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Judicial Watch • Arizona v USA Pearce SB1070 USSC Amicus 2142012

Arizona v USA Pearce SB1070 USSC Amicus 2142012

Arizona v USA Pearce SB1070 USSC Amicus 2142012

Page 1: Arizona v USA Pearce SB1070 USSC Amicus 2142012

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Date Created:February 13, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Sheriff, officers, pearce, Ninth, police, enforcement, Phoenix, senator, immigration, Illegal Immigration, arizona, Circuit, section, COUNTY, 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, AL., 
Petitioners, 
UNITED STATES AMERICA 
Respondent. Writ Certiorari the United States Court Appeals for the Ninth Circuit 
BRIEF STATE SENATOR 
RUSSELL PEARCE AMICUS CURIAE 
SUPPORT PETITIONERS
 
James Peterson Geoffrey Kercsmar Counsel Record KERCSMAR FELTUS PLLC JUDICIAL WATCH, INC. 6263 Scottsdale Road 425 Third Street, S.W. Suite 320 Washington,  20024 Scottsdale, 85250 jpeterson@judicialwatch.org  (480) 421-1001 
(202) 646-5172 
Counsel for Amicus Curiae 

QUESTION PRESENTED 
The question presented whether the federal immigration laws displace Arizonas plenary policepowers and impliedly preempt their face the four provisions the 1070 enjoined the courtsbelow. 
TABLE CONTENTS 
QUESTION PRESENTED ......................................... 

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

TABLE AUTHORITIES ..................................... iii 

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

SUMMARY ARGUMENT ....................................4 

ARGUMENT ...............................................................5 	
Section 2(B) Provides Guidance Law
Enforcement Officers ....................................6 

II. 	
Section Utilizes Arizonas Police 
Powers Create Penalties for  
Violating the Federal Registration
Scheme .........................................................10 

III.	 
Section Regulates Employment
Under Arizonas Police Powers  ..................12 

IV. 	
Section Defines Officers Existing  
Warrantless Arrest Authority  ....................12 

CONCLUSION..........................................................15 

TABLE AUTHORITIES 
CASES 
Chamber Commerce Whiting, 
131 Ct. 1968 (2011) ...................................... Canas Bica, 
424 U.S. 351 (1976) ........................................ 

Hines
 Davidowitz, 

 312 U.S. (1941) ....................................... 10, 

Medtronic, Inc. Lohr, 
518 U.S. 470 (1996) ............................................11 

Muehler
 Mena, 

544 U.S. (2005) ............................................ 

United States Arizona, 
641 F.3d 339 (9th Cir. 2011)  ....................... 10, 

United States Arizona, 
703 Supp. 980 (D. Ariz. 2010)  .............. 

United States Villa-Velasquez, 
282 F.3d 553 (8th Cir. 2002)  ...............................6 

STATUTES AND CONSTITUTIONAL PROVISIONS 
A.R.S.  11-1051(B) .....................................................7 

A.R.S.  13-1509 .................................................. 10, 

A.R.S.  13-2928(C) ...................................................12 

A.R.S.  13-3883(A)(5)  ..............................................13
 U.S.C.  1253(a) .....................................................14
 U.S.C.  1324a ........................................................12 

