USA v. State of Arizona, et al

Filing 138

Filed (ECF) Amicus Curiae Friendly House Motion for miscellaneous relief [Motion for Leave for Amici Curiae Friendly House Plaintiffs to Participate in Oral Argument]. Date of service: 10/12/2010. [7504026] (LJ)

EXHIBIT A

Dockets.Justia.co

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At issue are Defendants Pinal County Sheriff Paul Babeu and Pinal County Attorney James P. Walsh's Motion to Dismiss Plaintiffs' Complaint ("Pinal Cnty. Defs.' MTD") (Doc. 204), Defendant Sheriff Joseph Arpaio's Motion to Dismiss ("Arpaio MTD") (Doc. 205), and Intervenor Defendant Governor Janice K. Brewer's Motion to Dismiss ("Brewer MTD") (Doc. 238). The Court also addresses Plaintiffs' Motion for Preliminary Injunction ("Pls.' Mot.") (Doc. 235) and Request for Order on Pending Motion ("Pls.' Req.") (Doc. 430). I. BACKGROUND The Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act," 2010 Arizona Session Laws, Chapter 113, which Governor Brewer signed into law on April 23, 2010. Seven days later, the Governor signed into law a set of amendments to Senate Bill vs. Michael B. Whiting, et al., Defendants. Friendly House, et al., Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-1061-PHX-SRB ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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1070 in the form of House Bill 2162, 2010 Arizona Session Laws, Chapter 211.1 S.B. 1070 had an effective date of July 29, 2010. On July 28, 2010, the Court entered a preliminary injunction in the related case United States v. Arizona, CV 10-1413-PHX-SRB. (See United States v. Arizona, CV 10-1413-PHX-SRB, Doc. 87, Order Granting Prelim. Inj. ("USA Order").) In the USA Order, the Court preliminarily enjoined certain provisions of S.B. 1070. (Id. at 4.) Plaintiffs challenge S.B. 1070 in its entirety.2 (Compl. ¶ 183, Prayer for Relief ¶ b.) Plaintiffs also raise specific challenges to Sections 2, 3, 5, and 6 of S.B. 1070. (Compl. ¶¶ 180-218.) Section 2 of S.B. 1070 adds Arizona Revised Statute ("A.R.S.") § 11-1051, which requires law enforcement officials to check a person's immigration status under certain circumstances. Plaintiff principally contests the constitutionality of Subsection 2(B) of S.B. 1070, which requires officers to make a reasonable attempt, when practicable, to determine an individual's immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States. A.R.S. § 11-1051(B). Subsection 2(B) also provides that all persons who are arrested must have their immigration status verified prior to release. Id. Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that "a person is guilty In this Order, unless otherwise specified, the Court refers to Senate Bill 1070 and House Bill 2162 collectively as "S.B. 1070," describing the April 23, 2010, enactment as modified by the April 30, 2010, amendments. As noted in the USA Order, the Court cannot "declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional." State v. Ramsey, 831 P.2d 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)). In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. See id. at 715-16 (citing City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Section 12(A) of S.B. 1070 demonstrates that the Arizona Legislature intended the provisions of the enactment to be severable in order to preserve the constitutional provisions of the Act. S.B. 1070, § 12(A). The Court will not ignore S.B. 1070's severability clause or the obligation to preserve the constitutional provisions of a state legislative enactment. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by Plaintiffs. -22 1

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of willful failure to complete or carry an alien registration document if the person is in violation of [8 U.S.C. §§] 1304(e) or 1306(a)," federal statutes that require aliens to carry documentation of registration and penalize the willful failure to register. Id. § 13-1509(A). Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§ 13-2928 and 13-2929. A.R.S. § 13-2928(A) makes it unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Similarly, A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. A.R.S. § 13-2928(C) provides that it is unlawful "for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." A.R.S. § 13-2929 makes it unlawful for a person, knowing or in reckless disregard of the fact that an alien is unlawfully present in the United States, who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move the alien in Arizona in furtherance of the alien's unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield the alien from detection in Arizona; or (3) encourage or induce the alien to come to or live in Arizona. Id. § 13-2929(A)(1)-(3). Finally, Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States." Id. § 13-3883(A)(5). Plaintiffs filed the instant suit as a class action on May 17, 2010, asserting six causes of action under 42 U.S.C. § 1983 for violations of the following provisions of the United States Constitution: (Count 1) the Supremacy Clause; (Count 2) the Equal Protection Clause; (Count 3) the First Amendment; (Count 4) the Fourth Amendment; (Count 6) the Due Process Clause; and (Count 7) the Right to Travel under the Privileges and Immunities Clause. (Compl. ¶¶ 198, 204-214.) Plaintiffs also claim that S.B. 1070 violates Article II, § -3-

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8 of the Arizona Constitution (Count 5) and 42 U.S.C. § 1981 (Count 8). (Id. ¶¶ 199-203, 215-18.) Defendants Babeu and Walsh, Defendant Arpaio, and Intervenor Defendant Brewer now move to dismiss Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiffs lack standing and have failed to state a claim upon which relief may be granted.3 II. LEGAL STANDARDS AND ANALYSIS A. Motions to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) 1. Standing

The Pinal County Defendants, Defendant Arpaio and Intervenor Defendant Brewer move to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs do not have standing to bring this action. (Pinal Cnty. Defs.' MTD at 4-6; Arpaio MTD at 2-5; Brewer MTD at 4-12.) "Article III of the Constitution limits the judicial power of the United States to the resolution of [c]ases and [c]ontroversies, and Article III standing . . . enforces the Constitution's case-or-controversy requirement." Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597-98 (2007) (internal quotations and citations omitted). An analysis of standing requires an examination of "whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Allen v. Wright, 468 U.S. 737, 752 (1984). "`[A] plaintiff must demonstrate standing for each claim he seeks to press' and `for each form of relief' that is sought." Davis v. F.E.C., 128 S. Ct. 2759, 2769 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009). Where claims are raised by one plaintiff who has standing, the court need not determine whether other plaintiffs asserting the

