Puente Arizona et al v. Arpaio et al

Filing 133

ORDER - 1. Plaintiffs' motion for a preliminary injunction (Doc. 30 ) is granted. Until further order of the Court, Defendants are enjoined from enforcing A.R.S. § 2009(A)(3) and the portion of A.R.S. § 13-2008(A) that addresses acti ons committed "with the intent to obtain or continue employment." 2. Defendants' motions to dismiss and strike (Docs. 53 , 55 , 127 ) are denied. 3. Parties' motions to supplement (Docs. 84 , 98 , 103 , 123 ) are granted. (See document for further details). Signed by Judge David G Campbell on 1/5/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-14-01356-PHX-DGC

Joseph M. Arpaio, et al.,

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Defendants.

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This case involves the constitutionality of two statutes that criminalize the act of

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identity theft done with the intent to obtain or continue employment. Plaintiffs claim that

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the purpose of these statutes is to discriminate against unauthorized aliens and that this

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purpose makes the statutes unconstitutional under the Supremacy and Equal Protection

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Clauses of the United States Constitution. Plaintiffs have moved for a preliminary

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injunction that would enjoin Defendants from enforcing portions of these statutes.

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Doc. 30. Defendants have responded and filed motions to dismiss. Docs. 53, 55. The

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Court heard oral arguments on October 16, 2014. For reasons set forth below, the Court

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will grant the motion for a preliminary injunction and deny Defendants’ motions to

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dismiss.

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I.

Background.

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A.

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The federal government has broad and plenary powers over the subject of

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immigration and the status of aliens. Arizona v. United States, 132 S. Ct. 2492, 2498

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(2012). This authority rests, in part, on the federal government’s constitutional power to

Federal Immigration Law.

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establish a uniform rule of naturalization, U.S. Const. art. I, § 8, cl. 4, and its inherent

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power as a sovereign to control and conduct relations with foreign nations, Arizona, 132

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S. Ct. at 2498. In accordance with these powers, Congress passed the Immigration

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Reform and Control Act (“IRCA”) in 1986. Pub. L. No. 99-603, 100 Stat. 3359 (1986).

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IRCA “made combating the employment of illegal aliens in the United States central to

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‘[t]he policy of immigration law.’” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.

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137, 147 (2002) (quoting INS v. Nat’l Ctr. For Immigrants’ Rights, Inc., 502 U.S. 183,

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194 & n.8 (1991)).

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IRCA established a “comprehensive framework” for regulating the employment of

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unauthorized aliens.1 Arizona, 132 S. Ct. at 2504. It did so by establishing an extensive

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“employment verification system,” 8 U.S.C. § 1324a(b), to deny employment to

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unauthorized aliens, Hoffman, 535 U.S. at 147. IRCA requires employers to verify the

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“employment authorization and identity” of new employees before they begin work. 8

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U.S.C. § 1324a(b). An individual may prove his or her employment authorization by

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providing a document evidencing United States citizenship or an alien registration card.

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Id. § 1324a(b)(1)(B)-(C). An individual may prove his or her identity by a variety of

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documents, including a state driver’s license.

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requirements are now formalized in the Form I-9 that millions of Americans fill out every

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year. See 8 C.F.R. § 274a.2. The government has complemented the I-9 process with the

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E-Verify program, “an internet-based system that allows an employer to verify an

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employee’s work-authorization status.” Chicanos Por La Causa, Inc. v. Napolitano, 558

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F.3d 856, 862 (9th Cir. 2009).

Id. § 1324a(b)(1)(D).

All of these

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IRCA makes it unlawful for an employer to knowingly hire a person who cannot

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satisfy the employment verification system. 8 U.S.C. § 1324a(a)(1). This requirement is

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The parties use various phrases to describe an unauthorized alien, including
“undocumented worker” and “illegal immigrant.” The Court uses the term “unauthorized
alien” as it is defined in IRCA: “As used in this section, the term ‘unauthorized alien’
means, with respect to the employment of an alien at a particular time, that the alien is
not at that time either (A) an alien lawfully admitted for permanent residence, or
(B) authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C.
§ 1324a.
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“enforced through criminal penalties and an escalating series of civil penalties tied to the

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number of times an employer has violated the provisions.” Arizona, 132 S. Ct. at 2504; 8

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U.S.C. § 1324a(e)-(f). IRCA expressly preempts state or local laws that impose civil or

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criminal sanctions – other than through licensing and similar laws – on those who employ

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unauthorized aliens. Id. § 1324a(h)(2).

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IRCA does not impose criminal penalties on unauthorized aliens who merely seek

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or engage in unauthorized work, Arizona, 132 S. Ct. at 2504, but it does criminalize the

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act of using an “identification document” that is not lawfully issued, or is false, for the

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purpose of satisfying the employment verification system, 18 U.S.C. § 1546(b). With the

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Immigration Act of 1990, Congress also imposed civil penalties on persons who use

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falsified documents to satisfy the employment verification system. Pub. L. No. 101–649,

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104 Stat. 4978 (1990) (adding 8 U.S.C. § 1324c). Congress has also made the use of

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false documents for employment a deportable offense. See 8 U.S.C. § 1227(a)(1)(B).

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“Congress has made clear, however, that any information employees submit to indicate

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their work status ‘may not be used’ for purposes other than prosecution under specified

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federal criminal statutes for fraud, perjury, and related conduct.” Arizona, 132 S. Ct. at

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2504 (citing 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G)).

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A “primary purpose in restricting immigration is to preserve jobs for American

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workers.” Nat’l Ctr. for Immigrants’ Rights, 502 U.S. at 194 (1991) (quoting Sure–Tan,

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Inc. v. NLRB, 467 U.S. 883, 893 (1984)). But in passing IRCA, “Congress made a

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deliberate choice not to impose criminal penalties on aliens who seek, or engage in,

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unauthorized employment.” Arizona, 132 S. Ct. at 2504. “IRCA’s framework reflects a

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considered judgment that making criminals out of aliens engaged in unauthorized work –

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aliens who already face the possibility of employer exploitation because of their

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removable status – would be inconsistent with federal policy and objectives.” Id.

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B.

Arizona’s Identity Theft Laws.

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Arizona passed its first identity theft statute in 1996, making it a crime to

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“knowingly take[] the name, birth date or social security number of another person,

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without the consent of that person, with the intent to obtain or use the other person’s

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identity for any unlawful purpose or to cause financial loss to the other person.” 1996

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Ariz. Legis. Serv. Ch. 205 (H.B. 2090) (West). Over the next decade, Arizona repeatedly

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amended this statute – now codified at A.R.S. § 13-2008 – by expanding the definition of

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identity theft. See, e.g., 2000 Ariz. Legis. Serv. Ch. 189 (H.B. 2428) (West); 2004 Ariz.

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Legis. Serv. Ch. 109 (H.B. 2116) (West).

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aggravated identity theft under A.R.S. § 13-2009. 2005 Ariz. Legis. Serv. Ch. 190 (S.B.

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1058) (West).

Arizona also created a new crime of

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Plaintiffs challenge two bills that amended these identity theft laws to make them

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applicable to employment of unauthorized aliens. In 2007, Arizona passed H.B. 2779,

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known as the “Legal Arizona Workers Act.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B.

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2779) (West). The bulk of the bill concerned a new statute, A.R.S. § 13-212, relating to

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the employment of unauthorized aliens. This new statute prohibited employers from

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hiring unauthorized aliens and threatened the suspension of licenses if an employer failed

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to comply. This statute ultimately was held to be constitutional by the United States

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Supreme Court in Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968 (2011).

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H.B. 2779 also amended Arizona’s aggravated identity theft statute, A.R.S. § 132009, by adding the following italicized language:
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A person commits aggravated taking the identity of another person
or entity if the person knowingly takes, purchases, manufactures,
records, possesses or uses any personal identifying information or
entity identifying information of either . . .
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Another person, including a real or fictitious person, with the
intent to obtain employment.

Id. (amendment in italics).

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In 2008, Arizona passed H.B. 2745, titled “Employment of Unauthorized Aliens.”

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2008 Ariz. Legis. Serv. Ch. 152 (H.B. 2745) (West). The bill amended and created

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statutes relating to the employment of unauthorized aliens. Id. (amending A.R.S. § 23-

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212; creating A.R.S. § 23-212.01). The bill also contained provisions that ensured

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employers’ participation in the federal government’s e-verify program. As relevant here,

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H.B. 2745 amended A.R.S. § 13-2008(a) to add the following italicized language:
A person commits taking the identity of another person or entity if the
person knowingly takes, purchases, manufactures, records, possesses or
uses any personal identifying information or entity identifying information
of another person or entity, including a real or fictitious person or entity,
without the consent of that other person or entity, with the intent to obtain
or use the other person’s or entity’s identity for any unlawful purpose or to
cause loss to a person or entity whether or not the person or entity actually
suffers any economic loss as a result of the offense, or with the intent to
obtain or continue employment.
Id. (amendment in italics).

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C.

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This lawsuit concerns § 13-2009(A)(3), created by H.B. 2779, and the language

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added to § 13-2008(A) by H.B. 2745. For the sake of simplicity, the Court will refer to

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these challenged provisions as “the identity theft laws.”

This Lawsuit.

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Plaintiffs argue that the identity theft laws are unconstitutional in two ways. First,

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they claim that both laws are preempted by federal immigration law under the Supremacy

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Clause of the United States Constitution. Doc. 23, ¶¶ 180-85. Second, they claim that

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the identity theft laws “constitute impermissible discrimination against noncitizens on the

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basis of alienage” and are facially invalid under the Equal Protection Clause of the

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Constitution. Doc. 23, ¶¶ 186-91; see Doc. 83 at 18 (agreeing to dismiss their as-applied

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equal protection challenge).

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Plaintiffs include Sara Cervantes Arreola, who was arrested and charged under the

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identity theft laws and ultimately convicted under § 13-2009(A)(3). Doc. 23, ¶¶ 147-56.2

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She asks the Court to declare the identity theft laws unconstitutional and to expunge the

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record of her arrest and conviction. Doc. 23, ¶ 192. Plaintiffs also include Reverend

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Susan Frederick-Gray, a Maricopa County taxpayer, and Puente Arizona, a “grassroots”

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organization that serves the immigrant community. Id., ¶¶ 9, 12. They ask the Court to

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declare the identity theft laws unconstitutional and to permanently enjoin their

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Guadalupe Arredondo was also a Plaintiff at the beginning of this case. After
discovering that she had been arrested by Chandler Police, and not by the Maricopa
County Sheriff’s Office, Ms. Arredondo agreed to dismiss her claims without prejudice
under Rule 41(a). Doc. 83 at 12 n.5.
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enforcement by the Maricopa County Defendants. Id., ¶ 192. They also seek to represent

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a class of unauthorized aliens who could be arrested and prosecuted under the identity

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theft laws, as well as a class of Maricopa County taxpayers who object to Maricopa

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County’s use of their tax dollars to fund enforcement of the identity theft laws. Doc. 23,

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¶ 169. Finally, Plaintiffs ask the Court to permanently enjoin the Maricopa County

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Defendants from “using information or documents undocumented workers submit to

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show federal authorization to work as the basis for any arrest or prosecution.” Doc. 23,

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¶ 192.

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Montgomery, County Attorney for Maricopa County; Maricopa County; and the State of

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Plaintiffs have sued Joseph M. Arpaio, Sheriff of Maricopa County; Bill

Arizona. Doc. 23, ¶¶ 13-16.