INTEREST THE AMICUS CURIAE1 
State Senator Russell Pearce the author of, and driving force behind, the Support Our LawEnforcement and Safe Neighborhoods Act, known asSB 1070. the author 1070, Senator Pearce submits this brief support Petitioners and offers his unique perspective the meaning theprovisions 1070. Because the Ninth Circuit upheld facial challenge 1070, there are facts the record illuminate how the enjoinedprovisions might have been applied Arizona law enforcement officials. Therefore, Senator Pearce best positioned speak how the enforcement ofSB 1070 was envisioned. 
During his years the Arizona State Legislature,2 Senator Pearce authored numerous historic legislative initiatives designed protect the State Arizona from the adverse effects unlawfully present aliens and, most importantly, uphold the rule law. These include: Proposition100, State constitutional amendment deny bondto any person unlawfully present the United States who commits serious crime Arizona; Pursuant Supreme Court Rule 37.6, amicus states that counsel for party authored this brief whole part; andthat person entity, other than amicus and his counsel, made monetary contribution intended fund the preparationand submission this brief.  All parties have consented thefiling this brief; letters reflecting this blanket consent havebeen lodged with the Clerk. Senator Pearce was member the Legislature for elevenyears, including serving Senate President. 
Proposition 102, which states that personunlawfully present the United States who sues anAmerican citizen cannot receive punitive damages;Proposition 200, which requires individuals produce proof citizenship before they may register vote; and the Legal Arizona Workers Act, upheldby this Court last Term Chamber Commerce Whiting, 131 Ct. 1968 (2011) (prohibitingemployers from hiring unauthorized workers and requiring use federal E-Verify system confirmemployee eligibility). Senator Pearces initiatives have served models for similar legislation innumerous other States across the nation. 
Even though only certain provisions 1070 have thus far been implemented, they have been credited with significant effect the crime rate Arizona.3 According the Phoenix Law Enforcement Association (PLEA), associationrepresenting rank-and-file police officers the City Phoenix: 1070 has been endorsed by, among others, the following law enforcement groups and officials: Arizona Police Assn (representing over 9,000 police officers); Maricopa County Sheriff Arpaio; Pinal County Sheriff Babeu; Mohave CountySheriff Sheahan; Yavapai County Sheriff Waugh; Cochise County Sheriff Dever; Gila County Sheriff Armer; NavajoCounty Sheriff Clark; Graham County Sheriff Allred; GreenleeCounty Sheriff Tucker; Arizona Fraternal Order Police (FOP); Phoenix Law Enforcement Assn (2,600 members);Maricopa Deputy's Law Enforcement Assn (representing 800 officers); Maricopa County Detention Officers Assn; Glendale Police Officers Assn; Mesa Police Officers Assn; Chandler County Police Officers Assn; Border Patrol Officers Assn;Arizona Highway Patrol Assn. 
Since 1070, Phoenix has experienced 30-year low crime rate.Six hundred police vacancies, budgetcuts, and old policing strategies didntbring about these falling crime rates.SB 1070 did. When hard-working rankand-file Phoenix Police Officers were given access the tool 1070, thedeterrence factor this legislation brought about was clearly instrumentalin our unprecedented drop crime. And all this without single civil rights, racial profiling, biased policing complaint. ignore the positive impact 1070 the City Phoenix ignore the hugeelephant the middle the room. 
Statement PLEA President Mark Spencer (Sept.2011). 
The employment-related provision 1070 atissue here (Section complement the Legal Arizona Workers Act, upheld Chamber Commerce Whiting, 131 Ct. 1968. Senator Pearces view, this provision essential component holding employers responsible forhiring unauthorized workers. These scofflaw employers, who put profits over patriotism hiring unlawfully present aliens, should denied the substantial benefit they receive paying substandard wages and failing comply with applicable laws relating social security, unemployment, Medicare, and occupational health and safety standards. author 1070, Senator Pearce has direct interest this matter and unique perspective,and therefore, respectfully submits this amicus curiae brief. 

SUMMARY ARGUMENT 
The provisions 1070 put hold the courts below are not preempted federal law, asthey utilize Arizonas well-established police powers address the effects unlawfully present aliens.The provisions would significantly assist Arizonaseffort protect its citizens from the adverse effectsof illegal immigration they: 
 	
Provide additional guidance Arizona lawenforcement officers how interact with individuals who may not lawfully present.Section 2(B). 

 	
Invoke ordinary state police powers create state criminal penalties for the failure comply with federal law.  Section 

 	
Utilize Arizonas broad authority regulateemployment under its police powers protect its 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 arrestof individual who has already been determined have committed public offense that makes him removable. Section 

Senator Pearce carefully crafted these provisions, relying the States plenary police power furtherlegitimate state goals. reaffirm that Arizona retains the authority enact such measures, thisCourt should reverse the decision below. 

