Puente Arizona et al v. Arpaio et al

Filing 623

ORDER - 1. Plaintiff's motion for summary judgment (Doc. 538 ) is granted with respect to preemption of Defendants' use of the Form I-9 and attached documents, and otherwise denied. 2. Defendant State of Arizona's motion for summary judgment (Doc. 510 ) is denied with respect to preemption of Defendants' use of the Form I-9 and attached documents, granted with respect to Plaintiffs' other preemption claims, and granted with respect to Plaintiffs' equal protecti on claims. 3. Defendant Montgomery's motion for summary judgment (Doc. 534 ) is denied with respect to preemption of Defendants use of the Form I-9 and attached documents, granted with respect to Plaintiffs' other preemption claims, and granted with respect to Plaintiffs' equal protection claims. 4. Defendant Arpaio's motion for summary judgment (Doc. 525 ) is denied with respect to preemption of Defendants use of the Form I-9 and attached documents, granted with respect to Plaintiffs' other preemption claims, and granted with respect to Plaintiffs' equal protection claims. 5. Defendant Maricopa Countys motion for summary judgment on Monell liability (Doc. 511 ) is denied with respect to Defendant Arpaio and granted with respect to Defendant Montgomery. 6. The motion for leave to file excess pages (Docs. 543 ) is granted. 7. Plaintiffs shall file a memorandum on the appropriate remedy in this case, not to exceed 15 pages, on or before December 7, 2016. Defendants shall file a joint reply, not to exceed 15 pages, on or before December 21, 2016. Plaintiffs shall file a 7 page reply on or before January 4, 2017. (See document for further details). Signed by Judge David G Campbell on 11/22/16. (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 Arizona statutes that criminalize the

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act of identity theft when done with the intent to obtain or continue employment, and a

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general Arizona statute that makes it a crime to commit forgery. Plaintiffs argue that

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these three statutes are preempted when applied to unauthorized aliens who commit fraud

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in the federal employment verification process or to show authorization to work under

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federal immigration law. Plaintiffs also claim that the two identity theft statutes were

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enacted with the purpose of discriminating against unauthorized aliens and are facially

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invalid under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs seek

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declaratory and injunctive relief.

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The Parties have filed motions for summary judgment, and the Court heard oral

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arguments on October 13, 2016. For the reasons set forth below, the Court will grant in

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part Plaintiffs’ motion for summary judgment on the preemption claim, grant in part

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Defendants’ motion for summary judgment on the preemption claim, and grant

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Defendants’ motion for summary judgment on the equal protection claim.

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I.

Background.

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For purposes of this order, the Court will refer to those who are in the United

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States without legal authorization as “unauthorized aliens.” Plaintiffs consist of two

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unauthorized aliens who have been convicted of identity theft felonies in Arizona for

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using false names to obtain employment; Puente, an organization formed to protect and

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promote the interests of unauthorized aliens and their families; and several residents of

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Maricopa County who object to the use of their tax dollars to prosecute unauthorized

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aliens for identity theft or forgery in the employment context. Defendants are the State of

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Arizona, Maricopa County, Maricopa County Sheriff Joseph Arpaio, and Maricopa

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County Attorney Bill Montgomery.

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The Court will begin by describing relevant federal laws and regulations on the

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employment of unauthorized aliens, and then will describe the Arizona laws challenged

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by Plaintiffs and the prior proceedings in this case.

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A.

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In 1986, Congress passed the Immigration Reform and Control Act (“IRCA”).

Federal Regulation of Unauthorized Alien Employment.

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Pub. L. No. 99-603 (S. 1200).

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employment of unauthorized aliens and created a national system for verifying whether

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prospective employees were authorized to work in this Country. Id. § 101. The new

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system required employers to verify the identity and work authorization of persons they

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intend to hire. Id. Congress instructed the Attorney General to create a form on which an

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employer would attest, under penalty of perjury, that it had verified that an employee was

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authorized to work. Id. The prospective employee was also required to swear that he or

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she is a United States citizen or an alien lawfully authorized to obtain employment in the

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United States. Id.

Among other provisions, the IRCA prohibited the

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Following the passage of the IRCA, the Attorney General enacted regulations to

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implement the employment verification system. 8 C.F.R. § 274a.2. These regulations

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create the Form I-9 to be used in the verification process. Section 1 of the Form I-9

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requires the employee to provide his or her name, address, date of birth, and social

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security number, and to swear under penalty of perjury that he or she is a citizen or

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national of the United States, a lawful permanent resident alien, or an alien authorized to

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work in the United States. In section 2, the employer identifies documents reviewed by

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the employer to verify the employee’s identity and work authorization. The regulations

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identify specific documents, referred to as “List A” documents, that can be used to show

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both identity and authorization to work, such as U.S. passports, permanent resident alien

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cards, or federal employment authorization documents. “List B” documents can be used

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to show identity, and include items such as driver’s licenses or state, federal, or school ID

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cards. “List C” documents can be used to show employment authorization, and include

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social security cards and other specific federally- or tribally-issued documents. 8 C.F.R.