Defendants Babeu, Walsh and Arpaio also argue that Plaintiffs' claims are not ripe for adjudication. (Pinal Cnty. Defs.' MTD at 6-7; Arpaio MTD at 5-7.) In addition, Defendant Arpaio asserts that designation of the suit as a class action is inappropriate. (Arpaio MTD at 9-10.) Defendants Babeu and Walsh also assert that Plaintiffs have failed to plead a short and plain statement of the claim as required by Federal Rule of Civil Procedure 8 and that Plaintiffs lack standing to bring claims against Babeu and Walsh specifically. (Pinal Cnty. Defs.' MTD at 3-6.) -4-

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same claims also have standing. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1183 (9th Cir. 2010); see also Bates v. UPS, Inc., 511 F.3d 974, 985 (9th Cir. 2007) ("In a class action, standing is satisfied if at least one named plaintiff meets the requirements.").4 In evaluating standing, courts must accept all material allegations in the complaint as true and construe the complaint in favor of the plaintiff. Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)). The plaintiff has the burden of establishing standing and must "`allege[] such a personal stake in the outcome of the controversy' as to warrant [the] invocation of federal-court jurisdiction and . . . justify exercise of the court's remedial powers." Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In order to have standing pursuant to Article III, a plaintiff must show (1) an "injury in fact" that is concrete and particularized and actual or imminent (not conjectural or hypothetical); (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009). Even when the constitutional The Court notes that there is some authority suggesting that this limitation on standing analysis applies only to appellate review. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 918 n.6 (9th Cir. 2004) (noting that "on remand, when the district court enters the appropriate injunctive relief against enforcement of the statute, it may need to decide whether Planned Parenthood is a proper plaintiff . . . [because] [o]nly a proper party to an action can enforce an injunction that results from a final judgment"); see also Town of Southold v. Town of E. Hampton, 406 F. Supp. 2d 227, 235 n.5 (E.D.N.Y. 2005). However, appellate courts generally have the same obligation to address standing as the trial courts, and several district courts have applied this limited standing analysis at the trial court level. See Sierra Club v. El Paso Props., Inc., No. 01-cv-02163-BNB-MEH, 2007 WL 45985, at *3 (D. Colo. Jan. 5, 2007) (collecting cases). At this stage in this putative class action, the standing inquiry is required to establish this Court's jurisdiction. The Court has jurisdiction to consider the merits of Plaintiffs' claims if at least one Plaintiff has standing to bring each claim. -54

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minima of standing are present, prudential concerns may impose additional limitations. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). Prudential standing limitations embody "`judicially self-imposed limits on the exercise of federal jurisdiction'" and include "`the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.'" Id. at 12 (quoting Allen, 468 U.S. at 750-51); see also Alaska Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007). An organization has standing "to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth, 422 U.S. at 511. "An organization may establish a sufficient injury in fact if . . . a challenged statute or policy frustrates the organization's goals and requires the organization `to expend resources in representing clients they otherwise would spend in other ways.'" Redondo Beach, 607 F.3d at 1183 (quoting El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1992)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Where a statute "perceptibly impair[s]" an organization's ability to provide the services the organization was formed to provide, "there can be no question that the organization has suffered [an] injury in fact. Such concrete and demonstrable injury to the organization's activities­with the consequent drain on the organization's resources­constitutes far more than simply a setback to the organization's abstract social interests." Havens, 455 U.S. at 379. An organization also has "associational standing" to bring suit on behalf of its members "when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). -6-

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Plaintiffs assert various injuries arising from the future operation and enforcement of S.B. 1070. (Compl. ¶¶ 7-30.) "A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (citation omitted). However, "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough." Id. (internal quotation and citation omitted). Similarly, "`it is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [a criminal] statute that he claims deters the exercise of his constitutional rights.'" Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). In order to have standing to challenge a criminal statute prior to the statute's enforcement, a plaintiff must allege "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute," and that a "credible threat" of prosecution exists. Id.; see also San Diego Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996). a. Injury in Fact

Plaintiffs must have standing to bring each claim asserted. See Davis, 128 S. Ct. at 2769 (citing DaimlerChrysler, 547 U.S. at 352). In order to have standing to bring a particular claim, Plaintiffs must allege an injury in fact arising from the challenged conduct. See Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (noting that "standing is not dispensed in gross" and that "`a plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject'" (quoting Blum v. Yaretsky, 457 U.S. 991, 999 (1982)). The Court evaluates the alleged injuries as they relate to the asserted claims. i. Civil Rights Violations (Counts 2, 4-6, 8)

Plaintiffs assert various claims for violations of their civil rights arising from the enforcement and operation of S.B. 1070 as written. Several organizations allege injuries on their own behalf, asserting that S.B. 1070 will impair their ability to pursue their organizational missions. (Compl. ¶¶ 7-20 (alleging injuries to the organizational missions of -7-

