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Judicial Watch • Arizona v US USSC Amicus 09122011

Arizona v US USSC Amicus 09122011

Arizona v US USSC Amicus 09122011

Page 1: Arizona v US USSC Amicus 09122011

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Number of Pages:17

Date Created:September 12, 2011

Date Uploaded to the Library:February 20, 2014

Tags:powers, Scottsdale, officers, legislature, Ninth, enforcement, table, immigration, Illegal Immigration, arizona, Circuit, section, federal, State, Supreme Court, states, united, court, EPA, ICE, CIA


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No. 11-182 THE Supreme Court the United States 
STATE ARIZONA AND JANICE BREWER, GOVERNOR THE STATE ARIZONA, Petitioners, 
UNITED STATES, 

     Respondent. Petition for Writ Certiorari the United States Court Appeals for the Ninth Circuit 
BRIEF AMICUS CURIAE
 ARIZONA STATE LEGISLATURE SUPPORT PETITIONERS 

Paul Orfanedes Geoffrey Kercsmar Counsel Record KERCSMAR FELTUS PLLC James Peterson 6263 Scottsdale Road, JUDICIAL WATCH, INC. Suite 320 425 Third Street, S.W. Scottsdale, 85250 Suite 800 (480) 421-1001Washington, D.C. 20024
(202) 646-5172 porfnedes@judicialwatch.org 
Counsel for Amicus Curiae 
TABLE CONTENTS 

TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ...................................... 

INTEREST AMICUS CURIAE ............................1 

STATEMENT THE CASE ....................................2 

REASONS FOR GRANTING THE PETITION .........2 

REVIEW WARRANTED BECAUSE THE 
DECISION BELOW CALLS INTO QUESTION 
THE WELL-ESTABLISHED POLICE POWERS STATE PROTECT ITS CITIZEN..........3 	
Section 2(B) provides Guidance Law Enforcement Officers...............................................4 	
Section Utilizes Arizonas Police Powers 
Create Penalties for Violating the Federal Registration Scheme .................................................8 	
Section Regulates Employment Under Arizonas Police Powers .............................................10 	
Section Defines Officers Existing Warrantless 
Arrest Authority ................................................11 

CONCLUSION..........................................................13
 
TABLE AUTHORITIES 
CASES PAGE Canas Bica,  
424 U.S. 351 (1976) ..................................
 
Hines Davidowitz,  312 U.S. (1941) ......................................... 
Medtronic, Inc. Lohr, 
518 U.S. 470 (1996) ........................................ 

Muehler Mena, 544 U.S. (2005) ...................................... 
United States Arizona, 641 F.3d 339 (9th Cir. 2011) .................... 
United States Arizona, 
703 Supp. 980 (D. Ariz. 2010) ......... 

United States Villa-Velasquez, 282 F.3d 553 (8th Cir. 2002) .......................... 
iii 
CONSTITUTIONAL PROVISIONS 
AND STATUTES 
Ariz. Const. art part  ......................................1 

A.R.S.  11-1051(B) .....................................................5 

A.R.S.  13-1509 ...................................................... 

A.R.S.  13-2928(C) ...................................................10 

A.R.S.  13-3883(A)(5) ...............................................11
 U.S.C.  1253(a)......................................................12
 U.S.C.  1304(e) ....................................................
 U.S.C.  1306(a)....................................................
 U.S.C.  1324a ........................................................10 

OTHER AUTHORITIES  
Transcript, Chamber Commerce Whiting, No. 
09-115, Oral Argument (Dec. 2010).......1-2
 

