In a decision in June of 2012, the U.S. Supreme Court decided that three of the four contested provisions of Arizona’s controversial S.B. 1070 could not be upheld because they were pre-empted by federal immigration law.
Section 3 of the law required immigrants to carry papers proving they were legally allowed to be in the country. The Supreme Court said this provision was invalid because the federal government had already provided standards for when and how immigrants should receive and carry documentation. Additionally, Arizona’s law would have provided different penalties for failing to carry the correct paperwork, which conflicted with federal penalties.
The Court also struck down Section 5(c) which would have made it a state crime to apply for and hold a job without valid immigration papers. Once again, the Court said this provision conflicted with federal law by criminalizing something the federal government had explicitly chosen not to criminalize.
Finally, the Court struck down Section 6, which would have allowed a law enforcement officer to arrest someone without a warrant if the officer believed that person had done something that would justify deportation. The Supreme Court said only the federal government had the power to make decisions concerning deportability.
What is the Status of the “Show Me Your Papers” Provision?
The sole section of S.B. 1070 that the Supreme Court upheld in 2012 was the provision requiring police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” that the person is unlawfully present in the U.S. The Court said this section did not violate the constitution because nothing in federal immigration law prohibits state law enforcement officers from reporting the status of an immigrant to federal law enforcement officers. The Court also noted that the Arizona statute had language forbidding discrimination based on race or national origin. Although the Court ruled that the provision was not unconstitutional on its face, the Court left open the possibility that the provision could be challenged at a later time based on the way it is implemented or enforced.
At least one civil rights organization has filed a lawsuit based on implementation at the local level. As a result of a suit brought by the ACLU, officials in South Tucson signed a settlement to avoid litigating a racial profiling complaint. The settlement prohibits South Tucson police from detaining people for extended periods of time to determine immigration status, questioning crime witnesses or students about immigration status, and relying on lack of English fluency to assume someone is in the country unlawfully. The settlement also requires the police to participate in education on bias-free policing, check with a supervisor before making immigration-related inquiries, and articulate to police dispatch the reason for stopping a vehicle at the beginning of a traffic stop.
The ACLU has also sued local Arizona law enforcement officials for using racial profiling when carrying out law enforcement duties unrelated to immigration. A federal district judge ruled in 2013 that the sheriff’s office of Maricopa County was using racial profiling to target Latinos. Last October, the court issued a series of mandates including requiring a monitor to keep tabs on the sheriff’s department, increased training, audio and video recording of traffic stops, the creation of a community outreach plan, and a requirement that officers radio in the reason for stopping a vehicle before making contact with passengers.
CLINIC and its affiliates will continue to monitor incidents of racial profiling in Arizona and the implementation of S.B. 1070 throughout the state.
What about S.B. 1070’s Harboring Provision?
The harboring provision of S.B. 1070 was not a part of the 2012 Supreme Court case but has been the subject of a separate legal challenge. As a result of this lawsuit, the state of Arizona entered into an agreement with the U.S. Department of Justice to drop the harboring provision, which made it a misdemeanor to transport, conceal, harbor, or shield an undocumented immigrant. Arizona had already been barred from enforcing this provision by an injunction issued in federal district court and upheld by the Ninth Circuit Court of Appeals. The Supreme Court declined to get involved in the matter.
Arizona agreed to end the legal battle and refrain from enforcing the harboring provision in a deal approved by a federal judge on June 9, 2014. Harboring an unauthorized immigrant is still prohibited under the Immigration and Nationality Act. However, the Arizona law would have made harboring a state crime as well. It would also have applied the law more expansively, and with different penalties, than the federal law.
Information about the federal harboring law is available on CLINIC’s website.
This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at firstname.lastname@example.org or (301) 565-4807.