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Plaintiffs Friendly House, Service Employees International Union ("SEIU"), Service Employees International Union Local 5 ("SEIU Arizona"), United Food and Commercial Workers International Union ("UFCW"), Arizona South Asians for Safe Families ("ASAFSF"), Southside Presbyterian Church ("Southside"), Arizona Hispanic Chamber of Commerce ("AZHCC"), Asian Chamber of Commerce ("ACC"), Border Action Network ("BAN"), Tonatierra Community Development Institute ("Tonatierra"), Muslim American Society ("MAS"), Japanese American Citizens League ("JACL"), Valle del Sol, and Coalicion de Derechos Humanos ("Derechos Humanos")).) Governor Brewer argues that the organizational Plaintiffs have not "alleged facts sufficient to establish that [S.B. 1070] adversely impacts their mission, nor have they diverted resources in a manner that establishes a `concrete and demonstrable injury.'" (Brewer MTD at 10 (quoting Havens, 455 U.S. at 379).) Plaintiffs allege that several of the organizational Plaintiffs' missions involve promoting and protecting immigrant and minority rights, preventing discrimination, and educating and providing assistance to immigrant or minority populations. (See, e.g., Compl. ¶ 7 (asserting that Plaintiff Friendly House is a non-profit organization that provides immigration services, including assistance with asylum applications); id. ¶ 20 (stating that Plaintiff Derechos Humanos's mission is to promote human rights in the U.S.-Mexico border region); id. ¶¶ 12, 16 (asserting that Plaintiffs Southside and Tonatierra operate day laborer centers).) Plaintiffs assert that S.B. 1070 will frustrate the missions of the organizational Plaintiffs in several ways. First, Plaintiffs allege that several Plaintiff organizations will have to divert resources, or already have diverted resources, in order to educate and assist community members affected by S.B. 1070 and address the fear and confusion created by S.B. 1070. (See, e.g., id. ¶¶ 12, 14, 17-19; id. ¶ 20 (alleging that Plaintiff "Derechos Humanos has already been forced to suspend most of its work relating to community education . . . to respond to inquiries from the community about S.B. 1070").) Plaintiffs also allege that S.B. 1070 will create fear and confusion, harming several of the organizational Plaintiffs' missions by deterring clients and -8-

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members from participating in the organizations' programs out of fear of being stopped under S.B. 1070. (Id. ¶¶ 7-11, 13, 17-20.) In addition, the organizational Plaintiffs assert that the potential for criminal prosecutions will deter participation by members and frustrate their organizational purpose. (Id. ¶ 11 (alleging that Plaintiff ASAFSF's volunteers face an imminent risk of prosecution and that this risk harms ASAFSF's mission); id. ¶ 12 (alleging that Southside employees and volunteers would be at risk of prosecution while performing their work in furtherance of Southside's mission); id. ¶ 15 (alleging that, as a result of the risk of criminal prosecutions, Plaintiff BAN will have to divert resources to educate members about their rights and responsibilities under the law and address fears and concerns).) Plaintiffs also allege that S.B. 1070 will frustrate the organizational purpose of day laborer centers by criminalizing the expressive activity of members who are not authorized to work and chilling the expressive activity of members who are authorized to work. (Id. ¶ 16.) Finally, Plaintiffs allege that S.B. 1070 will deter business, cause economic harm within the state, and make it more difficult for some organizations to retain members as a result of members leaving the state. (Id. ¶¶ 13-15.) The Complaint contains sufficient allegations that S.B. 1070 "perceptibly impair[s]" the ability of the organizational Plaintiffs to provide the services that the organizations were formed to provide, and, as a result, "there can be no question that the organization[s] ha[ve] suffered [an] injury in fact." See Havens, 455 U.S. at 379. While Governor Brewer correctly points out that, for the most part, the organizational Plaintiffs' allegations involve threats of future harm, the threat of future harm is sufficiently imminent. See Babbitt, 442 U.S. at 298 ("A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement . . . . [and] does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough." (internal quotation and citation omitted)). The harms alleged by the organizational Plaintiffs do not result from any hypothetical unlawful enforcement or application of S.B. 1070. The alleged harm to the organizational Plaintiffs will occur if S.B. 1070 goes into effect, regardless of how it is enforced or applied. -9-

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The organizations allege that they will have to divert resources to educate and assist members, staff, and clients faced with the purportedly unconstitutional S.B. 1070. (Compl. ¶¶ 12, 14, 17-20.) Similarly, Plaintiffs allege that S.B. 1070 will deter clients and members from participating in the organizational Plaintiffs' programs. (See id. ¶¶ 7-11, 13, 17-20.) In order to continue providing services to their clientele, these organizations would presumably have to divert resources to reach the same individuals. (See id. ¶¶ 12, 14, 17-19.) In addition, Plaintiffs allege that Plaintiff Derechos Humanos "has already been forced to suspend most of its work relating to community education on border deaths and leadership development to respond to inquiries from the community about S.B. 1070." (Id. ¶ 20.) The organizational Plaintiffs have sufficiently alleged that the civil rights violations they claim will result from S.B. 1070 will require, or have already required, them to divert resources and that the violations will injure their organizational missions. Plaintiffs have alleged a sufficient injury in fact for purposes of standing to raise their civil rights claims (Counts 2, 4-6, 8). ii. First Amendment (Count 3)

Plaintiffs' allegations of injury to their First Amendment rights include two distinct injuries. First, Plaintiff Tonatierra alleges that it operates a day laborer center and that S.B. 1070's provisions prohibiting the solicitation of employment frustrate its mission "to empower workers and protect them from exploitation" by preventing day laborers from expressing their ability to work. (Id. ¶ 16.) Plaintiffs' allegations are sufficient to support an injury in fact. Where an organization's mission is to assist and protect clients in performing a specific activity, the organization's mission is "perceptibly impaired" by a statute criminalizing or chilling the clients' activity. See Havens, 455 U.S. at 379; see also Redondo Beach, 607 F.3d at 1183 (finding an organization whose mission was to strengthen and expand the work of day laborers had standing to challenge an ordinance preventing the solicitation of work). Here, Tonatierra alleges that its mission is to protect and assist day laborers and that S.B. 1070's regulation of employment solicitation frustrates this mission. Plaintiff Tonatierra has alleged a sufficient injury in fact resulting from an alleged First Amendment violation. See Redondo Beach, 607 F.3d at 1183. - 10 -