INTEREST THE AMICUS CURIAE1 
The Arizona State Legislature (the Legislature) the constitutionally created legislativebranch the State Arizona.  Ariz. Const. art. part  
The Legislature submits this brief support thepositions taken the Petitioners and set forth itsunique perspective the meaning 1070. Because the Ninth Circuit upheld facial challengeto 1070, there are facts the record illuminate how the enjoined provisions might have beenapplied Arizona law enforcement officials. Therefore, the Legislature best positioned speak how the enforcement 1070 was envisioned. 
The Legislature enacted 1070 address the adverse effects illegal immigration within the State. This was necessary because, Justice Scalia recently noted, nobody would [have thought] that. the Federal Government would not enforce [immigration laws]. course, one would have expected that. Transcript, Chamber Commerce Pursuant Supreme Court Rule 37.6, amicus curiae states that counsel for party authored this brief whole part; and that person entity, other than amicus curiae and their counsel, made monetary contribution intended tofund the preparation and submission this brief.  More than ten days prior the due date, counsel for amicus curiae provided counsel for the parties with notice intent file.  All parties have consented the filing this brief; letters consent have been lodged with the Clerk. 
Whiting, No. 09-115, Oral Argument (Dec. 2010)at pp. 7-8. Hence, the Legislature invoked its well-established police powers crafting 1070, for thepurpose protecting the people Arizona. Rather than welcoming the Legislatures enactment, theUnited States sued Arizona.2 
STATEMENT THE CASE 
The Legislature adopts the recitation the case set forth the petition.   
REASONS FOR GRANTING THE PETITION 
This Court should grant certiorari resolve the questions raised the decision below theauthority the States regulate areas touching onimmigration. The provisions 1070 put holdby the Ninth Circuit would significantly assist Arizonas effort protect its citizens from the adverse effects illegal immigration. Specifically, theprovisions: 
	 Provide additional guidance Arizona lawenforcement officers how interact with individuals who may not lawfully present.Section 2(B). Under statute enacted after commencement this litigation, the Legislature has been specifically authorized todefend 1070, together with Governor Brewer. S.B. 1117. The Legislature has subsequently intervened defendantbefore the district court, and, the event this Court agrees toreview this case, anticipates that will move participate party before this Court. 
	 Utilize ordinary state police powers create state criminal penalties for the failure tocomply with federal law.  Section 
	 Invoke Arizona=s broad authority regulate employment under its police powers protectits economy and lawfully resident labor forcefrom the harmful effects resulting from the employment unlawfully present aliens.  Section 5(C). 
	 Re-emphasize Arizona law enforcement officers pre-existing warrantless arrest authority authorizing warrantless arrest individual who has already been determined have committed public offense that makes him removable. Section 
The Legislature adopted these provisions under itsplenary power further legitimate state goals. ensure that Arizona retains the authority enactsuch measures, the Petition warrants this Courts review. 
REVIEW WARRANTED BECAUSE THE DECISION BELOW CALLS INTO QUESTION THE WELL-ESTABLISHED POLICE POWERS STATE PROTECT ITS CITIZENS 
Contrary the view the United States, notevery state action related aliens preempted federal law. This nation has system dual sovereignty and only state laws that regulate immigration are preempted federal law. Almost years ago, this Court made clear that the mere fact that aliens are the subject state statute does notrender regulation immigration. Canas Bica, 424 U.S. 351, 356 (1976). Only the determination who should should not admitted into the country, and the conditions under which that personmay remain, the regulation immigration. Id. Accordingly, the Legislature enacted 1070 inreliance the principle that had authority utilize well-established police powers areas touching immigration long did not regulateimmigration. 
The provisions 1070 issue not impose new restrictions the manner which alien enters the country. Nor they create any newrequirements for such individuals remain the country. They certainly not impose new conditions under which legal entrant may remain the country. The provisions simply authorize and direct Arizona law enforcement officers cooperate andcommunicate with federal officials and imposepenalties under state law for non-compliance withfederal law. Hence, these provisions mirror federalobjectives while furthering legitimate state goals. 	Section 2(B) Provides Guidance Law Enforcement Officers. 
There dispute that state and local law enforcement officers have authority enforce the criminal provisions federal immigration laws.  See, e.g., United States Villa-Velasquez, 282 F.3d 553, 555-56 (8th Cir. 2002).  Implicit this authority isthe authority investigate possible violations the criminal provisions federal immigration laws,including the authority inquire about personsimmigration status. Even the United States has conceded the existing discretion state and local law enforcement officers verify persons immigration status during the course lawful stop,detention, arrest. United States Arizona, 703 Supp. 980, 998 n.12 (D. Ariz. 2010); see also Muehler Mena, 544 U.S. 93, 100 (2005). Thus, even prior the enactment Section 2(B), Arizona law enforcement officers had authority inquireabout persons immigration status. 
Facing severe adverse effects illegal immigration(see Petition 19-21), the Legislature sought toprovide Arizona law enforcement officers with additional guidance how interact with individuals who may not lawfully present. Cognizant ofthe existing authority the Arizona law enforcement officers, the Legislature undertook define the available discretion consistent with federal law and create unitary framework. 
Pursuant Section 2(B), Arizona law enforcement officers must make reasonable attempt determine persons immigration status, if, during thecourse lawful stop, detention, arrest, anofficer develops reasonable suspicion that the person alien and not lawfully present the United States. A.R.S.  11-1051(B). officer need not make inquiry doing not practicable may otherwise hinder obstruct investigation.  Id. evident from the plain language the provision, the Legislature carefully crafted Section 2(B) that did not authorize Arizona law enforcement officers stop persons solely inquire about theirimmigration status, nor are officers free ask allpersons whom they stop, detain, arrest abouttheir immigration status.  For Section 2(B) apply,there must lawful stop, detention, arrest and there must reasonable suspicion that person isan alien and not lawfully present the United States. 