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Plaintiffs’ motion for a preliminary injunction asks the Court to enjoin Defendants

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from enforcing the identity theft laws during the duration of this lawsuit. Doc. 30. The

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motion is based only on the Supremacy Clause claim. Defendants have responded and

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have also filed motions to dismiss. Docs. 53, 55. Defendants argue that (1) Plaintiffs

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lack standing; (2) Plaintiffs have failed to state a claim under the Equal Protection

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Clause; (3) Maricopa County is not a proper party under 42 U.S.C. § 1983; and (4) the

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Court should strike Plaintiffs’ complaint in whole or in part for containing impertinent

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and irrelevant information. The Court will address the question of standing, the motion

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for a preliminary injunction, and then the remainder of Defendants’ arguments.

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II.

Standing.

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“In order to invoke the jurisdiction of the federal courts, a plaintiff must establish

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‘the irreducible constitutional minimum of standing,’ consisting of three elements: injury

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in fact, causation, and a likelihood that a favorable decision will redress the plaintiff’s

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alleged injury.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injury in fact must constitute

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“an invasion of a legally protected interest which is (a) concrete and particularized, and

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(b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations

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omitted). Plaintiffs must prove standing for each claim they seek to press and for each

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form of relief that is sought. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008).

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A plaintiff must prove standing “in the same way as any other matter on which the

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plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required

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at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Ordinarily, “‘[f]or

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purposes of ruling on a motion to dismiss for want of standing, both the trial and

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reviewing courts must accept as true all material allegations of the complaint and must

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construe the complaint in favor of the complaining party.’” Maya v. Centex Corp., 658

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F.3d 1060, 1068 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).

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But since Plaintiffs Puente Arizona and Frederick-Gray3 are moving for a preliminary

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injunction, they must make “a clear showing of each element of standing.” Townley v.

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Miller, 722 F.3d 1128, 1133 (9th Cir. 2013); see Lopez, 630 F.3d at 785 (“Therefore, at

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the preliminary injunction stage, a plaintiff must make a ‘clear showing’ of his injury in

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fact.”).

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A.

Sara Cervantes Arreola.

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Sara Cervantes Arreola claims she has standing based on the collateral

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consequences flowing from her conviction under the identity theft laws. See Doc. 83 at

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4. Defendants argue that Ms. Arreola has not shown an injury in fact sufficient to confer

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standing. Doc. 53 at 5. Generally, “[p]ast exposure to illegal conduct does not in itself

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show a present case or controversy regarding injunctive relief . . . if unaccompanied by

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any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96

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(1974); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“Once the convict’s sentence has

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expired, . . . some concrete and continuing injury . . . – some ‘collateral consequence’ of

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the conviction – must exist if the suit is to be maintained.”).

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The Supreme Court has recognized a presumption “that a wrongful criminal

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conviction has continuing collateral consequences[.]” Spencer, 523 U.S. at 8 (citing

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Sibron v. New York, 392 U.S. 40, 55-56 (1968)). “Once convicted, one remains forever

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Plaintiff Sara Cervantes Arreola is seeking declaratory relief and a separate
injunction that is not at issue in Plaintiffs’ motion for a preliminary injunction. See
Doc. 83 at 12 (explaining relief sought by Plaintiff Arreola); Doc. 23, ¶ 192.
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subject to the prospect of harsher punishment for a subsequent offense as a result of

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federal and state laws that either already have been or may eventually be passed.”

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Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994); see also Chaker v. Crogan, 428

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F.3d 1215, 1219 (9th Cir. 2005) (recognizing an “irrefutable presumption that collateral

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consequences result from any criminal conviction”). Therefore, “there is a presumption

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of collateral consequences sufficient for standing if the correctness of the conviction is at

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issue.” United States v. Palomba, 182 F.3d 1121, 1123 n.3 (9th Cir. 1999).

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Plaintiff Arreola continues to suffer the “collateral consequences” of her allegedly
unconstitutional conviction.

She faces “the prospect of harsher punishment for a

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subsequent offense[.]” Chaker, 428 F.3d at 1219. This injury is traceable to the identity

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theft laws challenged in this case. Should the Court find the laws unconstitutional, the

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Court would have the power to redress Ms. Arreola’s injury by expunging her criminal

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records. See United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000); United States

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v. Smith, 940 F.2d 395, 396 (9th Cir. 1991) (“[W]e have sanctioned the remedy of

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expunction of [local] criminal records in civil rights cases involving unconstitutional state

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convictions.”). The Court agrees with Defendants that the power to expunge criminal

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records is narrow, but the Court need not decide whether to exercise that power at this

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stage in the litigation. Ms. Arreola has alleged sufficient facts to establish standing.

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B.

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Puente Arizona argues that it has both associational standing to sue on behalf of its

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members and direct standing to sue on its own behalf. Doc. 83 at 6-11. The Court will

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address each of these arguments.

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Puente Arizona.

1.

Associational Standing.

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An organization has standing to sue on behalf of its members if “‘(a) its members

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would otherwise have standing to sue in their own right; (b) the interests it seeks to

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protect are germane to the organization’s purposes; and (c) neither the claim asserted nor

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the relief requested requires the participation of individual members in the lawsuit.’”

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Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000)

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(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). In

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assessing whether an association’s members would otherwise have standing to sue in

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their own right, the Court need only find that one member would have standing for each

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type of relief sought. United Food & Commercial Workers Union Local 751 v. Brown

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Grp., Inc., 517 U.S. 544, 546 (1996); Valle del Sol, 732 F.3d at 1014-19.

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a.

Standing to Sue in Their Own Right.

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For the first factor of associational standing, Plaintiffs argue that at least three of

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Puente’s members would have standing to sue in their own right because there is a

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“credible threat” that they will be prosecuted under the identity theft laws. A credible

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threat of prosecution can be an injury-in-fact sufficient to confer standing. Thomas v.

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Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000). Specifically, a

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member of Puente could satisfy the injury-in-fact requirement by showing an “‘intention

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to engage in a course of conduct arguably affected with a constitutional interest, but

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proscribed by a statute, and [that] there exists a credible threat of prosecution

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thereunder.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting

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Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). The Ninth Circuit has established a

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three-part test for identifying a credible threat of prosecution: “(1) whether the plaintiffs

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have articulated a ‘concrete plan’ to violate the law in question; (2) whether the

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government has communicated a specific warning or threat to initiate proceedings; and

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(3) the history of past prosecution or enforcement under the statute.” Oklevueha Native

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Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 835 (9th Cir. 2012) (citing Thomas,

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220 F.3d at 1138). Although Oklevueha used this test for the issue of constitutional

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ripeness, earlier cases have used it for the issue of standing. See Thomas, 220 F.3d at

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1138; San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1127 (9th Cir. 1996).

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i.

Credible Threat of Prosecution.

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The Court finds that three of Puente’s members face a credible threat of

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prosecution under the identity theft laws. Plaintiffs have submitted anonymous affidavits

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from three members. Doc. 130-1.4 Each affiant declares that he or she is living in

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Arizona, is an active member of Puente, and has used the social security number and

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green card of another to obtain his or her current job. Id. This conduct falls within the

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purview of the identity theft laws. The affiants have not only “articulated a ‘concrete

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plan’ to violate the law in question,” Oklevueha, 676 F.3d at 835, they are currently

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violating it.

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There is also a “history of past prosecution or enforcement under the statute.”

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Oklevueha, 676 F.3d at 835. Law enforcement officials in Arizona have arrested and

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charged thousands of people for identity theft. Doc. 60-4 at 12 (Matthew Bileski and

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Phillip Stevenson, Identity Theft Arrest and Case Processing Data (2013)). In 2010

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alone, law enforcement charged approximately 1,900 people with identity theft under

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A.R.S. § 13-2008 and 590 people with aggravated identity theft under A.R.S. § 13-2009.

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Id. at 12-16. These charges led to over 160 convictions. Id. Since November 22, 2010,

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the Maricopa County Attorney’s Office has filed approximately 194 cases under A.R.S.

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§ 13-2008(A) where there was a known victim. Doc. 85 at 3. As a method of enforcing

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the identity theft laws, the Maricopa County Sheriff’s Office has at times raided private

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establishments and arrested individuals who were using fraudulent identification. See,

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e.g., Doc. 30-7 (Declaration of Sara Arreola). Many, though not all, of the people

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charged under these statutes are unauthorized aliens. See, e.g., id.; Doc. 30-3 at 51.

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For the remaining prong of the credible threat test, Defendants argue that they

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have not “communicated a specific warning or threat to initiate proceedings” against

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Plaintiffs. Doc. 132. They emphasize that “the mere existence of a proscriptive statute

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Plaintiffs initially submitted affidavits of Puente’s director, stating that members
of Puente were violating the identity theft laws and faced a credible threat of prosecution.
Docs. 30-4, 95-2. The Court found these affidavits insufficient, Doc. 129 (citing
Summers v. Earth Island Inst., 555 U.S. 488 (2009)), and permitted Plaintiffs to submit
anonymous affidavits of Puente members, Doc. 129 (citing Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000)). Defendants argue that they did
not have an opportunity to be heard on the issue of anonymous affidavits. Doc. 132 at 2.
The Court does not agree. The issue was first raised in Plaintiffs’ motion for preliminary
injunction. Doc. 30 at 28. The issue was also raised during oral argument. Doc. 111 at
30-32. Defendants had the opportunity to address this issue in their responses to the
motion for preliminary injunction and in the various briefs they filed after oral argument.
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[or] a generalized threat of prosecution,” Thomas, 220 F.3d at 1139, is not sufficient to

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confer standing. They also point to a recent decision by the Maricopa County Sheriff’s

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Office (“MCSO”) to stop enforcing the identity theft laws. And they argue that Plaintiffs

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do not face a threat of prosecution because they will be eligible for employment

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authorization documents under the federal government’s recent expansion of its deferred

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action policy.

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The Court is not persuaded by these arguments. The question of “whether the

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prosecuting authorities have communicated a specific warning or threat to initiate

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proceedings” is merely one factor in “evaluating the genuineness of a claimed threat to

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initiate proceedings.” Valle del Sol, 732 F.3d at 1016 (quoting Thomas, 220 F.3d at

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1139). It is less relevant when there is a clear history of enforcing the law in question.

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“[A] history of past enforcement against parties similarly situated to the plaintiffs cuts in

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favor of a conclusion that a threat is specific and credible.” Lopez, 630 F.3d at 786-87;

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see also Susan B. Anthony, 134 S. Ct. at 2345 (“[P]ast enforcement against the same

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conduct is good evidence that the threat of enforcement is not ‘chimerical’”) (quoting

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Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Here, Plaintiffs currently are violating

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the identity theft laws and there is a long history of enforcement of those laws. This is

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sufficient for a pre-enforcement challenge.

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The MCSO’s recent decision to stop enforcing the identity theft laws does not

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alter this conclusion. Other law enforcement agencies within Maricopa County remain

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capable of enforcing these laws. Although Defendants argue that enforcement by other

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agencies “is not redressable because none of those other agencies are defendants,”

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Doc. 132 at 4, the Maricopa County Attorney remains a defendant and he may prosecute

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persons arrested by city police departments within Maricopa County, see A.R.S. § 11-109

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(defining boundaries of Maricopa County); A.R.S. § 11-532 (defining powers of the

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county attorney). In addition, the MCSO’s recent decision is not yet in effect. Doc. 131-

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1 at 3 (“[T]he Criminal Employment Unit (CEU) will be disbanded after the current

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identity theft investigation concludes in the end of January or early February of 2015.”).