ARGUMENT 
Contrary the view the United States, notevery state action related aliens preempted federal law. This nation has system dualsovereignty and only state laws that regulateimmigration are preempted federal law. Almost years ago, this Court made clear that the merefact that aliens are the subject state statute doesnot render the statute regulation immigration. Canas Bica, 424 U.S. 351, 356 (1976). Only thedetermination who should should not admitted into the country, and the conditions under which that person may remain, constitutes theregulation immigration.  Id. Accordingly, SenatorPearce crafted 1070 reliance the principlethat Arizona has authority utilize its police powers areas concerning immigration long did not regulate immigration.    
The provisions 1070 issue notregulate immigration, they not impose new restrictions the manner which alien enters remains the country. Instead, the provisions utilize Arizonas police powers and regulateunlawfully present aliens consistent with federal objectives. The provisions authorize and direct Arizona law enforcement officers cooperate andcommunicate with federal officials regarding theenforcement federal immigration law and impose penalties under Arizona law for non-compliance with federal 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 lawenforcement 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 power the authority investigate possible violations the criminal provisions federal immigration laws,including the authority inquire about personsimmigration status. 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. 2d980, 998 n.12 (D. Ariz. 2010); see also Muehler Mena, 544 U.S. 93, 100 (2005).  Thus, even prior tothe enactment Section 2(B), Arizona law enforcement officers had authority inquire about persons immigration status. 
Facing severe adverse effects illegalimmigration (see Brief for Petitioners pp. 18),Senator Pearce sought provide Arizona lawenforcement officers with additional guidance how interact with individuals who may not lawfully present. Cognizant the existing authority Arizona law enforcement officers, Senator Pearce undertook define their 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 the course lawful stop, detention, arrest, officer develops reasonable suspicion thatthe person alien and not lawfully present the United States. A.R.S.  11-1051(B). officer need not make inquiry doing notpracticable may otherwise hinder obstruct aninvestigation. Id. evident from the plain language theprovision, Senator Pearce carefully crafted Section2(B) that did not authorize Arizona lawenforcement officers stop persons solely inquire about their immigration status. Officers are not free ask all persons whom they stop, detain, arrestabout their immigration status.  For Section 2(B) toapply, there must lawful stop, detention, arrest and there must reasonable suspicion that person 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 not 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 investigation. Moreover, the officer need onlymake reasonable attempt determine thepersons immigration status. reasonable attemptmay consist nothing more than simple questionand oral response. addition, Section 2(B) contains presumptionof legal 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 suspectedunlawfully present alien.  What practicable andreasonable left the law enforcement officers discretion and obviously will depend the unique circumstances each particular stop, detention, arrest. illustrate how Senator Pearce 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 bylocal, 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,later claimed section 1983 lawsuit that the officers violated her Fourth Amendment rights byquestioning her about her immigration status without independent reasonable suspicion.  Id. 100-101. The Ninth Circuit agreed, but this Courtreversed: This holding, appears, was premised onthe assumption that the officers were required tohave independent reasonable suspicion order toquestion Mena about her immigration status but the premise faulty. 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 because there was reasonablesuspicion make such inquiry, but the Courtsholding Mena shows that such inquiry under these facts would not have exceeded the law enforcement officers authority even prior 1070s enactment. 
Hence, under Section 2(B) Arizona law enforcement officers retain complete discretion todetermine the scope any inquiry even decline conduct inquiry not practicable will hinder obstruct investigation. Again, inquiry under Section 2(B) may satisfied asimple question and oral response. also may satisfied the production valid Arizona driverlicense other government identification. 
Section 2(B) well within the plenary policepowers the State, simply defines officers available discretion consistent with existing federal law. 
II. 	Section Utilizes Arizonas Police  Powers Create Penalties for    Violating the Federal Registration   Scheme. 
Section provides that person guilty ofwillful failure complete carry alien registration document the person violation of8 United States Code section 1304(e) 1306(a).
A.R.S.  13-1509. Section simply codifies federal law essentially makes state crime for unlawfully present aliens Arizona violatefederal registration laws.  See United States Arizona, 641 F.3d 339, 355 (9th Cir. 2011). 
This provision exercises the States plenarypolice power penalize individuals who have failed comply with federal alien registration laws. The provision way enacts state-based registration scheme, such the one this Court disallowed Hines Davidowitz, 312 U.S. (1941). onlycreates state penalties for failing comply with federal law, common practice other areas that are exclusively federal powers. See Medtronic, Inc. Lohr, 518 U.S. 470, 495 (1996). 
Senator Pearce carefully crafted Section sothat, unlike the state registration scheme Hines, Section did not provide for any additional conditions under which lawfully present alien may remain the United States. fact, the provision includes special safeguards for lawfully presentaliens. avoid running afoul Section alawfully present alien simply has what healready required  apply for registrationwith the federal government provided for
U.S.C.  1306(a) and at all times carry with him and have his personal possession any certificate alien registration alien registration receipt cardissued 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 alienforgets his federal registration documentation home, not required obtain federal registration documentation, otherwise has authorization from the federal government remainin the United States, that lawfully present alienwould not violation Section  Hence, Section creates additional conditions uponwhich lawfully present alien may remain the country and entirely proper use the Statespolice powers. 
III. 	Section Regulates Employment    Under Arizonas Police Powers. 
Section provides that it unlawful for aperson who unlawfully present the UnitedStates and who unauthorized alien knowingly apply for work, solicit work public place perform work employee independent contractor Arizona. A.R.S.  132928(C). 
Section simply reinforces federal law. Under federal law, U.S.C.  1324a, unlawful toknowingly hire illegal alien for employment. assist employers complying with this federal law,Senator Pearce carefully crafted Section ensurethat only those who may lawfully work would applyfor jobs. 
Moreover, the provision embraces 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).  Section therefore does more than protect the jobs thosewho may lawfully work from those who cannot lawfully work under federal law. 
IV. 	Section Defines Officers 
   Existing Warrantless Arrest 
Authority. 