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Second, the Complaint also alleges that individual Plaintiffs and members of the organizational Plaintiffs are afraid to speak a foreign language or accented English around law enforcement officers and that this fear results in a chilling of their First Amendment rights. (See, e.g., id. ¶¶ 8-9, 13, 22, 23.) These allegations are not sufficiently imminent for purposes of standing. In the First Amendment context, self-censorship is "a harm that can be realized even without an actual prosecution." Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393 (1988). However, "[t]he potential plaintiff must have `an actual and well-founded fear that the law will be enforced against [him or her]' [and] such a fear of prosecution will only inure if the plaintiff's intended speech arguably falls within the statute's reach." Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003) (quoting Am. Booksellers, 484 U.S. at 393). In addition, "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1, 13-14 (1972). Here, S.B. 1070 does not purport to limit the rights of individuals to speak. Plaintiffs' allegations are of only a "subjective chill" and do not give rise to an injury in fact resulting from a First Amendment violation for standing purposes. iii. Right to Travel (Count 7)

Individual Plaintiffs Vicki Gaubeca and Jesus Cuauhtemoc Villa also allege that, as residents of New Mexico possessing only New Mexico driver's licenses, they face an imminent threat of detention pursuant to S.B. 1070 because their driver's licenses do not dispel reasonable suspicion of unlawful presence. (Compl. ¶¶ 22, 27.) Subsection 2(B) of S.B. 1070 provides for a presumption of lawful presence where an individual can provide identification from any state or local government that "requires proof of legal presence in the United States before issuance." A.R.S. § 11-1051(B). Plaintiffs allege that New Mexico does not require such proof prior to issuing identification. However, Plaintiffs Gaubeca and Cuauhtemoc Villa do not allege that they will be deterred from traveling to or in Arizona. (See Compl. ¶¶ 22, 27.) Rather, both Plaintiffs allege only that they believe or fear that they could be detained after being pulled over "because [their] New Mexico driver's license will - 11 -

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not be accepted to dispel suspicion that [they are] `unlawfully present' in the United States." (Id. ¶ 22; see also id. ¶ 27.) An injury in fact cannot be based on a "chain of speculative contingencies." Lee v. Oregon, 107 F.3d 1382, 1388 (1997). In order for the alleged injury to arise, Plaintiffs would have to be lawfully stopped by a law enforcement officer, the officer would then have to develop reasonable suspicion that Plaintiffs were unlawfully present in the United States, and then the stop would have to result in an unlawful detention. This hypothetical chain of events is too speculative to support an injury in fact for purposes of standing on a claim for violations of the right to travel. Defendants' Rule 12(b)(1) Motions to Dismiss are granted as to Plaintiffs' right to travel claim (Count 7). b. Causation

The alleged injury in fact must also be fairly traceable to the challenged action. Lujan, 504 U.S. at 560. Plaintiffs' alleged injuries arise from the impact that Sections 2, 3, 5 and 6, have on the Plaintiffs. (See Compl. ¶¶ 7-30.) Defendants do not argue that the alleged injuries are not fairly traceable to the provisions of S.B. 1070. Plaintiffs' Complaint contains adequate allegations making the alleged injuries fairly traceable to the enactment and enforcement of S.B. 1070. c. Redressability

Finally, Plaintiffs' alleged injuries would likely be redressed by a favorable decision. See Lujan, 504 U.S. at 561. Relief preventing the enforcement of S.B. 1070 or declaring S.B. 1070 unconstitutional would alleviate the organizational Plaintiffs' alleged injuries. d. Prudential Standing Considerations

Prudential standing limitations prevent courts from looking at generalized grievances, claims brought on behalf of third-parties, and claims that do not fall within the zone of interests protected by the law invoked. Newdow, 542 U.S. at 12. Governor Brewer argues that Plaintiffs "allege general concern about [S.B. 1070] rather than a specific, concrete injury" and that the Court should "refrain `from adjudicating abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches." (Brewer MTD at 11 (quoting Valley - 12 -

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Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (internal quotations and citations omitted)).) The organizational Plaintiffs allege injuries specific to their organizational missions. (See Compl. ¶¶ 7-20.) The alleged injuries are not "pervasively shared" by the public. See Valley Forge, 454 U.S. at 475. In addition, the alleged injuries giving rise to standing are injuries suffered by the organizational Plaintiffs. The claims are not impermissibly asserted on behalf of third-parties.5 2. Ripeness

Defendants Babeu, Walsh, and Arpaio also argue that Plaintiffs' Complaint is not ripe for adjudication. (Pinal Cnty. Defs.' MTD at 6-7; Arpaio MTD at 5-7.) Ripeness has both constitutional and prudential components. Portman v. Cnty. of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993). "The constitutional component of ripeness overlaps with the `injury in fact' analysis for Article III standing . . . [and] [w]hether framed as an issue of standing or ripeness, the inquiry is largely the same: whether the issues presented are `definite and concrete, not hypothetical or abstract.'" Wolfson v. Brammer, No. 09-15298, 2010 WL 3191159, at *7 (9th Cir. Aug. 13, 2010) (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000)); see also Getman, 328 F.3d at 1093-94 (noting that in many cases, the analysis of ripeness and standing are the same). Analysis of the prudential component weighs "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99,

