A federal district court judge in Arizona has upheld two identity theft laws used to prosecute illegal aliens in employment raids by Maricopa County Sheriff Joe Arpaio.
The case involves the constitutionality of two Arizona laws that provide for criminal penalties when an act of identity theft is done with the intent to obtain or continue employment (statute amended in 2007 and 2008 to apply specifically to the use of false identities to obtain employment), and another statute that makes it a crime to commit forgery (passed in 1977).
Most of the tips that generated investigations by the Maricopa County Sheriff’s Office (MCSO) were from citizens in the community about a place of business or its employees and were made on telephone and email hotlines set up by the MCSO. The department would investigate, and if there was evidence of a crime, would apply for and execute a search warrant for the employment worksite. While executing the warrant, the MCSO would seize employment files and arrest workers they believed had committed identity theft or forgery.
The MCSO conducted over 80 workplace investigations resulting in the arrest of 806 employees who “were almost exclusively unauthorized aliens,” the Court’s Order said.
The plaintiffs argued that the three Arizona State laws were preempted under federal law when applied to illegal aliens who commit fraud to show authorization to work under federal immigration law, or when they do so during the federal employment verification process. The plaintiffs also complained that the two identify theft statutes were enacted with the purpose of discriminating against illegal aliens and are on their face invalid under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. They filed the lawsuit to seek a judicial declaration and an injunction to block the application of the laws.
The case styled Puente Arizona, et al. v. Joseph M. Arpaio, et al., was filed by plaintiffs which included two illegal aliens whom had been convicted of identity theft felonies in Arizona. They both used false names to obtain employment. Several residents of Marciopa County who object to their tax dollars being used to prosecute illegal aliens for identity theft or forgery when trying to obtain employments are also plaintiffs.
Plaintiff Puente is an organization in Arizona that according to its website, “The Puente Human Rights Movement is a grassroots migrant justice organization based in Phoenix, Arizona. We develop, educate, and empower migrant communities to protect and defend our families and ourselves,” it states. They say they were “formed in 2007 in response to the first agreement between policy and federal immigration (287g) in Arizona.” They add, “This agreement led to cruel attacks on our community at the hands of Maricopa County Sheriff Joe Arpaio.”
Numerous plaintiffs, on behalf of themselves and “all others similarly situated,” sued Sheriff Joe Arpaio, Maricopa County Attorney Bill Montgomery, and Robert Halliday, director of the Arizona Department of Public Safety (all sued in their official capacities), as well as, the State of Arizona and Maricopa County. The Federation for American Immigration Reform (FAIR) was also named as a defendant.
United States District Judge David Campbell granted the defendants’ motion for summary judgment on the equal protection argument. As to the preemption claim, the judge granted in part plaintiffs’ motion for summary judgment (with respect to the preemption of defendants’ use of federal Form I-9 and attached documents but denied it as to the other claims) and the judge did the same on defendants’ motion (granted on other preemption claims but denied as to use of Form I-9). In short, the judge found that Arizona officials cannot use Form I-9s to prosecute based on federal preemption grounds but it would not prevent the use of other fraudulent documents. Movants on a motion for summary judgment have the burden to show that there is an absence of a genuine issue of material fact.
Judge Campbell wrote in his opinion, “After carefully reviewing these statutes, the Court cannot conclude that Congress has expressed a clear and manifest intent to occupy the field of unauthorized alien fraud in seeking employment.”
The Court heard oral arguments on October 13, 2016.
The judge referred to the illegal aliens in his order as “unauthorized aliens.” His order, attached below, is divided into sections that discuss the federal laws and regulations that govern the employment of illegal aliens, and the Arizona state laws challenged as preempted and unconstitutional by the plaintiffs. A history and background of the case is also included, as are the facts relating to Arpaio’s Maricopa County Sheriff’s Office and the Office of the County Attorney.
The Order states that Sheriff Arpaio “acknowledges that a majority of those referred by law enforcement agencies for identity theft prosecutions are unauthorized aliens.” Ninety-three percent of the MCSO referrals of identity theft and forgery cases were from investigations by the MCSO.
The executive director and general counsel for the Immigration Law Reform Institute (IRLI), Dale L. Wilcox told Breitbart Texas, “This is very much a welcome decision. But, unfortunately, it’s a surprising one. Federal judges all over the country have routinely recognized the ‘constitutional rights’ of illegal aliens in their knocking back of laws passed by states wishing to restrain effects of mass illegal immigration.”
Wilcox added, “Thankfully, this decision struck a blow against a very serious problem in this country, mass identity theft; an offense that disproportionately hurts American children.”
The plaintiffs have until on or before December 7 to file a memorandum on the appropriate remedy in the case, and defendants have until December 21 to file a response. Plaintiffs must file any reply to the defendants’ response on or before January 4. A memorandum on whether plaintiff is entitled to injunctive relief and any response and reply are ordered due under the same timelines.
The judge noted in his Order that “Sheriff Arpaio recently lost a general election and will no longer be in office to pursue the policies about which Plaintiffs complain.”
Arpaio was officially charged with criminal contempt-of-court over claims he ignored a judge’s order in a racial profiling case, as reported by Breitbart Texas on October 25. The move by the federal government came just two weeks before Arpaio stood before the voters of Maricopa County for re-election to his seventh term. Breitbart Texas had reported on October 11 that prosecutors for the Department of Justice were preparing charges for his alleged violations of a court order on racial profiling. At that time, Judge Susan Bolton asked the prosecutors to write a “show cause order” for her to sign.
Arpaio claimed the charges by the Obama Justice Department are politically motivated in an election ad, Fox News reported. Arpaio’s lawyer, Mel McDonald told Fox News he believed “that when the final chapter is written, he (Arpaio) will be vindicated.”
Arpaio was sued by the American Civil Liberties Union (ACLU), the Mexican American Legal Defense and Educational Fund (MALDEF), and a law firm that Eric H. Holder, Jr. works for. Holder was a partner at the firm for six years prior to his appointment as U.S. Attorney General, and Holder returned to the firm after he left his post. The law firm has been reported as “a key player in the opposition to Arizona’s anti-illegal immigration law.”
Arpaio criticized Holder for among other things, how he handled Operation Fast and Furious, and for not being a supporter of peace officers. Holder was held in contempt of Congress in June 2012 over the ATF’s Fast and Furious gun-running scandal. There were 255 House members who voted to hold the sitting Attorney General in contempt, including 17 Democrats. Holder and the DOJ would not comply with an October 2011 subpoena to turn over thousands of documents related to Operation Fast and Furious. Breitbart Texas has reported extensively about Border Patrol Agent Brian Terry who was slain in Arizona while on patrol. Two of the guns involved in the ambush were eventually tied to the Fast and Furious operation. After two officers were shot execution-style in New York, Arpaio criticized New York Mayor Bill De Blasio and Attorney General Eric Holder.
Arpaio has long been a critic of President Obama. In June 2014, Breitbart TV reported that Arpaio told Newsmax TV that he believes Obama intentionally caused the current crisis of thousands of unaccompanied minors flooding across the U.S.-Mexico border to force “Congress to do something” or “shove some more executive orders down our throat.”
AZfamily.com reported that the retired police officer that defeated Arpaio in the general election in November, Paul Penzone, says he has no plans to resume the illegal alien employment raids.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.