When lawful stop, detention, arrest has been effected and Arizona law enforcement officer has reasonable suspicion that person alien and isnot lawfully present the United States, the law enforcement officer still has considerable discretion about when and how inquire about the personsimmigration status. The law enforcement officer only needs inquire about the person=s immigration status the officer believes practicable and that will not otherwise hinder obstruct the investigation. Moreover, the officer need onlymake reasonable attempt determine thepersons immigration status. reasonable attemptto determine person=s immigration status mayconsist nothing more than simple question andan oral response. addition, Section 2(B) contains presumption oflegal presence the suspected unlawfully presentalien presents valid Arizona driver license, other similar, government-issued identification. Arizona law enforcement officer determines that further inquiry necessary, the officer may find appropriate contact the federal government=s Law Enforcement Support Center (LESC) inquireabout the immigration status suspected unlawfully present alien.  What practicable and reasonable left the law enforcement officers discretion and obviously will depend the unique circumstances each particular stop, detention, arrest. illustrate how the Legislature envisioned Section 2(B)s enforcement, this Court can look thefactual circumstances Muehler Mena, 544 U.S. (2005). Mena, the Court considered the questioning woman who had been detained local,California law enforcement officers during the execution search warrant. Id. 96. The officers asked the woman her name, date birth, place birth, and immigration status. Id. The woman, who was lawful permanent resident alien, laterclaimed section 1983 lawsuit that the officers violated her Fourth Amendment rights questioning her about her immigration status without independent reasonable suspicion. Id. 100-101. The Ninth Circuit agreed, but this Court reversed: Thisholding, appears, was premised the assumptionthat the officers were required have independentreasonable suspicion order question Mena about her immigration status but the premise isfaulty. Mena, 544 U.S. 100-01. Under Section 2(B), Arizona law enforcement officers would not have been required ask Mena about her immigration status but clearly would have had the discretion because there was reasonable suspicion make such inquiry. 
Hence, under Section 2(B) Arizona law enforcement officers retain complete discretion determine the scope any inquiry even decline conduct inquiry not practicable will hinder obstruct investigation.  Again, inquiry underSection 2(B) may satisfied simple questionand oral response. also may satisfied the production valid Arizona driver license othergovernment identification. 
Hence, Section 2(B) well within the police powers the State, simply defines officers available discretion consistent with federal law. 	Section Utilizes Arizonas Police  Powers Create Penalties for Violating the Federal Registration Scheme. 
Section provides that person guilty willful failure complete carry alien registration document the person violation UnitedStates Code section 1304(e) 1306(a).  A.R.S.  131509. Section simply codifies federal law itessentially makes state crime for unauthorized immigrants violate federal registration laws. United States Arizona, 641 F.3d 339, 355 (9th Cir.2011). 
Through this provision, the Legislature exercised its well-established police power penalize individuals who have failed comply with federal alien registration laws.  The Legislature recognized that itcould not enact state-based registration scheme, such the one this Court disallowed Hines Davidowitz, 312 U.S. (1941). Nor did want so. Thus created state penalties for failing comply with federal law, common practice inother areas that are exclusively federal powers. See Medtronic, Inc. Lohr, 518 U.S. 470, 495 (1996). 
The Legislature therefore carefully crafted Section that unlike the state registration scheme Hines, Section did not provide for any additionalconditions under which lawfully present alien may remain the United States. fact, the Legislature enacted special safeguards for lawfully presentaliens. Under Section lawfully present aliensimply has apply for registration with the federal government already required U.S.C.  1306(a) and at all times carry with him and have inhis personal possession any certificate alien registration alien registration receipt card issued him required  U.S.C. 1304(e). Even that minimal requirement has caveat. Section also states that does not apply person who maintains authorization from the federal government remain the United States. A.R.S.  13-1509.Therefore, lawfully present alien forgets his federal registration documentation home, isnot required obtain federal registration documentation, otherwise has authorization from the federal government remain the United States, that lawfully present alien would not violationof Section Hence, Section creates additional conditions upon which lawfully present alien mayremain the country and entirely proper useof the Legislatures police powers. Section Regulates Employment Under Arizonas Police Powers. 
Section provides that it unlawful for personwho unlawfully present the United States andwho unauthorized alien knowingly apply forwork, solicit work public place perform work employee independent contractor thisstate. A.R.S.  13-2928(C). 
Section simply reinforces federal law. Under federal law, U.S.C.  1324a, unlawful knowingly hire illegal alien for employment. assist employers complying with this federal law,the Legislature carefully crafted Section ensure that only those who may lawfully work would applyfor jobs. 
Moreover, the Legislature recognized the well-established principle that states possess broad authority under their police powers regulateemployment protect workers within the state. Canas Bica, 424 U.S. 315, 356 (1976) (Statespossess broad authority under their police powers toregulate the employment relationship protectworkers within the state.). Section therefore does more than protect the jobs those who may lawfully work from those who cannot lawfully workunder federal law. 	Section Defines Officers Existing 
Warrantless Arrest Authority. 

