates Arizona law and, for now, allows Sheriff Joe to enforce it, it actually says very little about the law’s long-term survivability as an immigration enforcement tool.
Friday’s ruling by the Arizona District Court in Melendres v. Arpaio, doesn’t change much, but is a stinging rebuke to Arpaio. The undercurrent in Melendres is that Aripaio was subject to a preliminary injunction that:
made it clear that the MCSO had no authority under state law to detain persons based solely on their illegal presence within the United States. “[T]he fact that a person is unlawfully present, without more, does not provide officers with reasonable suspicion that the person is currently being smuggled for profit, nor does it provide probable cause that the person was at some point in the past smuggled for profit. . . .
To the extent that Defendants claim that the [Arizona] human smuggling statute, or any Arizona or federal criminal law, authorized them to detain people solely on the knowledge, let alone the reasonable suspicion, that those people are not authorized to be in the country, they are incorrect as a matter of law.”
The Arizona District Court found:
the Defendants intentionally failed to implement the Court’s preliminary injunction in this case, failed to disclose thousands of relevant items of requested discovery they were legally obligated to disclose, and, after the post-trial disclosure of additional evidence, deliberately violated court orders and thereby prevented a full recovery of relevant evidence in this case.
Defendants also initiated internal investigations designed only to placate Plaintiffs’ counsel. Defendants did not make a good faith effort to fairly and impartially investigate and discipline misconduct or to discover other materials responsive to Plaintiffs’ pretrial requests. . .
When the Court issued an Order to Show Cause and scheduled the evidentiary hearing, Defendants again failed to timely produce the evidence they were legally obligated to produce. . .
In their testimony during the evidentiary hearing, Sheriff Arpaio and Chief Deputy Sheridan made multiple intentional misstatements of fact while under oath.
In short, the Court finds that the Defendants have engaged in multiple acts of misconduct, dishonesty, and bad faith with respect to the Plaintiff class and the protection of its rights. They have demonstrated a persistent disregard for the orders of this Court, as well as an intention to violate and manipulate the laws and policies regulating their conduct as they pertain to their obligations to be fair, “equitable[,] and impartial” with respect to the interests of the Plaintiff class.
The Court also found:
Sheriff Arpaio has conceded that he is liable for civil contempt for violating the terms of the preliminary injunction. Nevertheless, whether his contempt of the injunction was knowing and intentional is relevant to the appropriate remedy. The Court thus finds that Arpaio is in civil contempt and additionally finds that Arpaio’s contempt was both knowing and intentional. . .
But the Court didn’t actually do much. It ordered changes to procedures in Sheriff Arpaio’s Maricopa County Sheriff’s Office (MCSO). It suggested that there might be future penalties. It said it would consider attorney’s fees. It did not pose any tangible penalties on Sheriff Joe. To the contrary, the Court even noted:
Although the Court again invites the Parties to comment on what relief they deem appropriate for this act of contempt, the Court does not view this act as giving rise to any relief separate from that which would be appropriate for the other misconduct set forth herein.
In short, nothing really happened, other than the Court reiterating that MCSO should really not do the things the Court told it not to do. This reflects, to an extent, the high bar and reluctance to impose criminal contempt or to impose penalties on public figures. In this case, Sheriff Joe’s personal fame would make it big news if the Court imposed penalties for what amounts to enforcing immigration law.
The decision was big enough news as it is:
— Yahoo News (@YahooNews) May 13, 2016
In Racial Profiling Lawsuit, Ariz. Judge Rules Sheriff Arpaio In Contempt Of Court https://t.co/khiVOWsU7J
— NPR (@NPR) May 14, 2016
And of course Sheriff Joe’s support for The Donald came up:
These decisions amount to skirmishes in a much larger war. Ultimately, immigration law and enforcement is a federal matter and should be enforced by the federal government. Sheriff Joe and his colleagues in the border states could and should be allowed to assist with enforcement to the extent they and their constituents deem it important enough to commit the resources. But that it not the law, for now.
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