The smear of SB 1070, state draws to a close

EDITORIAL COLUMNIST

The legal fight against the most controversial provision of Senate Bill 1070, Arizona’s much maligned immigration law, is ending, with opponents essentially conceding defeat. The provision at issue did not authorize state and local law enforcement to stop or detain anyone for suspected immigration violations. If, in the course of a stop for some other violation, “reasonable suspicion” was developed that someone was in the country illegally, the officer was to make a “reasonable attempt” to determine that person’s immigration status, “when practicable.”

This provision became the centerpiece of a national — indeed, international — misleading smear against SB 1070 and Arizona.

The law was routinely described as requiring law enforcement in Arizona to stop people to determine their legal status, despite the plain language of the statute otherwise.

And this section was routinely demonized as the “papers please” provision, even though the law required the production of nothing not already required to be produced in the course of a traffic stop. The immigration verification, if reasonable suspicion were developed, consists of a call to the 24-hour hotline maintained by the federal government to assist state and local law enforcement in making these very determinations.

Although this section was the centerpiece of the fury that descended on Arizona, it was always the provision most likely to withstand legal challenge. Most of the rest of SB 1070 tried to make state crimes out of federal immigration offenses.

The U.S. Supreme Court held that federal law pre-empted state attempts to make immigration violations a state crime. The stop provision, however, was simply a directive to state and local law enforcement about their own activities and resources. Without state immigration crimes to enforce, all that would result is information for the federal government, for the federal government to do with what it wanted. The court declined to enjoin it.

These were decisions about a preliminary injunction. Litigation continued on the underlying case, including challenging the constitutionality of the stop provision.

An agreement has been reached to settle the lawsuit. Arizona Attorney General Mark Brnovich will issue guidance on implementing the stop provision and the plaintiffs will drop the claim that it is per se unconstitutional. Claims that the provision was unconstitutionally applied in individual cases could still be made.