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As of the date of this order, Plaintiffs continue to face a threat of prosecution. Finally,

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Defendants have identified nothing that would prevent the MCSO from resuming

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enforcement of the identity theft laws at a later date.

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Nor have Defendants clearly shown that the anonymous affiants are eligible for

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employment authorization documents. The federal government did recently expand its

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deferred action program. See Memorandum of Secretary of Department of Homeland

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Security, Exercising Prosecutorial Discretion (Nov. 20, 2014) (available at http://www.

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dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf). But even if

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the affiants meet some of the requirements of that program, their receipt of deferred

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action is not guaranteed. “[T]he ultimate judgment as to whether an immigrant is granted

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deferred action will be determined on a case-by-case basis.” Id. at 5. Furthermore, the

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newly expanded program may not begin until May of 2015. Id. Until that time, the three

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members of Puente who submitted anonymous affidavits face a credible threat of

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prosecution under the identity theft laws.

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ii.

Constitutional Interests Factor.

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The Supreme Court has said that a pre-enforcement challenge may be brought by a

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plaintiff who alleges “‘an intention to engage in a course of conduct arguably affected

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with a constitutional interest[.]’” Susan B. Anthony, 134 S. Ct. at 2342 (quoting Babbitt,

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442 U.S. at 298) (emphasis added). Although courts often quote this language in pre-

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enforcement challenge cases, they have not explained its meaning or whether it is always

21

required. Some cases appear to treat this language as a threshold requirement for pre-

22

enforcement challenges, see, e.g., Sturgeon v. Masica, 768 F.3d 1066, 1071-72 (9th Cir.

23

2014), while others ignore it entirely, see, e.g., Holder v. Humanitarian Law Project, 561

24

U.S. 1, 15 (2010), Thomas, 220 F.3d 1134, San Diego Cnty. Gun Rights Comm., 98 F.3d

25

1121. Without deciding whether this constitutional interest requirement applies to all

26

pre-enforcement challenges, the Court notes that the Ninth Circuit has found it satisfied

27

when a plaintiff challenges a law on constitutional grounds. In Valle del Sol, the plaintiff

28

brought a pre-enforcement challenge to an immigration-related law on Supremacy Clause

- 12 -

1

grounds. 732 F.3d at 1015. The Ninth Circuit cited the constitutional interest language

2

and then found that the plaintiff had standing because she “has established a credible

3

threat of prosecution under this statute, which she challenges on constitutional grounds.”

4

Id. Here also, Puente’s members have established a credible threat of prosecution and

5

challenge the identity theft laws under the Supremacy Clause.
iii.

6

First Factor Conclusion.

7

Three of Puente’s members have shown that they are suffering an injury-in-fact

8

due to the credible threat of prosecution they face under the identity theft laws. This

9

injury is traceable to Defendants who are enforcing the laws, and a favorable decision for

10

Plaintiffs would redress this injury by enjoining such enforcement. Plaintiffs have made

11

a clear showing that the three members of Puente would have standing to sue in their own

12

right.

13

b.

Remaining Factors of Associational Standing.

14

The second factor for associational standing is whether “the interests [Puente]

15

seeks to protect are germane to the organization’s purposes.” Ecological Rights, 230

16

F.3d at 1147. This prong requires only “mere pertinence between litigation subject and

17

organizational purpose.” Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1159

18

(9th Cir. 1998) (quoting Humane Soc’y of the United States v. Hodel, 840 F.2d 45, 58

19

(D.C. Cir. 1988)). Puente’s mission is to “develop, educate, and empower migrant

20

communities to enhance the quality of life of our community members.” Doc. 104 at 5;

21

Doc. 30-4, ¶¶ 6, 9. The subject matter of this litigation – identity theft laws applied to

22

unauthorized aliens – is pertinent to this organizational mission.

23

The third factor is also satisfied because “neither the claim asserted nor the relief

24

requested requires the participation of individual members in the lawsuit.” Ecological

25

Rights, 230 F.3d at 1147. The individual members of Puente would assert the same right

26

being asserted by Plaintiffs – the right not to be prosecuted under unconstitutional laws –

27

and their individual backgrounds and circumstances would be irrelevant to determining

28

the constitutionality of the identity theft laws.

- 13 -

1
2

The Court finds that Puente has made a clear showing that it satisfies the three
requirements for associational standing.
2.

3

Direct Standing of Puente.5

4

A “concrete and demonstrable injury to the organization’s activities – with the

5

consequent drain on the organization’s resources –” is sufficient to confer direct standing

6

on an organization. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The

7

Ninth Circuit has “interpreted Havens to stand for the proposition that an organization

8

may satisfy the Article III requirement of injury in fact if it can demonstrate:

9

(1) frustration of its organizational mission; and (2) diversion of its resources to combat

10

the [effects of the particular law] in question.” Smith v. Pac. Properties & Dev. Corp.,

11

358 F.3d 1097, 1105 (9th Cir. 2004) (citing Fair Hous. of Marin v. Combs, 285 F.3d 899,

12

905 (9th Cir. 2002)). An organization cannot, however, “‘manufacture the injury by

13

incurring litigation costs or simply choosing to spend money fixing a problem that

14

otherwise would not affect the organization at all. It must instead show that it would

15

have suffered some other injury if it had not diverted resources to counteracting the

16

problem.’” Valle del Sol, 732 F.3d at 1018 (quoting La Asociacion de Trabajadores de

17

Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) (citations omitted)).

18

Puente Arizona has established standing under this test. The declaration of Carlos

19

Garcia, the executive director of Puente, establishes that Puente is a community-based

20

organization with more than two-hundred members, many of whom are unauthorized

21

aliens. Doc. 30-4. Puente serves its members through English classes, “know-your rights

22

workshops,” and other educational programs. Mr. Garcia knows many members who

23

have used false information to obtain employment and who face prosecution under the

24

identity theft laws. Mr. Garcia’s declaration shows that enforcement of the identity theft

25
26
27
28

5

The Court need “only conclude that one of the plaintiffs has standing in order to
consider the merits of the plaintiffs’ claim,” Valle del Sol, 732 F.3d at 1014, but the Court
will address the standing of all Plaintiffs because Defendants’ motion to dismiss
challenges that standing, Doc. 53 at 5.

- 14 -

1

laws has injured Puente Arizona in two ways. First, many Puente members, including

2

leaders, have reduced their participation in Puente’s activities because the identity theft

3

laws have caused financial difficulties and made them afraid of arrest and retaliation.

4

See, e.g., Doc. 30-4, ¶¶ 16, 20-21, 24, 26. Second, Puente has diverted substantial

5

resources to respond to the workplace raids through which the MCSO has enforced the

6

identity theft laws. See, e.g., id. ¶¶ 28-40. The declaration of Noemi Romero, a member

7

of Puente, corroborates Mr. Garcia’s declaration. Doc. 30-6 (describing how Puente

8

helped Ms. Romero after she had been arrested during a workplace raid).

9

These are the kind of injuries that the Ninth Circuit has found sufficient to confer

10

direct standing on an organization. In Valle del Sol, a group of plaintiffs challenged an

11

Arizona law that criminalized the act of harboring or transporting unauthorized aliens.

12

732 F.3d at 1012-13. Through written declarations, various organizations claimed that

13

the law deterred participation and required them to divert resources to educate their

14

members. Id. at 1018. Valle del Sol found that the organizations had made a clear

15

showing of injury.

16

Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (finding organizational

17

standing at the preliminary injunction stage because the organization had “investigated

18

Roommate’s alleged violations and, in response, started new education and outreach

19

campaigns targeted at discriminatory roommate advertising”).

Id.; see also Fair Hous. Council of San Fernando Valley v.

20

Puente has shown that enforcement of the identity theft laws has deterred

21

participation, thereby frustrating its mission, and forced it to divert resources. This is an

22

injury fairly traceable to the conduct of Defendants that would be redressed by a

23

favorable decision. Puente has made a clear showing of its direct standing.

24

C.

Reverend Frederick-Gray.

25

Reverend Frederick-Gray claims standing as a Maricopa County taxpayer.

26

Doc. 23, ¶¶ 165-68. She objects to the Maricopa County Defendants’ enforcement of the

27

identity theft laws as an illegal expenditure of county taxpayer funds. Id.; see Doc. 30-8

28

(Reverend Frederick-Gray’s Declaration). Defendants argue that Reverend Frederick-

- 15 -

1

Gray’s status as a taxpayer is insufficient to confer standing. Doc. 53 at 7-10. But

2

Defendants conflate the standards for federal and state taxpayer standing with the

3

standards for municipal taxpayer standing. Taxpayers generally are not able to challenge

4

an illegal expenditure of federal or state funds. See Frothingham v. Mellon, 262 U.S.

5

447, 487-88 (1923) (finding that the “relation of a taxpayer of the United States to the

6

federal government . . . . is shared with millions of others, [and] is comparatively minute

7

and indeterminable”); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344-46 (2006)

8

(finding that state taxpayers have no standing to challenge state tax or spending decisions

9

simply by virtue of their status as taxpayers).

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Supreme Court has recognized a different standard for municipal taxpayer
standing:
The interest of a taxpayer of a municipality in the application of its moneys
is direct and immediate and the remedy by injunction to prevent their
misuse is not inappropriate. It is upheld by a large number of state cases
and is the rule of this court. . . . The reasons which support the extension of
the equitable remedy to a single taxpayer in such cases are based upon the
peculiar relation of the corporate taxpayer to the corporation which is not
without some resemblance to that subsisting between stockholder and
private corporation.
Frothingham, 262 U.S. at 486-87 (citations omitted); see also DaimlerChrysler, 547 U.S.
at 349 (noting the separate standard for municipal taxpayer standing). Although the
reasoning in Frothingham “could be questioned in an age in which some cities boast
populations in the millions,” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197,
210 (6th Cir. 2011), courts still adhere to its holding on municipal taxpayer standing. See
id.; Pelphrey v. Cobb Cnty., Ga., 547 F.3d 1263, 1280-81 (11th Cir. 2008); United States
v. City of New York, 972 F.2d 464, 470-71 (2d Cir. 1992); Cammack v. Waihee, 932 F.2d
765, 770 (9th Cir. 1991); D.C. Common Cause v. D.C., 858 F.2d 1, 4-5 (D.C. Cir. 1988).6
6

In his reply brief, Defendant Arpaio argues that the term ‘municipal’ can only
mean a city or town and does not apply to county taxpayers. Doc. 116 at 6. But courts
have applied the doctrine of municipal taxpayer standing to county taxpayers. See
Pelphrey v. Cobb Cnty., Ga., 547 F.3d 1263 (11th Cir. 2008); We Are Am./Somos Am.,
Coal. of Arizona v. Maricopa Cnty. Bd. of Supervisors, 809 F. Supp. 2d 1084 (D. Ariz.
2011). This is consistent with how Black’s Law Dictionary (9th ed. 2009) defines the
term ‘municipal’: “Of or relating to a city, town, or local governmental unit.”
Furthermore, courts in other contexts have found that the term municipal includes county
- 16 -

1

The Ninth Circuit has applied the “requirement of a pocketbook injury” to

2

municipal taxpayer standing. Cammack, 932 F.2d at 770. This means that “municipal

3

taxpayer standing simply requires the ‘injury’ of an allegedly improper expenditure of

4

municipal funds[.]” Id.; see also Barnes–Wallace v. City of San Diego, 530 F.3d 776,

5

786 (9th Cir. 2008) (“[M]unicipal taxpayers must show an expenditure of public funds to

6

have standing.”); We Are Am./Somos Am., Coal. of Arizona v. Maricopa Cnty. Bd. of

7

Supervisors, 809 F. Supp. 2d 1084, 1108 (D. Ariz. 2011) (finding that “‘improper

8

expenditure of public funds’ is the crux of any claim that a municipal taxpayer satisfies

9

the injury in fact prong of constitutional standing”). This standard is less stringent than

10

that applied for federal and state taxpayer standing, as there is a “direct and immediate”

11

relation of a taxpayer with her municipality. See DaimlerChrysler, 547 U.S. at 349.