Section amends existing Arizona statute toauthorize specifically law enforcement officersauthority arrest individual without warrantif the officer has probable cause believe that [t]heperson arrested has committed any publicoffense that makes the person removable from the United States. A.R.S.  13-3883(A)(5).  Section also mirrors federal objectives and furthers legitimate state goal. noted above, undisputed that state and local law enforcement officers have authority toenforce criminal provisions federal immigration laws. Therefore, the Legislature carefully crafted Section more than make clear that Arizona law enforcement officers have the specific authority make warrantless arrest individuals who have committed felony under federal law. 
The Legislature also recognized that Arizona law enforcement officers cannot make determination about what type offense might make personremovable otherwise engage analysis ofremovability. Therefore, Section only permits Arizona law enforcement officers the authority arrest individuals who have willfully failed refused depart after having been ordered removed federal immigration judge. 
The Legislature envisioned Section used such when Arizona law enforcement officer runs individual=s name through the NationalCrime Information Center database and the response that the Arizona law enforcement officer receives from the federal government that the individual immigration absconder. other words, the federal government would have informedthe Arizona law enforcement officer that the individual had previously been found removable and had been ordered removed, but had absconded the removal orders. Id. Under federal law, that individual would have committed felony. U.S.C. 1253(a) (it felony for individual againstwhom final order removal outstanding towillfully fail[] refuse[] depart.).  Therefore, Section simply makes clear that Arizona law enforcement officers have authority arrest without warrant individuals who have willfully failed orrefused depart after having been ordered removed federal immigration judge. important note that the decision below premised interpretation Section withoutany basis the text. According the Ninth Circuit, Section provides for the warrantless arrest person where there probable cause believe the person committed crime another state that would crime had been committed Arizona and that would subject the person removal fromthe United States. 641 F.3d 361 (quoting United States Arizona, 703 Supp. 1005) (emphasis original).  The panel majority, like the district court, inserted the words committed crime another state into the statute. The Legislature did not write those words. explained above, Section defines the already existing warrantless authority officers arrest persons who have committed felonies under federal law.  The panel majoritys tortured construction the statute was not necessary correct.  Section therefore more than define the existing warrantless arrest authority ofArizona law enforcement and not preempted. 
CONCLUSION 
For the foregoing reasons, the Legislature requeststhat the petition for writ certiorari granted. Respectfully submitted, 
Paul Orfanedes 
Counsel Record 
James Peterson JUDICIAL WATCH, INC. 425 Third St., S.W., Ste. 800 Washington, D.C. 20024 
(202) 646-5172porfanedes@judicialwatch.org 
Geoffrey KercsmarKERCSMAR FELTUS PLLC 6263 Scottsdale Road Scottsdale, 85004 
(480) 421-1001 
Counsel for Amicus Curiae 
September 12, 2011



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