Defendants Babeu and Walsh also argue "the [C]omplaint alleges no facts specific to either Pinal County Sheriff Babeu or Pinal County Attorney Walsh to establish that any of the . . . [P]laintiffs have met the standing requirements." (Pinal Cnty. Defs.' MTD at 5.) Officials with a direct role in the enforcement of challenged provisions are proper defendants in a suit challenging the validity of a legislative enactment. Wasden, 376 F.3d at 919-20. As the Pinal County Sheriff and County Attorney, Defendants Babeu and Walsh will be tasked with enforcing S.B. 1070. Plaintiffs here seek an injunction prohibiting this enforcement, and it is appropriate to seek such an injunction against officials with a direct role in enforcement. See id. The organizational Plaintiffs' allegations of injury are sufficient to sustain claims against officials tasked with enforcing S.B. 1070. - 13 -

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105 (1977). Here, the Court has already determined that Plaintiffs have alleged definite and concrete injuries. Plaintiffs have also satisfied the prudential component of ripeness. "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final." Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). Plaintiffs assert that S.B. 1070 is unconstitutional on its face; the issues raised are primarily legal and do not require further factual development. Moreover, "[t]o meet the hardship requirement, a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss." Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1990) (internal quotation and citation omitted). The organizational Plaintiffs allege that they will be subject to an organizational injury as a result of the enforcement of an unconstitutional enactment if S.B. 1070 goes into effect. (See Compl. ¶¶ 7-11, 13, 17-20.) These are sufficient allegations of hardship for the purposes of ripeness. B. Motions to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) 1. Standard for Dismissal

Plaintiffs assert causes of action for violations of: (1) the Supremacy Clause;6 (2) the Equal Protection Clause; (3) the First Amendment; (4) the Fourth Amendment; (5) Article II, § 8 of the Arizona Constitution; (6) the Due Process Clause; (7) the Right to Travel; and (8) 42 U.S.C. § 1981. (Compl. ¶¶ 180-218.) Defendants Brewer, Arpaio, Babeu and Walsh ("Defendants") move to dismiss all eight causes of action, asserting that Plaintiffs have failed to state a claim for which relief can be granted. The Court addresses each of Plaintiffs' claims in turn. The Federal Rules of Civil Procedure require "only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice

The Court does not address Plaintiffs' claim alleging a violation of the supremacy clause as the Court already thoroughly addressed this issue in the USA Order. - 14 -

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of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Fed. R. Civ. P. 8(a)(2). Thus, dismissal for insufficiency of a complaint is proper if the complaint fails to state a claim on its face. Lucas v. Bechtel Corp., 633 F.2d 757, 759 (9th Cir. 1980). "While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). A Rule 12(b)(6) dismissal for failure to state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In determining whether an asserted claim can be sustained, all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). This presumption applies only to facts and "is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that `recovery is very remote and unlikely.'" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However, "for a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1952). In other words, the complaint must contain enough factual content "to raise a reasonable expectation that discovery will reveal evidence" of the claim. Twombly, 550 U.S. at 556. 2. Equal Protection Clause and 42 U.S.C. § 1981 (Counts 2 and 8)

Plaintiffs allege that S.B. 1070 violates their rights under the Equal Protection Clause (Count 2) and 42 U.S.C. § 1981 (Count 8). (Compl. ¶¶ 185-90, 215-18.) Plaintiffs assert that - 15 -

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S.B. 1070 "was enacted with the purpose and intent to discriminate against racial and national origin minorities, including Latinos, on the basis of race and national origin." (Id. ¶ 187.) Plaintiffs also allege that S.B. 1070 "impermissibly and invidiously targets Plaintiffs who are racial and national origin minorities . . . and subjects them to stops, detentions, questioning, and arrests because of their race and/or national origin," and that Section 3 of S.B. 1070 "impermissibly discriminates against non-citizen Plaintiffs on the basis of alienage and deprives them of the equal protection of the laws." (Id. ¶ 190.) Plaintiffs similarly allege that S.B. 1070 "impermissibly discriminates against persons within the State of Arizona on the basis of alienage and national origin and race" in violation of 42 U.S.C. § 1981. (Id. ¶ 218.) The Equal Protection Clause of the Fourteenth Amendment "commands that no State shall deny to any person . . . the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (internal quotation and citation omitted). Similarly, 42 U.S.C. § 1981 prohibits discrimination under color of state law based on race, "ancestry[,] or ethnic characteristics." Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987); see also Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (noting that "when Congress enacted § 1981, it intended `race' to be defined broadly, to cover discrimination against ethnic groups" (citing Al-Khazraji, 481 U.S. at 613)). Where a plaintiff alleges that facially neutral legislation is unconstitutional in violation of the Equal Protection Clause and also that he or she is entitled to relief under 42 U.S.C. § 1981, the claims are "indistinguishable . . . and the analysis is the same . . . . [because] [u]nder either theory, the [plaintiff] must prove [he or she is] deprived of equal protection of the laws, which requires a showing of discriminatory intent." Hispanic Taco Vendors of Wash. v. City of Pasco, 994 F.2d 676, 679 n.3 (9th Cir. 1993). The Court addresses the sufficiency of Plaintiffs' Equal Protection Clause and § 1981 claims together. Generally, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." - 16 -