12

There is some uncertainty as to whether a municipal taxpayer must prove the

13

amount that a municipality has spent enforcing an unconstitutional law.

See, e.g.,

14

Cammack, 932 F.2d at 771 (noting that plaintiffs “specifically have stated the amount of

15

funds appropriated and allegedly spent”); We Are Am., 809 F. Supp. 2d at 1110 (noting

16

that although an allegation of improper expenditure is sufficient to survive a motion to

17

dismiss, proof of the amount expended may be necessary later in the case). The Court

18

finds that proof of the amount expended on enforcing the identity theft laws is not

19

necessary for Reverend Frederick-Gray to make a clear showing of standing. The record

20

shows that the Maricopa County Defendants spent taxpayer dollars arresting, jailing, and

21

convicting Plaintiff Sara Arreola under A.R.S. § 13-2009(A)(3). See Doc. 69-1 at 34;

22

Doc. 30-7. The precise amount that Defendants spent on this action is irrelevant to the

23

essential nature of Reverend Frederick-Gray’s alleged injury – the improper expenditure

24

of taxpayer funds. This injury is fairly traceable to Defendants’ conduct in enforcing the

25

identity theft laws, and a favorable decision would redress Reverend Frederick-Gray’s

26

injury by preventing further expenditures for enforcement of the identity theft laws. See,

27
28

governments. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997)
(finding that municipal liability under § 1983 applied to a county government).
- 17 -

1

e.g., We Are Am., 809 F. Supp. 2d at 1111; Hinrichs v. Bosma, 440 F.3d 393, 397-98 (7th

2

Cir. 2006) (“Such an injury is redressed not by giving the tax money back . . . but by

3

ending the unconstitutional spending practice.”) (citations omitted). The Court finds that

4

Reverend Frederick-Gray has made a clear showing of standing.

5

III.

Preliminary Injunction.

6

A preliminary injunction “is an extraordinary and drastic remedy, one that should

7

not be granted unless the movant, by a clear showing, carries the burden of persuasion.”

8

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright,

9

A. Miller, & M. Kane, Federal Practice and Procedure § 2948, 129-130 (2d ed. 1995)).

10

An injunction may be granted when the movant shows that “‘he is likely to succeed on

11

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

12

that the balance of equities tips in his favor, and that an injunction is in the public

13

interest.’” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th

14

Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). In

15

this circuit, a preliminary injunction may also be issued when a plaintiff shows that

16

“‘serious questions going to the merits were raised and the balance of hardships tips

17

sharply in [plaintiff’s] favor.’” Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127,

18

1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.

19

2008)). The movant has the burden of proof on each element of the test. Envtl. Council

20

of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

21

A.

Likelihood of Success on the Merits.

22

Plaintiffs base their request for a preliminary injunction on their claim that the

23

identity theft laws are preempted under the Supremacy Clause. “The Supremacy Clause

24

provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the

25

Judges in every State shall be bound thereby, anything in the Constitution or Laws of any

26

State to the Contrary notwithstanding.’” Arizona, 132 S. Ct. at 2500 (quoting U.S. Const.

27

art. VI, cl. 2). Under this rule, “Congress has the power to preempt state law.” Crosby v.

28

Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). “‘[T]he purpose of Congress is

- 18 -

1

the ultimate touchstone in every pre-emption case.’” Wyeth v. Levine, 555 U.S. 555, 565

2

(2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). The preemption

3

doctrine consists of three well-recognized classes: express, field, and conflict preemption.

4

Arizona, 132 S. Ct. at 2500-01. Express preemption occurs when Congress “withdraw[s]

5

specified powers from the States by enacting a statute containing an express preemption

6

provision.” Id. (citing Whiting, 131 S. Ct. at 1974-75). Field preemption precludes states

7

“from regulating conduct in a field that Congress, acting within its proper authority, has

8

determined must be regulated by its exclusive governance.” Id. at 2501 (citing Gade v.

9

Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 115 (1992)). Conflict preemption occurs

10

“where ‘compliance with both federal and state regulations is a physical impossibility,’

11

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), and in

12

those instances where the challenged state law ‘stands as an obstacle to the

13

accomplishment and execution of the full purposes and objectives of Congress,’ Hines v.

14

Davidowitz, 312 U.S. 52, 67 (1941).” Id. In resolving preemption challenges to state

15

laws, “courts should assume that ‘the historic police powers of the States’ are not

16

superseded ‘unless that was the clear and manifest purpose of Congress.’” Id. (quoting

17

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

18
19
20

Plaintiffs do not claim that the identity theft laws are expressly preempted. They
rely instead on field and conflict preemption.
1.

Purpose and Effect of Identity Theft Laws.

21

Before discussing field and conflict preemption, the Court must address

22

Defendants’ argument that preemption analysis does not apply because the identity theft

23

laws are facially neutral as to immigration and unauthorized aliens. See, e.g., Doc. 60 at

24

9-12; Doc. 75 at 11-13. The challenged laws are facially neutral. They criminalize use

25

of the personal identifying information of another person, whether real or fictitious, with

26

the intent to obtain or continue employment, regardless of the immigration status of the

27

person using the information. A.R.S. §§ 13-2008(A), 13-2009(A). They apply equally to

28

unauthorized aliens and United States citizens.

- 19 -

1

In a preemption case, however, the Court may consider not only the face of a state

2

law, but also its purpose and effect.7 See New York State Conference of Blue Cross &

3

Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658 (1995) (considering the

4

“purpose and the effects” of the challenged state law). This requires consideration of the

5

“purpose and intent of the body passing the law at issue,” Tillison v. City of San Diego,

6

406 F.3d 1126, 1129 (9th Cir. 2005), and “any specific expressions of legislative intent in

7

the statute itself as well as the legislative history,” Cal. Tow Truck Ass’n v. City & Cnty.

8

of San Francisco, 693 F.3d 847, 859 (9th Cir. 2012).

9

In assessing the impact of a state law on a federal scheme, courts “have refused to

10

rely solely on the legislature’s professed purpose and have looked as well to the effects of

11

the law.” Gade, 505 U.S. at 105; see also English v. Gen. Elec. Co., 496 U.S. 72, 84

12

(1990). “[W]hen considering the purpose of a challenged statute, [courts are] not bound

13

by ‘[t]he name, description or characterization given it by the legislature or the courts of

14

the State,’ but will determine for [themselves] the practical impact of the law.” Hughes v.

15

Oklahoma, 441 U.S. 322, 336 (1979) (cited by Gade, 505 U.S. at 106) (citation omitted).

16

A state law may not “frustrate the operation of federal law [even if] the state legislature in

17

passing its law had some purpose in mind other than one of frustration.” Perez v.

18

Campbell, 402 U.S. 637, 651-52 (1971).

19

Here, a primary purpose and effect of the identity theft laws is to impose criminal

20

penalties on unauthorized aliens who seek or engage in unauthorized employment. The

21

titles of H.B. 2779 and H.B. 2745 – the “Legal Arizona Workers’ Act” and “Employment

22

of Unauthorized Aliens” – reflect a clear intent to regulate employment of unauthorized

23

aliens. The bills that enacted the identity theft laws included other provisions that related

24

almost entirely to employment of unauthorized aliens, as discussed above. The identity

25
26
27
28

7

Defendants argue that because the language of the identity theft laws is
unambiguous, the Court should not consider legislative purpose and history. The cases
they cite, however, address issues of statutory construction, not preemption. See, e.g.,
United States v. James, 478 U.S. 597, 606 (1986); Rubin v. United States, 449 U.S. 424,
430 (1981); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980).
- 20 -

1

theft laws will also have the most impact on unauthorized aliens, who often use the

2

“personal identifying information” of another person to “obtain or continue”

3

employment. See, e.g., Doc. 30-3 at 51 (MCSO News Release, stating that “100% of all

4

suspects found to be committing identity theft to gain employment were illegal aliens”).

5

The legislative history also indicates a purpose to regulate unauthorized aliens

6

who seek employment. When arguing in support of H.B. 2779’s amendment to A.R.S.

7

§ 13-2009(A), Senator O’Halleran stated that people convicted under the identity theft

8

law would be encouraged to “self-deport” instead of serving long prison sentences.

9

Doc. 30-3 at 45. Senator Robert Burns supported H.B. 2779 because it would show that

10

Arizona was tough on illegal immigration. Id. at 42. Similarly, Representative Russell

11

Pearce – a sponsor of H.B. 2779 and H.B. 2745 (Doc. 30-2 at 55, 69) – made clear that

12

H.B. 2779 was designed to address the problem of illegal immigration. Doc. 30-3 at 4-7.

13

When signing H.B. 2779 into law, Governor Napolitano noted that a “state like Arizona

14

[has] no choice but to take strong action to discourage the further flow of illegal

15

immigration through our borders.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West).

16

Defendants provide no legislative history that shows a contrary intent. Indeed,

17

Defendants suggested during oral argument that there simply is no legislative history

18

pertaining to the identity theft laws. Doc. 111 at 51-52. They argued that because H.B.

19

2779 and H.B. 2745 contain multiple provisions, the Court cannot connect the legislative

20

history to the specific identity theft provisions at issue in this case. The Court finds this

21

argument unpersuasive because the various provisions of the bills all relate to the

22

employment of unauthorized aliens.

23

Considering the text, purpose, and effect of the identity theft laws, the Court finds

24

that they are aimed at imposing criminal penalties on unauthorized aliens who seek or

25

engage in unauthorized employment in the State of Arizona. It is therefore appropriate to

26

consider the preemptive effect of federal immigration law.

27
28

2.

Field Preemption.

“States are precluded from regulating conduct in a field that Congress, acting

- 21 -

1

within its proper authority, has determined must be regulated by its exclusive

2

governance.” Arizona, 132 S. Ct. at 2501. “[F]ield preemption can be inferred either

3

where there is a regulatory framework ‘so pervasive . . . that Congress left no room for

4

the States to supplement it’ or where the ‘federal interest [is] so dominant that the federal

5

system will be assumed to preclude enforcement of state laws on the same subject.’”

6

Valle del Sol, 732 F.3d at 1023 (quoting Arizona, 132 S. Ct. at 2501). “Where Congress

7

occupies an entire field, . . . even complementary state regulation is impermissible.”

8

Arizona, 132 S. Ct. at 2501.

