PHOENIX - Attorneys for the state asked a federal judge late Friday to reject a new bid to block a key provision of SB 1070 from taking effect.
In legal papers filed in U.S. District Court, lawyers for the state said claims by foes of the law that it will necessarily result in racial profiling are "entirely speculative." And John Bouma, the lead attorney for Arizona, pointed out the statute itself "expressly prohibits racial profiling."
It will be up to Judge Susan Bolton to decide whether what opponents have dubbed the "papers please" provision of the 2010 law aimed at illegal immigrants can take effect.
She is under a deadline of sorts.
The U.S. Supreme Court ruled in June that Bolton improperly granted an injunction in 2010 against the same provision even before the law took effect.
But that injunction remains in place until Bolton acts on lifting it. In the meantime, opponents are hoping to get a new bar to the law.
Central to the fight is a provision saying police officers are required to check the immigration status of those they have stopped if there is reason to believe they are in this country legally. Bolton, ruling in a challenge brought by the Obama administration, said that provision illegally infringes on the exclusive right of the federal government to regulate immigration.
The Supreme Court disagreed with her on that point, while agreeing she was correct in blocking three other provisions, including one that would make it a state crime for someone not in this country legally to seek work in Arizona.
In this legal action, opponents noted the justices never addressed whether questioning people about their status would automatically violate their rights, at least in part because of the length of time they would be detained.
The challengers, including the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund, contend there is "ample evidence" of irreparable harm to Hispanics and others who would be "at risk of unlawful detention and interrogation based on little more than an officer's 'reasonable suspicion' that they are 'unlawfully present in the United States.'"
Bouma countered that Gov. Jan Brewer specifically directed the Arizona Peace Officers Standards and Training Board to prepare materials to help officers enforce the law in a racially neutral way. He said police departments already are doing in a voluntary fashion what SB 1070 would make mandatory, and doing it "in a racially neutral way."
He cited statements by Pima County Sheriff Clarence Dupnik, who said the Supreme Court decision "will have no bearing on how his deputies go about their patrols" because "the department already enforces federal immigration law by referring people it suspects are here illegally to the Border Patrol."
Bouma also took a slap at Tucson Police Chief Roberto Villaseñor.
The chief, in an affidavit provided to challengers, said if his officers cannot get immediate answers about the immigration status of those they have stopped, people either will be detained for extended periods or booked into jail to await results. "Either scenario will result in extended detention of thousands of individuals - even if it is for brief periods of time," Villaseñor wrote.
Bouma pointed out that Tucson police have a standing order prohibiting racial profiling. Yet those rules also tell officers what to do if they suspect someone they have stopped is illegally in the country.
"It defies logic to suggest that Tucson law enforcement officers can develop reasonable suspicion of unlawful presence without Section 2(B), but could not develop such reasonable suspicion of unlawful presence if Section 2(B) is enforced," Bouma wrote, referring to the SB 1070 provision. "Villasenor's declaration is therefore patently self-serving, speculative and unreliable."
Bouma also dismissed claims by opponents that "racial and national original discrimination was the motivating factor for the law," based in part on Arizonans voting in 2006 to make English the state's official language.
Bouma said there is "absolutely no evidence" to support the claim that more than 1.1 million people voted for that amendment for discriminatory purposes. Not to mention, Arizona is one of 31 states to adopt English as its official language.
Bouma said anyone seeking an injunction must show "irreparable harm" if the relief is not granted. He said the mere risk that someone will be unlawfully detained is not enough.
Challengers now have until Aug. 20 to reply to what Bouma filed.
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