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Cleburne, 473 U.S. at 440; see also United States v. Flores-Villar, 536 F.3d 990, 997 (9th Cir. 2008). However, under the Equal Protection Clause, certain classifications, including classifications based on race, alienage, and national origin, are subject to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Cleburne, 473 U.S. at 440. Classifications that appear neutral but are a pretext for racial discrimination are also subject to strict scrutiny. Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979) (noting that strict scrutiny applies to "a classification that is ostensibly neutral but is an obvious pretext for racial discrimination" (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915)); see also Valeria v. Davis, 307 F.3d 1036, 1039 (9th Cir. 2002) (noting that "governmental actions . . . that are facially neutral but motivated by discriminatory racial purpose . . . are subject to strict scrutiny"). "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977); see also Hispanic Taco Vendors, 994 F.2d at 679-80. Here, Plaintiffs assert that "racial discrimination was a motivating factor for [S.B.] 1070's enactment." (Pls.' Resp. to Mots. to Dismiss ("Pls.' Resp.") at 37; Compl. ¶ 187.) In addition, Plaintiffs assert that Section 3 of S.B. 1070 explicitly discriminates on the basis of alienage. (Compl. ¶ 190; Pls.' Resp. at 38-39.) Plaintiffs allege that it is "widely understood that [S.B. 1070] is motivated by . . . discrimination against Latinos and other racial minorities in Arizona on the basis of their race and national origin." (Compl. ¶ 73.) Plaintiffs also allege that Arizona State Senators made statements indicating that S.B. 1070 was likely to result in increased discrimination and racial profiling.7 (See Compl. ¶¶ 68-69.) Similarly, Plaintiffs allege that the sponsor of S.B. 1070 has a history of making racially insensitive remarks and sponsoring legislation in Arizona related to race and national origin. (Id. ¶¶ 70-71.) Finally, "[W]hen the adverse consequences of a law upon an identifiable group are . . . inevitable . . . a strong inference that the adverse effects were desired can reasonably be drawn." Feeney, 442 U.S. at 279 n.25. - 17 7

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Plaintiffs also allege that, on its face, S.B. 1070 targets and discriminates against minorities. (Id. ¶¶ 188, 190, 218.) The Complaint contains adequate allegations that race, alienage, or national origin discrimination was a motivating factor in the enactment of S.B. 1070.8 Race, alienage and national origin are so rarely relevant to the achievement of a legitimate state interest that laws grounded in such considerations are subject to strict scrutiny. Cleburne, 473 U.S. at 440. For the purposes of a challenge under Rule 12(b)(6), the Complaint contains "non-conclusory `factual content,'" from which the Court can draw "reasonable inferences . . . [that are] plausibly suggestive of a claim entitling the plaintiff to relief." Moss, 572 F.3d at 969 (quoting Iqbal, 129 S. Ct. at 1952). Governor Brewer's Motion to Dismiss Plaintiffs' Equal Protection and § 1981 claims is denied. 3. The First Amendment (Count 3)

Plaintiffs challenge three provisions of S.B. 1070 on First Amendment grounds (Count 3), asserting that S.B. 1070 infringes on Plaintiffs' freedom of speech by restricting employment solicitation speech and chilling the first amendment rights of non-English speakers and individuals who speak English with an accent. (Compl. ¶¶ 84-85, 109, 159, 192-93.) First, Plaintiffs assert that A.R.S. § 13-2928(A) and (B), which prohibit the act of hiring and being hired by the occupant of a motor vehicle, infringes on day laborers' First Amendment right to free speech. (Id. ¶¶ 16, 101-06, 193.) Plaintiffs also challenge A.R.S. § 13-2928(C), which makes it "unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." (Id. ¶¶ 10109, 193 (citing A.R.S. § 13-2928(C)).) Finally, Plaintiffs assert that Section 2 of S.B. 1070 infringes on the First Amendment rights of non-English speakers. (Id. ¶¶ 8-9, 13, 22-23, 8387, 159.) The First Amendment guarantees that "Congress shall make no law . . . abridging the While S.B. 1070 also contains provisions prohibiting the consideration of race, color, and national origin, A.R.S. § 11-1051(B), these provisions, standing alone, are not sufficient to insulate against Plaintiffs' Equal Protection Clause and § 1981 claims. - 18 8

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freedom of speech." U.S. Const. amend. I.9 However, "the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.'" Redondo Beach, 607 F.3d at 1184 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). a. Section 5: A.R.S. § 13-2928(A) and (B)

Section 5 of S.B. 1070 makes it unlawful for "an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location" and for "a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic." A.R.S. §13-2928(A), (B). Plaintiffs assert that "Section 5 of S.B. 1070 creates a content-based regulation of protected speech" by prohibiting and regulating speech soliciting work. (Compl. ¶¶ 102-03.) Solicitation is a "form of expression that consists of both expressive content and associated conduct or acts." Redondo Beach, 607 F.3d at 1184. "[R]estrictions on acts of solicitation that were passed to support legitimate government concerns unrelated to suppressing any particular message are content neutral." Id. at 1185 (citing ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 794 & n.10 (9th Cir. 2006); Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009)). However, "[a] restriction aimed at conduct does not satisfy this content neutrality test . . . when the restriction `by its very terms, singles out particular content for differential treatment.'" Id. at 1186 (quoting Berger, 569 F.3d at 1051). In Redondo Beach, the Ninth Circuit Court of Appeals found that an ordinance making it "unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle" was

"The Fourteenth Amendment makes this limitation applicable to the states." City of Ladue v. Gilleo, 512 U.S. 43, 45 n.1 (1994). - 19 -