9

When asked during oral argument to identify the precise field occupied by

10

Congress, Plaintiffs’ counsel identified two: the regulation of unauthorized-alien

11

employment and the regulation of unauthorized-alien fraud to circumvent the federal

12

employment verification system. Doc. 111 at 18. In Arizona, the Supreme Court did not

13

conclude that Congress had occupied the field of unauthorized-alien employment.

14

Although it noted that Congress has regulated that field extensively, it applied conflict

15

preemption in striking down an Arizona law that made it a crime for unauthorized aliens

16

to seek employment. Arizona, 132 S. Ct. at 2503-05. If the Supreme Court did not find

17

the field of unauthorized-alien employment preempted, this Court is not likely to either.

18

The narrower field identified by Plaintiffs – unauthorized-alien fraud in seeking

19

employment – has been heavily and comprehensively regulated by Congress. As noted

20

above, Congress requires employers to verify the authorized status of aliens seeking

21

employment and has established an entire federal system for employment verification.

22

Employers must comply with the program and verify that applicants are authorized to

23

work in the United States, and applicants must submit specified documents for use in the

24

verification system. To combat fraud in obtaining employment, IRCA makes it a federal

25

crime for an applicant to use a false identification document for the purpose of satisfying

26

the federal employment verification system. 18 U.S.C. § 1546(b). IRCA also expands

27

the crimes for selling, making, or using fraudulent immigration documents to include

28

those used “as evidence of authorized . . . employment in the United States.”

- 22 -

Id.

1

§ 1546(a). And IRCA specifically identifies other federal criminal statutes that can be

2

applied to fraud in the employment verification process. See Pub. L. 99-603, § 101

3

(adding 8 U.S.C. § 1324a(b)(5) and listing applicable statutes in Title 18, §§ 1001 [false

4

statements], 1028 [fraud in connection with identity documents], 1546, and 1621

5

[perjury]).

6

Congress has also enacted laws that impose civil penalties on persons who use

7

false documents to satisfy the employment verification system. 8 U.S.C. § 1324c. And

8

Congress has made the use of false employment documents a basis for deportation. 8

9

U.S.C. § 1227; see also id. § 1182(a)(6)(C) (making those who make false claims to

10

citizenship, including for purposes of establishing eligibility for employment,

11

inadmissible and thus ineligible for adjustment of status to that of a lawful permanent

12

resident).

13

Congress has even regulated the law enforcement use that may be made of

14

documents submitted for federal employment verification.

IRCA provides that any

15

information employees submit to indicate their work status “may not be used” for

16

purposes other than prosecution under specified federal criminal statutes for fraud,

17

perjury, and related conduct – an evident attempt to limit states from using these

18

documents to prosecute crimes. See 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G).

19

These provisions evince an intent to occupy the field of regulating fraud against

20

the federal employment verification system. Congress has imposed every kind of penalty

21

that can arise from an unauthorized alien’s use of false documents to secure employment

22

– criminal, civil, and immigration – and has expressly limited States’ use of federal

23

employment verification documents. The Court concludes that Congress has occupied

24

the field of unauthorized-alien fraud in obtaining employment. As a result, the identity

25

theft laws, which have the purpose and effect of regulating the same field, are likely

26

preempted.

27

In United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013), the Fourth

28

Circuit interpreted the same federal laws that are at issue here and found that they

- 23 -

1

occupied the field of creating, possessing, and using fraudulent immigration documents.

2

At issue was a South Carolina law that made it unlawful for a person to display or

3

possess a false form of identification for the purpose of proving lawful presence in the

4

United States.

5

immigration and instead addressed ordinary fraud. Id. The Fourth Circuit disagreed,

6

finding that the law was “field preempted in that Congress has passed several laws

7

dealing with creating, possessing, and using fraudulent immigration documents.” Id. at

8

533 (citing 8 U.S.C. § 1324c(a)(1)-(2); 18 U.S.C. § 1546). Although the state law in

9

South Carolina dealt with use of false identification to “prove lawful presence” – not to

10

“obtain or continue employment” – the reasoning in South Carolina supports the Court’s

11

conclusion that Plaintiffs are likely to prevail on their claim that Congress has occupied

12

the field of regulating fraud in the employment verification process. Other cases also

13

support this conclusion. See, e.g., Arizona, 132 S. Ct. at 2503 (finding that federal alien

14

registration laws occupied a field); Hines, 312 U.S. at 66-67 (same); Valle del Sol, 732

15

F.3d at 1026 (finding that 8 U.S.C. § 1324 occupied the field of regulating the

16

transportation and harboring of unauthorized aliens).

17

3.

Id. at 532.

South Carolina argued that the law did not relate to

Conflict Preemption.

18

Conflict preemption may occur if a state law “‘stands as an obstacle to the

19

accomplishment and execution of the full purposes and objectives of Congress.’”

20

Arizona, 132 S. Ct. at 2501 (quoting Hines, 312 U.S. at 67). But direct conflict between

21

the state and federal law is not required. Even when state and federal laws have the same

22

general objective, an “inconsistency of sanctions” between the two laws may

23

“undermine[] the congressional calibration of force.” Crosby, 530 U.S. at 380. As the

24

Supreme Court has explained, a “‘[c]onflict in technique can be fully as disruptive to the

25

system Congress enacted as conflict in overt policy.’” Arizona, 132 S. Ct. at 2505

26

(quoting Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971)).

27

Arizona’s identity theft laws pursue essentially the same purpose as the federal

28

statutes described above – they seek to deter unauthorized aliens from obtaining

- 24 -

1

employment through the use of fraudulent documents. But the two sets of laws adopt

2

different sanctions. The Arizona identity theft laws include only a criminal sanction.

3

They make the use of false documents to obtain employment a felony offense punishable

4

by a prison term that may exceed five years. See A.R.S. §§ 13-2008, 13-2009; 13-702,

5

13-703 (sentencing statutes). Under the federal scheme, federal authorities have a range

6

of options. They may impose civil penalties under 8 U.S.C. § 1324c or immigration

7

consequences under 8 U.S.C. § 1227 and § 1182(a)(6)(C). They may pursue criminal

8

sanctions under 18 U.S.C. § 1546, but only for prison sentences of five years or less. Id.

9

§ 1546(b).

10

The overlapping penalties created by the Arizona identity theft statutes, which

11

“layer additional penalties atop federal law,” likely result in conflict preemption.

12

Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1267

13

(11th Cir. 2012). The Arizona laws “conflict[] with the federal scheme by divesting

14

federal authorities of the exclusive power to prosecute these crimes.” Valle del Sol, 732

15

F.3d at 1027. As the Supreme Court has explained, “‘conflict is imminent’ whenever

16

‘two separate remedies are brought to bear on the same activity.’” Wisconsin Dep’t of

17

Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286 (1986) (quoting

18

Garner v. Teamsters, 346 U.S. 485, 498-99 (1953)).

19

In Arizona, the Supreme Court considered an Arizona law similar in nature to the

20

identity theft laws. The law made it a state misdemeanor for “an unauthorized alien to

21

knowingly apply for work, solicit work in a public place or perform work as an employee

22

or independent contractor.” 132 S. Ct. at 2503. After analyzing the relevant provisions

23

of IRCA, the Court found:

24

27

Arizona law would interfere with the careful balance struck by Congress
with respect to unauthorized employment of aliens. Although [the Arizona
law] attempts to achieve one of the same goals as federal law – the
deterrence of unlawful employment – it involves a conflict in the method of
enforcement. The Court has recognized that a “[c]onflict in technique can
be fully as disruptive to the system Congress enacted as conflict in overt
policy.”

28

Id. at 2504-05 (citations omitted). This reasoning applies here. The Court finds that

25
26

- 25 -

1

Plaintiffs are likely to succeed in their claim that the identity theft laws are conflict

2

preempted.
4.

3

Defendants’ Arguments.

4

In addition to their argument regarding the laws’ facial neutrality, Defendants

5

make four arguments for why there is no preemption in this case. The Court will address

6

each.

7

First, Defendants argue that because there are constitutional applications of the

8

identity theft laws – namely, to United States citizens – Plaintiffs’ facial preemption

9

challenge must fail. Doc. 60 at 11-12. Relying on United States v. Salerno, 481 U.S.

10

739, 745 (1987), Defendants argue that a facial preemption challenge can succeed only if

11

the challenger can show “that no set of circumstances exists under which the act would

12

be valid.” The same argument was made in Lozano v. City of Hazleton, 724 F.3d 297

13

(3rd Cir. 2013), another case involving a preemption challenge to an immigration-related

14

law. The Third Circuit found that “no part of the majority opinion in Arizona, and no

15

part of Whiting, references Salerno at all. . . . That approach would reject a conflict

16

preemption claim in a facial challenge whenever a defendant can conjure up just one

17

hypothetical factual scenario in which implementation of the state law would not directly

18

interfere with federal law.” Id. at 313 n.22. The Court agrees. A law “is not saved from

19

pre-emption simply because the State can demonstrate some additional effect outside of

20

the [preempted area].” Gade, 505 U.S. at 107.

21

Second, Defendants emphasize that IRCA expressly preempts “any State or local

22

law imposing civil or criminal sanctions (other than through licensing and similar laws)

23

upon those who employ, or recruit or refer for a fee for employment, unauthorized

24

aliens.” 8 U.S.C. § 1324a(h)(2). Defendants argue that because the express preemption

25

provision is silent as to laws that impose sanctions on unauthorized employees, Congress

26

has impliedly permitted states to pass such laws. Doc. 69 at 11-12. The Supreme Court

27

rejected this argument in Arizona: “the existence of an ‘express pre-emption provisio[n]

28

does not bar the ordinary working of conflict pre-emption principles’ or impose a ‘special

- 26 -

1

burden’ that would make it more difficult to establish the preemption of laws falling

2

outside the clause.” 132 S. Ct. at 2504-05 (quoting Geier v. American Honda Motor Co.,

3

529 U.S. 861, 869-72 (2000)) (emphasis in original).

4

Third, Defendant Montgomery argues that because he applies the identity theft

5

laws in a nondiscriminatory manner, without reference to a person’s immigration status,

6

the laws cannot be preempted. Doc. 75 at 14-22. Defendant Montgomery emphasizes

7

that he did not lobby for the identity theft laws and has no control over how Sheriff

8

Arpaio enforces the laws. Id. These points may well be true, but the issue is not how Mr.

9

Montgomery enforces the identity theft laws. The issue is whether federal immigration

10

law preempts those laws, a question that does not turn on Mr. Montgomery’s

11

enforcement practices.

12

Finally, Defendants argue that Plaintiffs have not overcome the presumption

13

against preemption. Doc. 60 at 12; Doc. 69 at 7; Doc. 75 at 7-8; As the Supreme Court

14

explained in Arizona, “[i]n preemption analysis, courts should assume that the historic

15

police powers of the States are not superseded unless that was the clear and manifest

16

purpose of Congress.” 132 S.Ct. at 2501 (citation and quotation marks omitted). The

17

Court need not decide at this stage whether the regulation of fraud in employment by

18

unauthorized aliens is an area of historic state police powers.

19

presumption, the Court finds that Plaintiffs are likely to succeed on the merits because

20

comprehensive regulation of unauthorized-alien fraud in obtaining employment is a clear

21

and manifest purpose of Congress.8

Even applying the

22

B.

Likelihood of Irreparable Harm.

