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The latest challenge to SB 1070's controversial Section 2(B)

A protester holds a union anti-SB 1070 sign, May 1, 2010
A protester holds a union anti-SB 1070 sign, May 1, 2010
Photo by SEIU International/Flickr (Creative Commons)

Late last month, the U.S. Supreme Court struck down three of four controversial provisions of Arizona's SB 1070 anti-illegal immigration law that had been temporarily blocked by a lower court. But they upheld the most contentious one, Section 2(B), which empowers local cops to check the immigration status of people they stop or detain if they decide there is "reasonable suspicion" the person is in the country illegally.

So given the court's decision, why, then, is there a renewed legal challenge to Section 2(B) before it takes effect? Like most of the legal wrangling that has surrounded SB 1070, it's complicated.

When they issued their ruling on SB 1070 in late June, the justices made clear that Section 2(B) was not entirely out of the woods. While it did not on its face appear to conflict with federal law - the basis of the federal legal challenge that eventually led SB 1070 to the high court - there was no guarantee that it would not present a conflict once implemented, the justices ruled.

Plus the Supreme Court case did not address racial profiling, a different concern altogether that has been at the center of other legal challenges. Enter the plaintiffs behind Valle del Sol v. Whiting, the lawsuit formerly known as Friendly House v. Whiting, filed back in 2010 by several civil rights and other groups that include the National Immigration Law Center, the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund.

That lawsuit focuses on racial profiling and civil rights concerns; this week, its plaintiffs filed a motion in Phoenix seeking to block Section 2(B) from taking effect on profiling and constitutional grounds, with the assertion that it could violate the Fourth Amendment. They're asking for a temporary injunction that would keep Section 2(B) from taking effect as they seek a permanent block, pointing to issues beyond what the Supreme Court addressed in Arizona v. United States.

From the motion filed in federal court July 17:

On the fourth provision—§ 2(B)—the Supreme Court found that an injunction was not appropriate based on the record before it, but explicitly preserved the possibility that § 2(B) could be enjoined in another action, and identified clear boundaries that § 2(B) may not lawfully cross.

Plaintiffs brought many of the same preemption claims as the United States, including the claims that have invalidated §§ 3, 5(C), and 6. But this action involves additional claims, evidence, and irreparable injuries beyond what the Supreme Court had before it in Arizona. In light of those claims, evidence, and injuries and the Supreme Court’s guidance in Arizona, Plaintiffs bring this Motion for Preliminary Injunction, which presents three issues:

First, Plaintiffs seek a preliminary injunction against § 2(B) of S.B. 1070 on preemption and Fourth Amendment grounds. The Supreme Court stated that if police extend detentions for status verification or other immigration purposes under § 2(B), that will “raise constitutional concerns . . . [a]nd . . . disrupt the federal framework.” Arizona, slip op. at 2.

The Court declined to “assume” that § 2(B) would be implemented in such a manner based on the record before it. Id. at 24. Plaintiffs here submit additional evidence demonstrating that § 2(B) will be implemented in precisely the manner that the Supreme Court deemed unconstitutional thereby irreparably harming any individuals subject to illegal detentions. Given this new evidence, Plaintiffs can establish a likelihood of success or serious questions going to the merits of these claims. Therefore, § 2(B) can and should be preliminarily enjoined—at least until the Arizona Supreme Court definitively interprets the provision in a way that forecloses unconstitutional implementation, which it could do on certification from this Court.

Second, Plaintiffs seek a preliminary injunction against § 2(B) of S.B. 1070 based on their Equal Protection Clause claim. Plaintiffs are likely to succeed in demonstrating that § 2(B) violates the Equal Protection Clause because racial or national origin discrimination was a motivating factor in its enactment.

Even though merits discovery has been stayed in this case, there is already substantial evidence in each of the categories enumerated in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), which is probative of discriminatory intent. And while the evidence on this motion supports a finding of discriminatory intent, at this stage this Court need only find a likelihood of success or serious questions going to the merits of this claim.

There's more, which can be downloaded here. As those watching the legal trajectory of the groundbreaking Arizona law have long understood, the fate of SB 1070 is far from settled.