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a valid, content neutral regulation of speech. 607 F.3d at 1184-93. The Redondo Beach court found that the ordinance at issue was "aimed at acts of on-the-spot solicitation" and regulated "broad categories of expression which [did not] require an officer to make . . . a substantive evaluation of a speaker's message." Id. at 1188. A.R.S. § 13-2928(A) and (B) are considerably narrower than the Redondo Beach ordinance. Unlike the Redondo Beach ordinance, S.B. 1070 regulates only solicitation related to employment rather than a broad category of solicitation. See A.R.S. § 13-2928(A), (B). Importantly, S.B. 1070's provisions are directed only at employment solicitation and not more broadly at the act of solicitation. See ACLU of Nev., 466 F.3d at 794 (noting that "[a]lthough courts have held that bans on the act of solicitation are content-neutral, we have not found any case holding that a regulation that separates out words of solicitation for differential treatment is content-neutral" (citation omitted)). A.R.S. § 13-2928(A) and (B) are content-based regulations of speech because the provisions "differentiate[] based on the content of speech," prohibiting only the solicitation of employment. See id. at 793-94 (finding that an ordinance prohibiting handbills requesting financial or other assistance but permitting handbills with other content was a "content-based distinction because it single[d] out certain speech for differential treatment based on the idea expressed" (internal quotation and citation omitted)); see also Berger, 569 F.3d at 1051 (finding that an ordinance that prohibited street performers from soliciting donations but did not prohibit the performers from communicating other messages was a content-based regulation of speech). As a content-based regulation, A.R.S. § 13-2928(A) and (B) is only valid if it "serves a compelling government interest in the least restrictive manner possible." Berger, 569 F.3d at 1053. Plaintiffs have sufficiently stated their claim of a First Amendment violation. Therefore, the Motions to Dismiss Plaintiffs' First Amendment challenge to A.R.S. § 13-2928(A) and (B) are denied. b. Section 5: A.R.S. § 13-2928(C)

Section 5 of S.B. 1070 also adds A.R.S. § 13-2928(C), which makes it unlawful for "a person who is unlawfully present in the United States and who is an unauthorized alien - 20 -

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to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." Plaintiffs cannot state a claim for violations of the First Amendment based on A.R.S. § 13-2928(C). The Supreme Court has held that individuals who were not authorized to work did not have a right to backpay. Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 151 (2002) (noting that "allowing . . . [an] award of backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy"). Likewise, individuals who are unlawfully present in the United States and unauthorized to work do not have a right to solicit work. Cf. id. Plaintiffs' First Amendment challenge to A.R.S. § 13-2928(C) is dismissed. c. Section 2 of S.B. 1070

Section 2 of S.B. 1070 requires law enforcement officers to make a reasonable attempt, when practicable, to determine the immigration status of a person where the officer has lawfully stopped, detained, or arrested the individual and the officer has reasonable suspicion that the person is an alien and is unlawfully present in the United States. A.R.S § 11-1051(B). As discussed above, Plaintiffs lack standing to assert that Section 2 will chill the speech of individuals who do not speak English or who speak English with an accent. See Laird, 408 U.S. at 13-14. 4. The Due Process Clause (Count 6)

Governor Brewer moves to dismiss Plaintiffs' due process claim, Count Six of the Complaint. (Brewer MTD at 24-28.) Plaintiffs allege that Section 2 of S.B. 1070 violates the Fourteenth Amendment's guarantee of procedural due process. (Compl. ¶ 206 (alleging that Section 2 "permits state and local law enforcement officials to seize, detain, and transfer individuals without appropriate procedures, thereby depriving Plaintiffs of their liberty without due process of law").). Plaintiffs further allege that Sections 2, 5, and 6 of S.B. 1070 are void for vagueness and point in particular to eight terms or phrases that they claim are impermissibly vague. (See id. ¶¶ 206-08.) a. Procedural Due Process

"The Fourteenth Amendment's Due Process Clause protects persons against - 21 -

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deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Subsection 2(B) of S.B. 1070 directs police officers to make a reasonable attempt to determine the immigration status of any person who is lawfully stopped, detained, or arrested when the officer has reasonable suspicion that the person might be in the U.S. unlawfully. A.R.S. § 11-1051(B). Subsection 2(B) also states, "Any person who is arrested shall have the person's immigration status determined before the person is released." Id. Section 6 of S.B. 1070 permits a police officer to make a warrantless arrest if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States." Id. § 13-3883(A)(5). Although Governor Brewer states, "even assuming Plaintiffs can establish a liberty interest," she does not make any arguments regarding the nonexistence of a liberty interest. (Brewer MTD at 24.) Arrest and detention are classic examples of liberty interests protected by the Due Process clause. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (observing that the plaintiff's interest was "the most elemental of liberty interests­the interest in being free from physical detention by one's own government" (citations omitted)). Once it is established that a liberty interest is at stake, the Court turns to the question of what process is due to people affected by S.B. 1070. The Supreme Court has held, "Because the requirements of due process are `flexible and cal[l] for such procedural protections as the particular situation demands,' we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures." Wilkinson, 545 U.S. at 224 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The factors to be considered were set out in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. - 22 -

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Regarding the first and third factors, Plaintiffs' liberty interests here are "weighty," as is Arizona's interest in promoting the safety and welfare of its citizens. See Landon v. Plasencia, 459 U.S. 21, 34 (1982). Plaintiffs focus primarily on the second factor, the risk of an erroneous deprivation, arguing that because a person's immigration status cannot be easily observed or inferred, S.B. 1070 "invites racial profiling and compels law enforcement officers to make subjective and arbitrary decisions as to whom to single-out for immigrationrelated investigation based solely on appearance, race, ethnicity, language, accent, or national origin." (Pls.' Resp. at 32.) Plaintiffs have stated a claim that Subsection 2(B) of S.B. 1070 violates their right to procedural due process on its face. S.B. 1070 contains no meaningful procedural safeguards against erroneous deprivations of liberty, and immigration status is not something that is easily ascertainable. A person who is lawfully present in the U.S. may look and act the same way as a person who does not have permission to be in the country, and Plaintiffs' allegations of "subjective and arbitrary" detention decisions by law enforcement agents are plausible. For the purposes of a challenge under Rule 12(b)(6), the Complaint contains "non-conclusory `factual content,'" from which the Court can draw "reasonable inferences . . . [that are] plausibly suggestive of a claim entitling the plaintiff to relief." Moss, 572 F.3d at 969 (quoting Iqbal, 129 S. Ct. at 1952). Governor Brewer's Motion is denied as to Plaintiffs' procedural due process claim. b. Vagueness