23

Having established Plaintiffs’ likelihood of success on the merits, the next issue is

24

whether Plaintiffs are likely to suffer irreparable harm absent the protection of a

25

preliminary injunction. Generally, courts of equity should not act when the moving party

26
8

27
28

Defendant Arizona argues that the presumption against preemption requires a
finding that the state law is preempted “beyond a reasonable doubt,” Doc. 60 at 12 (citing
Zadrozny v. Bank of New York Mellon, 720 F.3d 1163 (9th Cir. 2013)), but this is a statelaw standard, not the standard that applies in this federal case. See, e.g., Arizona v.
Brown, 85 P.3d 109, 114 (Ariz. Ct. App. 2004).
- 27 -

1

“will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S.

2

37, 43-44 (1971). Plaintiffs have the burden to establish that there is a likelihood – not

3

just a possibility – that they will suffer irreparable harm if a preliminary injunction is not

4

entered. See Winter, 555 U.S. at 21-23. As the Supreme Court has explained, “[t]he key

5

word in this consideration is irreparable. Mere injuries, however substantial, in terms of

6

money, time and energy necessarily expended in the absence of a stay, are not enough.

7

The possibility that adequate compensatory or other corrective relief will be available at a

8

later date, in the ordinary course of litigation, weighs heavily against a claim of

9

irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original)

10

(citation omitted); see also Rent–A–Center, Inc. v. Canyon Television & Appliance

11

Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).

12

As discussed above, three members of Puente face a credible threat of prosecution

13

under the identity theft laws. Furthermore, Plaintiffs have shown that these laws are

14

likely to be found unconstitutional. “[I]f an individual or entity faces the imminent threat

15

of enforcement of a preempted state law and the resulting injury may not be remedied by

16

monetary damages, the individual or entity is likely to suffer irreparable harm.” Valle del

17

Sol v. Whiting, No. CV 10-1061-PHX-SRB, 2012 WL 8021265, at *6 (D. Ariz. Sept. 5,

18

2012), aff’d, 732 F.3d at 1029 (“[Plaintiffs have] demonstrated a credible threat of

19

prosecution under the statute . . . . Thus, the plaintiffs have established a likelihood of

20

irreparable harm.”). The irreparable injury stems from the emotional, reputational, and

21

work-related harms that accompany an illegitimate prosecution. Thus, the Court “may

22

properly enjoin “state officers ‘who threaten and are about to commence proceedings,

23

either of a civil or criminal nature, to enforce against parties affected [by] an

24

unconstitutional act, violating the Federal Constitution.’”

25

Airlines, Inc., 504 U.S. 374, 381 (1992) (quoting Ex parte Young, 209 U.S. 123, 156

26

(1908)).

27
28

Morales v. Trans World

Defendants argue that Plaintiffs’ six-year delay in bringing this lawsuit shows that
their injury is not irreparable. Doc. 69 at 18-20; Doc. 75 at 22-23.

- 28 -

A plaintiff’s delay

1

in bringing suit can indicate that the asserted injury is not irreparable. “‘A preliminary

2

injunction is sought upon the theory that there is an urgent need for speedy action to

3

protect the plaintiff’s rights. By sleeping on its rights a plaintiff demonstrates the lack of

4

need for speedy action.’” Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211,

5

1213 (9th Cir. 1984) (quoting Gillette Co. v. Ed Pinaud, Inc., 178 F. Supp. 618, 622

6

(S.D.N.Y. 1959)). Delay, however, “is but a single factor to consider in evaluating

7

irreparable injury; courts are ‘loath to withhold relief solely on that ground.’” Arc of

8

California v. Douglas, 757 F.3d 975, 990-91 (9th Cir. 2014) (quoting Lydo, 745 F.2d at

9

1214). “Although a plaintiff’s failure to seek judicial protection can imply ‘the lack of

10

need for speedy action,’ such tardiness is not particularly probative in the context of

11

ongoing, worsening injuries.” Id. at 990 (citations omitted).

12

Delay is not decisive here. As Plaintiffs explain, the case law concerning the

13

preemptive effect of federal immigration law has dramatically expanded over the past

14

few years. Two cases that are key to Plaintiffs’ arguments – Arizona and Valle del Sol –

15

were decided recently. “[W]aiting to file for preliminary relief until a credible case for

16

irreparable harm can be made is prudent rather than dilatory.” Arc of California, 757

17

F.3d at 991. Puente, suing on behalf of its members, has shown a credible threat of

18

prosecution and, therefore, a likelihood of irreparable harm.9

19

C.

Balance of Equities and the Public Interest.

20

The Court finds that the balance of equities tips in favor of Plaintiffs. Enjoining

21

the enforcement of laws that are likely preempted will impose little hardship on

22

Defendants. This is particularly true where Defendants will continue to have other laws

23

with which they can combat identity theft. See A.R.S. §§ 13-2002, 13-2008, 13-2009.

24

Plaintiffs, in contrast, have shown a likelihood of irreparable harm if the laws are not

25

enjoined.

26
9

27
28

Because the Court finds that Plaintiffs have shown a likelihood of irreparable
harm to the members on whose behalf Puente is suing, the Court need not address the
likelihood of irreparable harm to other Plaintiffs.

- 29 -

1

The Court also finds that the public interest favors an injunction. The public has

2

little interest in the enforcement of laws that are unconstitutional. The Court recognizes

3

that the crime of identity theft affects the lives of many Arizonans. See Doc. 75 at 25-26.

4

But the injunction does not leave Defendants unequipped to combat that crime.

5

D.

Preliminary Injunction Conclusion.

6

Plaintiffs have shown that they are likely to succeed on the merits, that they are

7

likely to suffer irreparable harm in the absence of a preliminary injunction, and that the

8

balance of equities and public interest favor an injunction. The Court therefore will grant

9

Plaintiffs’ request for a preliminary injunction and enjoin Defendants from enforcing

10

A.R.S. § 13-2009(A)(3) and the portion of A.R.S. § 13-2008(A) that addresses actions

11

committed “with the intent to obtain or continue employment.”10

12

IV.

Motions to Dismiss.

13

Defendants argue that Plaintiffs have failed to state a claim under the Equal

14

Protection Clause and against Maricopa County, and that the Court should strike

15

Plaintiffs’ complaint in whole or in part for containing impertinent and irrelevant

16

information. Doc. 53, Doc. 55. Defendants also make standing arguments the Court has

17

addressed above.

18

A.

19

“The first step in determining whether a law violates the Equal Protection Clause

20

is to identify the classification that it draws.” Coal. for Econ. Equity v. Wilson, 122 F.3d

21

692, 702 (9th Cir. 1997). The classification will help the Court determine whether

Equal Protection Claim.

22
10

23
24
25
26
27
28

Defendant Arizona argues that the injunction should be limited to the named
plaintiffs. Doc. 60 at 17 (citing Zepeda v. INA, 753 F.2d 719 (9th Cir. 1983)). The Ninth
Circuit has held that a preliminary injunction should be limited to individual plaintiffs
unless the court has certified a class. Zepeda, 753 F.2d at 727. The Ninth Circuit has
also held, however, that an injunction is not overbroad because it extends benefits to
persons other than those before the Court “if such breadth is necessary to give prevailing
parties the relief to which they are entitled.” Easyriders Freedom F.I.G.H.T. v.
Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996). Because Puente seeks relief on behalf
of all its members, the Court concludes that the preliminary injunction should apply to
the identity theft laws generally. As in Easyriders, requiring law enforcement officials to
distinguish between unauthorized aliens who are members of Puente and those who are
not would be impractical, and a less than complete preliminary injunction would
therefore likely deny Puente the complete relief to which it is entitled. Id. at 1502.
- 30 -

1

“members of a certain group [are] being treated differently from other persons based on

2

membership in that group.” United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir.

3

1995). “Second, if it is demonstrated that a cognizable class is treated differently, the

4

court must analyze under the appropriate level of scrutiny whether the distinction made

5

between the groups is justified.” Id. (citing Plyer v. Doe, 457 U.S. 202, 217-18 (1982)).

6

1.

Classification.

7

A court may determine a law’s classifications by how the law discriminates (i.e.,

8

differentiates) between groups. A law may discriminate against a group of people in one

9

of three ways. First, the law may discriminate on its face, that is, by its explicit terms.

10

See, e.g., Loving v. Virginia, 388 U.S. 1 (1967). Second, the law, although neutral on its

11

face, may be administered in a discriminatory way. See, e.g., Yick Wo v. Hopkins, 118

12

U.S. 356 (1886). Third, the law, although neutral on its face and applied in accordance

13

with its terms, may have been enacted with a purpose of discriminating. See, e.g., Hunter

14

v. Underwood, 471 U.S. 222 (1985).

15

Plaintiffs argue that the identity theft laws were enacted with a purpose of

16

discriminating. See Doc. 83 at 27-30. Specifically, they argue that the identity theft laws

17

discriminate against unauthorized aliens by penalizing conduct in which unauthorized

18

aliens are more likely to engage. Id. at 27. In proving a discriminatory purpose, “[p]roof

19

of discriminatory intent is required to show that state action having a disparate impact

20

violates the Equal Protection Clause.” McLean v. Crabtree, 173 F.3d 1176, 1185 (9th

21

Cir. 1999) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

22

265 (1977)). Plaintiffs must show that the State “selected or reaffirmed a particular

23

course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects

24

upon an identifiable group.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279

25

(1979). The Court may consider various sources of evidence in determining whether a

26

law was adopted “because of” its adverse effects on a group. Arlington Heights, 429 U.S.

27

at 264-68. “The historical background of the [law] is one evidentiary source, particularly

28

if it reveals a series of official actions taken for invidious purposes.” Id. at 267. “The

- 31 -

1

legislative or administrative history [also] may be highly relevant, especially where there

2

are contemporary statements by members of the decisionmaking body, minutes of its

3

meetings, or reports.” Id. at 268.

4

Plaintiffs allegations, which must be taken as true in ruling on the motion to

5

dismiss, make a plausible claim that the identity theft laws were adopted “because of”

6

their adverse effects on unauthorized aliens. Plaintiffs allege that unauthorized aliens are

7

more likely than other people to use the “personal identifying information” of another to

8

“obtain or continue employment.” A.R.S. § 13-2008; see Doc. 83 at 27. Because of this,

9

Plaintiffs argue, there is no other group of employees as uniformly disadvantaged by the

10

identify theft statutes as unauthorized aliens. See Doc. 23, ¶¶ 97-98, 101-05, 126-27

11

(alleging that Defendants systematically enforce the identity theft laws against

12

unauthorized aliens). “[W]hen the adverse consequences of a law upon an identifiable

13

group are [inevitable], a strong inference that the adverse effects were desired can

14

reasonably be drawn.” Feeney, 442 U.S. at 279 n.25.11

15

Plaintiffs also allege discriminatory intent.

The historical background of the

16

identity theft laws shows that the Arizona Legislature was passing numerous bills

17

directed at problems associated with unauthorized aliens. Doc. 23, ¶¶ 35-50. The

18

legislative history indicates that the legislature hoped the identity theft laws would

19

encourage unauthorized aliens to leave the country.