Section amends existing Arizona statute specifically authorize law enforcement officer arrest individual without warrant the officer has probable cause believe that [t]he person bearrested has committed any public offense thatmakes 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, Section crafted more than make clear that Arizona law enforcement officers have the specific authority make warrantless arrest individuals who have committed felony under federal law. 
Senator Pearce also recognized that Arizona lawenforcement 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. 
Section applies, for example, when Arizona law enforcement officer runs individual=s name through the National Crime Information Centerdatabase and the response that the Arizona lawenforcement officer receives from the federal government that the individual immigrationabsconder. other words, the federal government would have informed the Arizona law enforcement officer that the individual had previously been foundto 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 anindividual against whom final order removal isoutstanding willfully fail[] refuse[] depart.). Therefore, Section simply makes clear that Arizona law enforcement officers have authorityto arrest without warrant individuals who have willfully failed refused depart after having been ordered removed federal immigration judge. 
Finally, important note that Ninth Circuits interpretation Section entirely erroneous and without any basis the text. According the Ninth Circuit, Section providesfor 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 subjectthe person removal from the United States.  641 F.3d 361 (quoting United States Arizona, 703 Supp. 1005) (emphasis original). The panelmajority, like the district court, inserted the wordscommitted crime another state into the statute. explained above, Section defines thealready existing warrantless authority officers toarrest persons who have committed felonies under federal law. The panel majoritys tortured construction the statute was not necessary correct, those words simply not appear Section 
Section defines the existing warrantless arrestof Arizona law enforcement officer and not preempted. 

CONCLUSION 
For the foregoing reasons, Senator Pearce respectfully requests that this Court reverse theNinth Circuits decision and hold that 1070 not preempted federal law. 
Respectfully submitted, 
James Peterson 
  Counsel Record 
JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 jpeterson@judicialwatch.org
(202) 646-5172 
Geoffrey KercsmarKERCSMAR FELTUS PLLC 6263 Scottsdale Road Suite 320 Scottsdale, 85250 
Counsel for Amicus Curiae 
February 13, 2012



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