Governor Brewer also challenges Plaintiffs' allegation that Sections 2, 5, and 6 of S.B. 1070 contain unconstitutionally vague terms. (Brewer MTD at 25-28.) "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). There are two ways in which a law may be invalidated on account of vagueness: "First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement." City - 23 -

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of Chi. v. Morales, 527 U.S. 41, 56 (1999) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Plaintiffs assert that S.B. 1070 contains terms "that are `so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.'" (Pls.' Resp. at 33 (quoting City of Chi., 527 U.S. at 56).) The Court analyzes the challenged terms in turn. i. Section 2

Plaintiffs allege that four terms in Section 2 are impermissibly vague: "reasonable suspicion," "reasonable attempt," "unlawful presence," and "determine the immigration status." (Compl. ¶ 206.) "Reasonable suspicion" has long been understood to mean "`a particularized and objective basis' for suspecting the person stopped of criminal activity." Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). The concept of reasonable suspicion is "fluid" and takes its "substantive content from the particular context[]" in which it is applied. Id. (citing Illinois v. Gates, 462 U.S. 213, 232 (1983)). Plaintiffs have not alleged any facts suggesting that reasonable suspicion in S.B. 1070 is not properly interpreted as having this long-standing meaning. The Court finds that Plaintiffs have not stated a claim as to this term. The Court also finds that "reasonable attempt" is sufficiently clear as used in S.B. 1070. While the language is not precise, it is not arcane, and it permits an appropriate degree of flexibility in implementation and does not prevent "ordinary people [from] understand[ing] what conduct it prohibits." City of Chi., 527 U.S. at 56 (citing Kolender, 461 U.S. at 357). With regard to "unlawful presence," Plaintiffs argue that S.B. 1070 uses the term inconsistently with its definition under federal law. (Pls.' Resp. at 33-34). Under the Immigration and Nationality Act ("INA"), "an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled." 8 U.S.C. § 1182(a)(9)(B)(ii). The INA also sets out various exceptions to time that is included in calculating a period of unlawful presence for purposes of inadmissibility analysis. See id. § 1182(a)(9)(B)-(C). S.B. 1070 does not purport to determine the length of time a person is properly considered to have been unlawfully present, but - 24 -

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merely that for some period, they were or are present in the U.S. without permission. Although S.B. 1070 does not contain several of the exceptions contained in the INA, this, alone, does not render the use of the phrase "unlawful presence" vague. Plaintiffs have not stated a claim that "unlawful presence," as used in Section 2, is impermissibly vague. Plaintiffs also assert that "determine the immigration status" is vague. (Compl. ¶ 206.) S.B. 1070 provides that a person's "immigration status may be determined by: (1) A law enforcement officer who is authorized by the federal government to ascertain an alien's immigration status [or] (2) [t]he United States [I]mmigration and [C]ustoms [E]nforcement or [t]he United States [C]ustoms and [B]order [P]rotection pursuant to 8 [U.S.C. §] 1373(c)." A.R.S. § 11-1051(E). Section 1373(c) of Title 8 provides that federal authorities "shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." S.B. 1070 does not use the phrase "determine the immigration status" inconsistently with federal law because it states that the determination is to be made by a federal agency or federally-authorized law enforcement officer. A.R.S. § 11-1051(E). The Court concludes that "determine the immigration status" is not vague. Governor Brewer's Motion is granted as to Section 2. ii. Section 5

Plaintiffs allege that two terms in Section 5 are vague: "in furtherance of illegal presence" and "that the immigrant has entered or remained in the United States illegally." (Compl. ¶ 208.) With regard to "in furtherance of illegal presence," the Court finds that this phrase is not so vague as to violate the due process guarantee of the Fourteenth Amendment. The Court gives the words their ordinary meaning, Perrin v. United States, 444 U.S. 37, 42 (1979) (citation omitted), and observes that a parallel provision of federal immigration law also uses the phrase "in furtherance" of illegal entry or presence in discussing criminal penalties for similar actions. See 8 U.S.C. § 1324(a)(1)(A)(ii). The Court further concludes that Plaintiffs have not stated a claim that the phrase - 25 -

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"that the alien has come to, has entered or remains in the United States illegally" is unconstitutionally vague. Giving the words their ordinary meaning, this phrase is not so unclear as to not give a person of ordinary intelligence knowledge of what conduct is prohibited. Section 5 makes various actions unlawful if done by a person who knows or recklessly disregards the fact that a person "has come to, has entered or remains in the United States illegally." A.R.S. § 13-2929(A). This phrase is not vague. Like "in furtherance of illegal presence," a phrase very similar to the one in question appears in federal immigration law. See 8 U.S.C. § 1324(a)(1)(A)(ii)-(iii) (providing criminal penalties for any person who, "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law," transports, moves, conceals, harbors, or shields the alien). Governor Brewer's Motion is granted as to Section 5. iii. Section 6

Plaintiffs challenge two terms in Section 6: "public offense" and "removable." (Compl. ¶ 207.) In full, Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States." A.R.S. § 13-3883(A)(5). "Public offense" is defined in Arizona state law as follows: [C]onduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state. Id. § 13-105(26). While Plaintiffs claim that this phrase, on its own, is vague, their real argument has to do with the way it is used in conjunction with the next phrase: "that makes the person removable from the United States." Id. § 13-3883(A)(5); (see also Pls.' Resp. at 34-35.) Plaintiffs argue that "there is no list of state crimes `that make[] [a] person removable from the United States.'" (Pls.' Resp. at 34 (first alteration added).) Plaintiffs also argue that "whether a state offense makes a person `removable' requires a complex factual and legal - 26 -

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analysis." (Id.) Governor Brewer asserts that both terms have definitions in federal law and are intended to be appli