20

(alleging that the identity theft laws were passed as part of a strategy of “attrition through

21

enforcement” towards unauthorized aliens). Plaintiffs plausibly allege that the identity

22

theft laws were passed with a purpose of discriminating against unauthorized aliens.12

See Doc. 23, ¶¶ 38-39, 55-64

23
11

24
25
26
27
28

In their reply brief, Defendants argue that Plaintiffs have failed to allege
sufficient facts to assert disparate impact and discriminatory purpose. Doc. 118 at 5-10.
Defendants also point to legislative history that shows a lack of discriminatory purpose.
Id. In so arguing, Defendants mistake the appropriate standard for a motion to dismiss.
When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the wellpled factual allegations are taken as true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Here,
Plaintiffs have alleged sufficient facts in support of their equal protection claim.
12

Numerous Ninth Circuit cases state that “‘[o]nce the plaintiff establishes
governmental classification, it is necessary to identify a ‘similarly situated class’ against
- 32 -

2.

1

Level of Scrutiny.

2

The level of scrutiny applied in an equal protection analysis depends on the

3

classification at issue. If a law classifies on the basis of race or alienage, the law must

4

satisfy strict scrutiny by a showing that the classification is necessary to achieve a

5

compelling government purpose. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 432-33

6

(1984). If a law classifies on the basis of gender or legitimacy, the law must satisfy

7

intermediate scrutiny by a showing that classification has a substantial relationship to an

8

important government purpose. See, e.g., United States v. Virginia, 518 U.S. 515, 533

9

(1996).

For all other classifications, a law must satisfy rational basis review by a

10

showing that the classification is rationally related to a legitimate government purpose.

11

See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 14 (1988). Plaintiffs argue that either a

12

“heightened scrutiny” or a rigorous rational basis review should apply. Doc. 83 at 30-34.

13

These are standards of review that do not fit neatly within the traditional categories.

14

a.

Heightened Scrutiny.

15

Plaintiffs initially argue that some form of “heightened scrutiny” should apply.

16

Doc. 83 at 30. Relying on Plyer v. Doe, 457 U.S. 202 (1982), they argue that the Court

17

should assess whether the identity theft laws further a substantial or important state

18

interest. Doc. 83 at 31. While “states must generally treat lawfully present aliens the

19
20
21
22
23
24
25
26
27
28

which the plaintiff’s class can be compared.’” Rosenbaum v. City & Cnty. of San
Francisco, 484 F.3d 1142, 1153 (9th Cir. 2007) (quoting Freeman v. City of Santa Ana,
68 F.3d 1180, 1187 (9th Cir. 1995)). Plaintiffs have not identified a similarly situated
class and Defendants argue that this is a threshold requirement. See Doc. 118 at 4. The
Court concludes that the requirement of identifying a “similarly situated class” is a
threshold requirement in only a minority of as-applied equal protection cases. See, e.g.,
Rosenbaum, 484 F.3d at 1153 (as-applied challenge to a noise ordinance); United States
v. Arenas-Ortiz, 339 F.3d 1066, 1068-69 (9th Cir. 2003) (as-applied selective prosecution
claim); Freeman, 68 F.3d at 1187 (as-applied challenge to police practices). Otherwise,
the “similarly situated” requirement is simply a restatement of core Equal Protection
concerns, namely, that “‘all persons similarly circumstanced shall be treated alike.’”
Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S. Royster guano Co. v. Virginia, 253
U.S. 412, 415 (1920)). In many cases involving an equal protection challenge to a statute
based on its discriminatory purpose, the Supreme Court has not discussed or applied the
“similarly situated” requirement. See, e.g., Feeney, 442 U.S. at 256; Arlington Heights,
429 U.S. at 252; see also Giovanna Shay, Similarly Situated, 18 Geo. Mason L. Rev.
581, 598 (2011) (noting that the ‘similarly situated’ requirement “has never been viewed
by the U.S. Supreme Court as a threshold hurdle to obtaining equal protection review on
the merits”).
- 33 -

1

same as citizens, and state classifications based on alienage are subject to strict scrutiny

2

review,” Korab v. Fink, 748 F.3d 875, 881 (9th Cir. 2014) (emphasis added) (citing In re

3

Griffiths, 413 U.S. 717, 719-22 (1973)), the same is not true for unauthorized aliens.

4

“Undocumented aliens cannot be treated as a suspect class because their presence in this

5

country in violation of federal law is not a ‘constitutional irrelevancy.’” Plyler, 457 U.S.

6

at 223. Plyler considered the constitutionality of a Texas law that denied undocumented

7

alien children a free public school education. Id. at 205. The Court explained that

8

“undocumented status is not irrelevant to any proper legislative goal.

9

undocumented status an absolutely immutable characteristic since it is the product of

10

conscious, indeed unlawful action.” Id. at 220. The Court ultimately applied a form of

11

rational basis review to the law, finding that the law could not “be considered rational

12

unless it furthers some substantial goal of the State.” Id. at 224.

Nor is

13

This language of furthering “some substantial goal” is different from traditional

14

rational basis review, under which a court “will uphold the legislative classification so

15

long as it bears a rational relationship to some legitimate end.” Romer v. Evans, 517 U.S.

16

620, 631 (1996). Plaintiffs argue that this “substantial goal” test should apply here. The

17

Court disagrees. Plyler’s holding was expressly grounded on the unique vulnerability of

18

children and the importance of education. The Court emphasized that the Texas law was

19

“directed against children, and imposes its discriminatory burden on the basis of a legal

20

characteristic over which children can have little control.” Plyler, 457 U.S. at 220. The

21

Court contrasted this with the situation of adult unauthorized aliens, whose presence is

22

“the product of conscious, indeed unlawful, action.” Id. Because the present case does

23

not involve children and public education, the Court finds that a heightened scrutiny is

24

not appropriate.

25

b.

Rigorous Rational Basis Review.

26

Alternatively, Plaintiffs argue that a more “active” form of rational basis review is

27

required because the identity theft laws are motivated by animus or the desire to punish a

28

politically unpopular group. See Doc. 83 at 31. Ordinarily, courts apply rational basis

- 34 -

1

review in a highly deferential manner, upholding the challenged law “‘if there is any

2

reasonably conceivable state of facts that could provide a rational basis for the

3

classification.’”

4

Commc’ns, Inc., 508 U.S. 307, 313 (1993)).

5

legislative policy decisions” and a reluctance of courts “to judge the wisdom, fairness,

6

logic or desirability of those choices.” LeClerc v. Webb, 419 F.3d 405, 421 (5th Cir.

7

2005). But “even the standard of rationality . . . must find some footing in the realities of

8

the subject addressed by the legislation.” Heller, 509 U.S. at 321 (1993).

Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v. Beach
This approach reflects “deference to

9

Some cases, however, have applied a more rigorous form of rational basis review.

10

See, e.g., United States v. Windsor, 133 S. Ct. 2675 (2013); Romer v. Evans, 517 U.S.

11

620 (1996); Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); U.S. Dep’t of

12

Agric. v. Moreno, 413 U.S. 528 (1973); Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).

13

These cases involve laws motivated by “an improper animus” towards a politically

14

unpopular group. See, e.g., Windsor, 133 S. Ct. at 2693. When a law disadvantages an

15

unpopular group, there arises an “inference that the disadvantage imposed is born of

16

animosity toward the class of persons affected.” Romer, 517 U.S. at 634. This inference

17

cannot be overcome by any conceivable rational basis for the law. See Cleburne, 473

18

U.S. at 447-50. Rather, the state must demonstrate that the actual reason for the law was

19

not a desire to discriminate. See Romer, 517 U.S. at 634. If a court finds that the only

20

actual reason for the law is a desire to discriminate, the court will invalidate the law,

21

relying on the maxim that “a bare congressional desire to harm a politically unpopular

22

group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534;

23

see also Windsor, 133 S. Ct. at 2693 (finding that laws may not exist to “impose a

24

disadvantage, a separate status, and so a stigma upon” those of a particular class).

25

Plaintiffs allege that the identity theft laws are animated by an improper animus

26

towards unauthorized aliens.

Plaintiffs cite numerous statements by legislators that

27

allegedly show hostility towards this group. See, e.g., Doc. 23, ¶ 56 (state representative

28

urging members not to stand back “while we wait the destruction of our country” and

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1

“the destruction of neighborhoods” by illegal aliens); ¶ 64 (state senator saying he wanted

2

to make sure workers would be charged with a serious enough crime to guarantee they

3

“stay in jail” while the case is pending and then be immediately deported). Plaintiffs

4

allege that unauthorized aliens are a politically unpopular group that has been subjected

5

to frequent discrimination in Arizona.

6

The Court is unsure whether rigorous rational basis review applies to this case.

7

The cases applying rigorous rational basis review involved the denial of government

8

benefits, not the imposition of criminal penalties for clearly criminal conduct. See, e.g.,

9

Windsor, 133 S. Ct. at 2683 (surviving spouse of same-sex couple challenged a denial of

10

the spousal deduction tax benefit); Cleburne, 473 U.S. at 435-36 (challenge to a zoning

11

ordinance requiring a special use permit for houses for the mentally retarded); Moreno,

12

413 U.S. at 529-30 (challenge to a Food Stamp Act amendment that rendered ineligible

13

for certain benefits households containing unrelated persons). In addition, those cases

14

involved laws that disadvantaged otherwise law-abiding citizens, not persons who are

15

unlawfully present in the country and engaged in fraudulent activity. Because the case

16

law requires a more rigorous review when an improper animus is alleged, Plaintiffs have

17

alleged that the identity theft laws are the fruit of animus towards unauthorized aliens,

18

and this issue may be more fully illuminated at the summary judgment stage, the Court

19

will assume for purposes of the motion to dismiss that rigorous rational basis review

20

applies.13
3.

21

Application.

22

Plaintiffs claim that the only actual reason for the identity theft laws was to punish

23

or harm a politically unpopular group – unauthorized aliens. See Doc. 83 at 31-34. They

24
13

25
26
27
28

The Court finds rigorous rational basis review to be problematic. The rational
basis test has long been viewed as reflecting the deference courts should afford to the
policy-making branches of government. The Court also finds this more rigorous rational
basis review, with its lack of guiding principles, to be dangerously susceptible to
invoking a judge’s own policy preferences. These concerns notwithstanding, the Supreme
Court and Ninth Circuit plainly have applied a more active rational basis review in some
cases, and those cases constitute precedent binding on this Court. See Ariz. Dream Act
Coal. v. Brewer, 945 F. Supp. 2d 1049, 1069 (D. Ariz. 2013), rev’d on other grounds,
757 F.3d 1053 (9th Cir. 2014).
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1

also argue that the identity theft laws “were not intended to address identifiable criminal

2

harms separate from the immigration issue.” Doc. 83 at 34; see Doc. 23, ¶ 65. Courts

3

have been reluctant to find that facially neutral criminal laws violate the Equal Protection

4

Clause.

5

difference in punishment for crack cocaine offenses and simple powder cocaine offenses

6

violates equal protection. See United States v. Singleterry, 29 F.3d 733, 740-41 (1st Cir.

7

1994); United States v. Thompson, 27 F.3d 671, 678 (D.C. Cir. 1994) (collecting cases);

8

United States v. Haynes, 985 F.2d 65, 70 (2d Cir. 1993). Plaintiffs in those cases argued

9

that the difference was irrational and had a disparate impact on African-Americans, who

10

are more likely to use crack cocaine than Caucasians. See Singleterry, 29 F.3d at 740-41.

