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Wed, June 26

Federal judge bars Arizona from enforcing portion of SB 1070

PHOENIX -- A federal judge on Wednesday barred the state from enforcing a provision of SB 1070 aimed at day laborers.

U.S. District Court Judge Susan Bolton said it is illegal for the state to make it illegal for someone to enter a car stopped in traffic to go to work elsewhere. She also struck down another provision criminalizing drivers who stop to pick up laborers.

Bolton rejected arguments the state has a legitimate interest in promoting the free flow of traffic. Instead, she said the real purpose behind the provision was to attack the practice where day laborers would hang around home improvement stores and await offers.

And being a day laborer, she said, is not a crime.

Bolton, who two years ago blocked other key provisions of SB 1070, had allowed this section to take effect. She noted that a three-judge panel of the 9th U.S. Circuit Court of Appeals had upheld a similar law in a California city.

Last September, however, the full 9th Circuit not only ruled the other way but also overturned one of its own 1986 decisions which had upheld a similar 1984 Phoenix ordinance. And Bolton concluded that, based on the legal issues decided in that case, Arizona's law could not withstand legal challenge.

The ruling comes less than two months before the U.S. Supreme Court is set to consider Bolton's earlier ruling which affects provisions aimed at giving police more power to detain and arrest illegal immigrants. While Wednesday's ruling is likely to be appealed by the state, it is too late to make it part of what the high court will consider in April.

Wednesday's ruling disappointed Gov. Jan Brewer who has mounted a legal defense of the law.

"This decision represents another instance of judicial erosion of the state's authority to regulate public safety,' said press aide Matthew Benson.

Attorneys for the state argued that the provision is not aimed at stopping people from soliciting work, which is a constitutionally protected activity.

"In fact, nothing in (the law) prohibits any person from soliciting employment in any manner that does not involve (1) a motor vehicle stopping on a roadway, and (2) conduct that blocks or impedes the normal movement of traffic,' argued both John Bouma, the private lawyer hired by Brewer, and Joe Sciarrotta Jr., her staff legal counsel. Instead, they said the legislation is designed to address the "secondary effects of roadside employment solicitation' including "crime, intimidation and property destruction that results when large groups of day laborers congregate in and along the roadsides.'

Bolton said those are legitimate governmental interests.

But she noted the restriction applies only to those who are looking for work. The judge said that suggests its real purpose was to cut down on day laborers rather than deal with traffic problems.

Anyway, Bolton said, the state has other ways of dealing with those who tie up traffic.

For example, she wrote, motorists who stop or park a car in a way that impedes traffic are subject to fines. And the same is true to open a door on a car or truck if it interferes with traffic.

The provisions in SB 1070, however, carried possible jail time.

But Rep. John Kavanagh, R-Fountain Hills, who crafted the provision, said the new law was needed because the civil statutes did not address the problem.

"That only deals with the driver of the vehicle,' he said. "That doesn't deal with the person who began the entire transaction, the person who beckoned the vehicle, by word or gesture, that he or she was looking for work that caused the vehicle to stop in the first place.'

Bolton, however, said any doubt about the true reason for the legislation disappears when the full measure is considered.

She pointed out that SB 1070 spells out that its purpose "is to make attrition through enforcement the public policy of all state and local governments in Arizona.' It also says the provisions "are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.'

"Nowhere does it state that a purpose of the statutes and statutory revisions is to enhance traffic safety,' Bolton wrote.

Kavanagh said Bolton clearly was unaware that this provision actually was a separate bill approved by the Legislature two years earlier but vetoed by then-Gov. Janet Napolitano.

Victor Viramontes, senior counsel of the Mexican American Legal Defense and Educational Fund, cheered the ruling.

"Today, the court vindicated the rights of day laborers to peacefully solicit work and blocked Arizona's attempt to mute them,' he said in a prepared statement.

Wednesday's ruling is not Bolton's final word on the matter. Instead, she is simply enjoining the state from enforcing the provisions until there can be a full-blown trial.

But Bolton said an injunction is justified because of the harm that results by leaving the law, which took effect in June 2010, on the books in the interim.

"Plaintiffs have shown that they and their members are being chilled from soliciting employment by threat of enforcement,' she wrote. The judge said their First Amendment rights outweigh the state's interest in traffic and public safety.

That language tracks closely with what the Judge Milan Smith Jr. wrote last year in voiding both the California and Phoenix ordinances. He said the problem with these kind of laws is they impose greater restrictions on First Amendment rights than is necessary to achieve a legitimate government goal.

"The ordinance technically applies to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school," the judge wrote. He also said it applies to "a motorist who stops, on a residential street, to inquire whether a neighbor's teen-age daughter or son would be interested in performing yard work or baby sitting."

And Smith, like Bolton, said there are less-restrictive means of dealing with traffic problems.

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