PHOENIX - A federal judge on Wednesday virtually cleared the way for Arizona to require police to start questioning suspected illegal immigrants.
In a 12-page ruling, U.S. District Judge Susan Bolton rejected pleas by civil-rights groups for a new injunction to bar enforcement of what has been dubbed the "papers, please" provision of Arizona's SB 1070, requiring that police inquire about the immigration status of anyone they stop, if there is reason to believe that person is in the country illegally.
Challengers argued there is no way to enforce Subsection 2(b) without engaging in racial profiling.
Bolton, however, said there is no evidence of that, at least not now, since the provision has never gone into effect as a result of an injunction Bolton issued two years ago in a suit by the Obama administration that argued the measure illegally conflicts with federal law.
In June, however, the U.S. Supreme Court said Bolton was wrong to issue that injunction without seeing how Arizona actually would enforce the law. That resulted in this new request for an injunction, this one based on complaints of racial bias.
But Bolton said the new challenge has the same flaws as the one the high court rejected.
"This court will not ignore the clear direction" from the Supreme Court that that provision of the law "cannot be challenged further on its face before the law takes effect," Bolton wrote.
Gov. Jan Brewer, who signed the 2010 law, said Wednesday's ruling does not mean police will start questioning people today. The governor said she believes it could take a few weeks for the formal order allowing implementation of the section to be enforced.
The ruling was not a total setback for opponents of SB 1070.
Bolton did agree to bar Arizona from enforcing another section of the law that makes it a crime to transport, conceal, harbor or shield an illegal immigrant from detection. She said that provision conflicts with federal law.
Despite that, Brewer declared the decision a major victory for Arizona. She said it preserves "the heart of SB 1070."
The governor said she is fully aware of that possibility of future challenges if there are claims of racial profiling.
"As I've always said, SB 1070 must be enforced fairly, effectively and without compromising civil rights or the Constitution," she said.
"I know the world is watching," Brewer continued. "But I know that our state and local officers are up to the task."
Wednesday's ruling was criticized by Dan Pochoda of the American Civil Liberties Union, one of the groups involved with the new challenge. He said Bolton wrongfully focused on the lack of evidence of current harm while ignoring the fact that SB 1070 itself is racially motivated.
During a court hearing last month, opponents argued there were racial motivations behind the legislation. They presented statements and emails from legislators - including former state Sen. President Russell Pearce, R-Mesa, the sponsor of the legislation - that they said showed the legislation was specifically designed to target Hispanics.
But Bolton said during that hearing that even if some legislators did have racial motives, the legislation had to be approved by a majority of the House and Senate and signed by Brewer. Bolton said there was "clearly no evidence" that the majority of everyone who voted for the bill "had a discriminatory intent."
While one provision of SB 1070 will be allowed to take effect, at least for the time being, Bolton felt differently about the provision making it a state crime to harbor and transport illegal immigrants. She said that is an area where Arizona may not intrude, pointing out that these activities are federal crimes.
"Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted," Bolton wrote. She said it is "immaterial" that this provision of SB 1070 has the same goals as federal immigration law.
With that ruling, there now are four sections of SB 1070 that have been blocked. While the Supreme Court in June overruled Bolton on police asking about legal status, it ratified her ruling against three other sections that would have given state and local police the power to charge illegal immigrants with violating state laws for seeking work in Arizona without being in the country legally, or failing to carry a federally issued registration card.
Also voided was a section allowing a warrantless arrest if there is "probable cause" a person committed an offense that makes him removable from the country under federal law.
On StarNet: Follow a timeline of events in the battle over Arizona's controversial immigration bill at timeline.azstarnet.com/sb1070
The Tucson Police Department said Wednesday that it will question people it detains about whether they are in the country illegally if there is reasonable suspicion.
However, before it begins to enforce this provision under Arizona's immigration law, known as SB 1070, "it will obtain further guidance regarding the ruling" on Wednesday by U.S. District Judge Susan Bolton, said Sgt. Maria Hawke, a Tucson police spokeswoman.
Department personnel "will receive further clarification and direction following a comprehensive review of the ruling," Hawke said.
Officers have received training regarding SB 1070 provisions, Hawke said.
The date the ruling takes effect is not yet known, Hawke said.
"As I've always said, SB 1070 must be enforced fairly, effectively and without compromising civil rights or the Constitution. I know the world is watching. But I know that our state and local officers are up to the task."
Gov. Jan Brewer