11

Here also, Plaintiffs argue that criminalizing the act of identity theft done “with

12

the intent to obtain or continue employment” will have a disparate impact on

13

unauthorized aliens. The difference, however, is that Plaintiffs have alleged that the

14

Arizona Legislature intended the disparate impact on unauthorized aliens, an allegation

15

that must be taken as true at this stage of the litigation. And the Court assumes for

16

purposes of this motion that a more rigorous rational basis review will apply – more

17

rigorous than the crack cocaine cases. See, e.g., United States v. Cyrus, 890 F.2d 1245,

18

1248 (D.C. Cir. 1989). Applying this standard of review, the Court cannot conclude that

19

Plaintiffs’ equal protection claim should be dismissed for failure to state a claim. See

20

Moreno, 413 U.S. at 534.

For example, numerous cases have rejected the argument that the stark

21

Defendant Montgomery argues that he does not apply the identity theft laws in a

22

discriminatory manner and his actions therefore do not deny equal protection. Doc. 55 at

23

21-22. This argument misses the point. Plaintiffs attack the laws he is applying, not his

24

office’s prosecutorial decisions. If the identity theft laws are facially invalid because they

25

deny equal protection, the Court may enjoin him from enforcing those laws. The Court,

26

therefore, denies Defendants’ motions to dismiss Plaintiffs’ equal protection claim.14

27
14

28

Defendant Arpaio argues that Plaintiffs have failed to state a claim under 42
U.S.C. § 1983. See Doc. 53 at 12-13. To state a claim under § 1983, Plaintiffs must
plausibly claim that Defendants (1) acted under the color of state law (2) to deprive
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1

B.

Maricopa County’s Liability Under § 1983.

2

Defendants argue that Maricopa County is not a proper defendant under § 1983

3

because (1) Sheriff Arpaio and County Attorney Montgomery are not final policymakers

4

for the County; (2) the County does not enforce the identity theft laws; and (3) Maricopa

5

County would be unable to legally comply with any injunctive relief the Court might

6

grant. Doc. 55 at 13-18. Plaintiffs counter that Maricopa County is liable because

7

Sheriff Arpaio is a final policymaker and the County finances the enforcement of the

8

identity theft laws through tax revenues. Doc. 83 at 23-25.

9

Under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691-94 (1978),

10

municipal liability attaches when a plaintiff’s alleged constitutional deprivation was the

11

product of a policy or custom of the local government. See also Fogel v. Collins, 531

12

F.3d 824, 834 (9th Cir. 2008). “For purposes of liability under Monell, a policy is a

13

deliberate choice to follow a course of action . . . made from among various alternatives

14

by the official or officials responsible for establishing final policy with respect to the

15

subject matter in question.” Id. (quoting Fairley v. Luman, 281 F.3d 913, 918 (9th Cir.

16

2002) (per curiam)) (internal quotations omitted). A municipal policy may include the

17

decision to enforce a state law. Evers v. Custer Cnty., 745 F.2d 1196, 1203-04 (9th Cir.

18

1984). Whether a state official is a final policy maker for purposes of municipal liability

19

is a question of state law. See Streit v. County of Los Angeles, 236 F.3d 552, 560 (9th

20

Cir. 2001). When determining whether an individual has final policymaking authority,

21

courts ask whether the individual at issue has authority “in a particular area, or on a

22

particular issue.” McMillian v. Monroe County, 520 U.S. 781, 785 (1997).

23

The Arizona Constitution creates the elected office of sheriff for each county and

24

provides that the sheriff’s duties and powers “shall be as prescribed by law.” Ariz. Const.

25

art. XII, §§ 3-4. Under A.R.S. § 11-441, the sheriff is empowered to “[a]rrest and take

26
27
28

Plaintiffs of a constitutional right. Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th
Cir. 2009). Based on the foregoing analysis, Plaintiffs have stated a claim under § 1983.
Plaintiffs have plausibly alleged that Defendants are enforcing a law that violates the
Equal Protection Clause.
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1

before the nearest magistrate for examination all persons who attempt to commit or who

2

have committed a public offense.” Id. “The purpose of this duty is the prompt and

3

orderly administration of criminal justice, including the Sheriff’s discretionary

4

investigatory determination of when enough evidence has been obtained to make an

5

arrest.” Guillory v. Greenlee Cnty., No. CV05-352-TUC-DCB, 2006 WL 2816600, at *4

6

(D. Ariz. Sept. 28, 2006). Under A.R.S. § 11-444, the local county is responsible for

7

paying the “actual and necessary expenses incurred by the sheriff in pursuit of criminals”

8

as well as additional expenses.

9

These provisions make Sheriff Arpaio a final policymaker for Maricopa County.

10

Unlike in McMillian, where the court found that the sheriff was a state but not a county

11

officer, Arizona law designates the sheriff as a county officer. See McMillian, 520 U.S.

12

at 788-89; see also A.R.S. § 11-401 (listing the sheriff as an officer of the county). The

13

Sheriff’s responsibility for criminal law enforcement makes him a person “whose edicts

14

or acts . . . may fairly be said to represent official policy[.]” Monell, 436 U.S. at 694.

15

Sheriff Arpaio’s decision to enforce the identity theft laws, therefore, makes Maricopa

16

County liable for that action. See Evers, 745 F.2d at 1203-04.

17

Defendants argue that Maricopa County’s lack of control over Sheriff Arpaio’s

18

law-enforcement decisions shows that he is not a final policymaker for the County. See

19

Doc. 118 at 16-19. But the Arizona Court of Appeals has held that the Sheriff is the final

20

policymaker for the County on matters of jail management, Flanders v. Maricopa Cnty.,

21

54 P.3d 837, 847 (Ariz. Ct. App. 2002), and the County has not explained, nor can the

22

Court discern, how the County has more control over the Sheriff’s jail-management

23

decisions than over his law-enforcement decisions. Flanders compels the conclusion that

24

Sheriff Arpaio is the final policymaker for the County on law-enforcement matters.

25

Furthermore, every district court to address this issue has held that Arizona counties are

26

liable for law-enforcement decisions of local sheriffs. See United States v. Maricopa

27

Cnty., 915 F. Supp. 2d 1073, 1083-84 (D. Ariz. 2012); Ortega Melendres v. Arpaio, 598

28

F. Supp. 2d 1025, 1038-39 (D. Ariz. 2009); Guillory, 2006 WL 2816600, at *3-5.

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1

Maricopa County argues that its presence in this case could result in it being

2

“bound by an injunction that is not within its authority to comply with under Arizona

3

law.” Doc. 55 at 17. The County emphasizes that Arizona law gives it no control over

4

criminal law enforcement. Id. at 14 (citing A.R.S. § 11-251). This fact might limit the

5

County’s exposure to contempt or other remedies if an injunction is disregarded, but it

6

does not alter the fact that the County is a proper defendant under Monell. Due to this

7

finding, the Court need not decide whether County Attorney Montgomery is also an

8

official policymaker for the County.

9

C.

Rule 8 and Motions to Strike.

10

Defendants ask the Court to dismiss Plaintiffs’ complaint for failing to comply

11

with Rule 8. Doc. 53 at 17; Doc. 55 at 6-7. The rule requires that a complaint contain “a

12

short and plain statement of the claim,” and that each “allegation be simple, concise, and

13

direct.” Fed.R.Civ.P. 8(a)(2) & 8(d)(1). Defendants argue that the complaint violates the

14

rule because it “contains paragraph after paragraph of vague, conclusory and

15

disconnected allegations, unduly prejudicing [Defendants] by foreclosing reasonable

16

notice and fair opportunity to respond and raising the specter of unnecessary discovery.”

17

Doc. 55 at 7. The Court disagrees.

18

The Ninth Circuit has held that “verbosity or length is not by itself a basis for

19

dismissing a complaint based on Rule 8(a).” Hearns v. San Bernardino Police Dept., 530

20

F.3d 1124, 1131 (9th Cir. 2008) (citations omitted); but see Cafasso, U.S. ex rel. v. Gen.

21

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (affirming dismissal of a

22

733-page complaint as prejudicial and showing bad faith). To qualify for dismissal, the

23

complaint must be so complex or confusing that a defendant could not readily discern the

24

allegations being made against him. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1178

25

(9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).

26

Plaintiffs’ complaint contains 34 pages and 192 paragraphs. The complaint may

27

be long, but it is not so complex or confusing that Defendants are unable to discern the

28

allegations made against them. From its beginning, the complaint makes clear that this

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1

case is about the constitutionality of the identity theft laws under the Supremacy and

2

Equal Protection Clauses. Doc. 23, ¶ 5. The complaint delineates the parties and their

3

interests in the case. Id., ¶¶ 9-16. It contains factual allegations that, although more

4

extensive than necessary, give substance to Plaintiffs’ claims. Id., ¶¶ 17-168. The

5

complaint also clearly states the requested forms of relief. Id., ¶¶ 180-92. This is not a

6

case where “one cannot determine from the complaint who is being sued, for what relief,

7

and on what theory, with enough detail to guide discovery.” McHenry, 84 F.3d at 1178.

8

Defendants have also move to strike numerous portions of the complaint. Doc. 53

9

at 18-25; Doc. 55 at 7-13. Under Rule 12(f), the “court may strike from a pleading an

10

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

11

Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored, as they involve a drastic

12

remedy and may be used as a “dilatory or harassing tactic.” 5C C. Wright, A. Miller, et

13

al., Federal Practice & Procedure § 1380 (3d ed.1998); see also Torres v. Goddard, No.

14

CV–06–2482–PHX–SMM, 2008 WL 1817994, at *1 (D. Ariz. Apr. 22, 2008).

15

Defendants argue that dozens of paragraphs from the complaint are infirm for a variety of

16

reasons. They argue that specified paragraphs contain argumentative and inflammatory

17

allegations, immaterial and impertinent legislative history, vague and confusing

18

statements, as well as other problems. Defendants essentially invite the Court to place

19

the complaint under a microscope and assess whether each statement is pertinent to this

20

case. The Court declines the invitation. A party’s “assertions in its pleadings are not

21

evidence.” United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). The Court

22

will deny Defendants’ motions to strike.15

23

V.

Motions to Supplement.

24

Plaintiffs and Defendants have filed motions for leave to file supplemental

25

declarations, evidentiary records, responses, and surreplies. Docs. 84, 98, 103, 123.

26
15

27
28

As a separate argument, Defendant Arpaio asks the Court to strike paragraphs in
the complaint that contain allegations regarding the MCSO because the MCSO is a
“nonjural” entity. Doc. 53 at 16. The MCSO, however, is not named as a defendant in
the complaint. See Doc. 23. The allegations regarding the MCSO are relevant to
Plaintiffs’ claims against Defendant Arpaio.
- 41 -

1

Given the accelerated nature of the proceedings in this case, the importance of the issues,

2

and the lack of opposition to the motions, the Court will grant the motions. The Court

3

has read and considered the supplemental documents in rendering its decision.

4

IT IS ORDERED:

5

1.

Plaintiffs’ motion for a preliminary injunction (Doc. 30) is granted. Until

6

further order of the Court, Defendants are enjoined from enforcing A.R.S. §

7

2009(A)(3) and the portion of A.R.S. § 13-2008(A) that addresses actions

8

committed “with the intent to obtain or continue employment.”

9

2.

Defendants’ motions to dismiss and strike (Docs. 53, 55, 127) are denied.

10

3.

Parties’ motions to supplement (Docs. 84, 98, 103, 123) are granted.

11

Dated this 5th day of January, 2015.

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