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§ 274a.2(b)(1)(v). A prospective employee must show the employer either a List A

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document or a combination of List B and List C documents.

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After the employer verifies the employee’s identity and authorization to work and

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the Form I-9 is completed, the employer is required to maintain the form and any copies

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it made of documents provided by the employee. The Form I-9 is not submitted to the

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government. The intent is for employees to prove their identity and authorization to

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work, and for employers to confirm these facts and then retain a copy of the Form I-9 as

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proof the process was completed.1

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The IRCA established criminal penalties for employers who fail to follow the

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Form I-9 process. Pub. L. No. 99–603 (S 1200) § 101 (codified at 8 U.S.C. § 1324a(f)).

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It also imposed criminal penalties on persons who knowingly forge, counterfeit, or alter

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any of the documents prescribed for proof of identity or employment authorization. Id.

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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 required the
Attorney General to provide for the operation of three pilot programs related to the
federal employment verification system. Pub. L. No. 104–208 (HR 3610), §§ 401–405.
One of these programs, originally titled the Basic Pilot Program but now referred to as
the E-Verify System, is still in operation today. The E-Verify System is an alternative to
the Form I-9 process and is an internet-based program through which an employer can
verify the work authorization of a prospective employee. Use of the system is voluntary.
Pub. L. No. 104–208 (HR 3610), § 402. The E-Verify system is not at issue in this case.

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§ 103 (codified at 18 U.S.C. § 1546). The IRCA also imposed criminal penalties on

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persons who knowingly use a false identification document to satisfy any requirement of

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the I-9 process. Id.

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Four years after the enactment of the IRCA, Congress passed the Immigration Act

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of 1990. Pub. L. 101-649. This statute added a range of civil penalties for fraud

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committed by employees in the Form I-9 process. Id (codified at 8 U.S.C. § 1324c).

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Congress has also enacted various immigration penalties for fraud committed to satisfy

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the federal employment verification system. See 8 U.S.C. §§ 1182(a)(6)(c), 1227(a)(3),

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1255(c). These criminal, civil, and immigration provisions will be discussed in greater

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detail below.

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B.

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This case concerns three Arizona laws: two identity theft statutes passed in 1996

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and 2005, and then amended in 2007 and 2008 to apply specifically to the use of false

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identities to obtain employment, and a general forgery statute passed in 1977. As the

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nature, history, and application of these laws are important to the issues addressed below,

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the Court will describe them in some detail.

Arizona Laws.

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In July 1996, Arizona became the first state in the country to pass legislation

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making identity theft a felony. S. Rep. No. 105-274, at 6 (1998). This statute, now

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codified at A.R.S. § 13-2008, made it a crime to “knowingly take[] the name, birth date

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or social security number of another person, without the consent of that person, with the

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intent to obtain or use the other person’s identity for any unlawful purpose or to cause

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financial loss to the other person.” 1996 Ariz. Legis. Serv. Ch. 205 (H.B. 2090) (West).

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The statute has been amended several times to expand the definition of identity theft.

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See, e.g., 2000 Ariz. Legis. Serv. Ch. 189 (H.B. 2428) (West) (broadening the statute to

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cover “any personal identifying information” of another person).

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In 2005, Arizona passed legislation creating a new crime of aggravated identity

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theft. 2005 Ariz. Legis. Serv. Ch. 190 (S.B. 1058) (West). This statute, codified at

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A.R.S. § 13-2009, designated identity theft as aggravated if it causes another to suffer an

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economic loss of $1,000 or more, or if it involves stealing the identities of three or more

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persons.

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Plaintiffs’ claims focus on later amendments to § 13-2008 and § 13-2009 that

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added specific language covering identity theft committed to obtain or continue

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employment. The first amendment was passed in 2007 as part of H.B. 2779, known as

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the “Legal Arizona Workers Act.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West).

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H.B. 2779 created a new statute – A.R.S. § 13-212 – which prohibits employers from

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hiring unauthorized aliens and threatens the suspension of their business licenses if they

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fail to comply.2 H.B. 2779 also amended the aggravated identity theft statute that had

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been passed in 2005. Under the amended statute, a person commits aggravated identity

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theft by knowingly taking the identity of “[a]nother person, including a real or fictitious

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person, with the intent to obtain employment.” A.R.S. § 13-2009(a)(3).

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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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several statutes relating to the employment of unauthorized aliens. The bill also amended

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§ 13-2008(A) – originally passed in 1996 – to make clear that identity theft is a crime

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

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Throughout the remainder of this order, the Court will refer to the 2007 and 2008

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amendments – which are the legislative acts specifically challenged by Plaintiffs – simply

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as “the identity theft statutes.”

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This Court and the Ninth Circuit have recognized in previous rulings in this case

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that the 2007-2008 legislative history of the identity theft statutes reflects “an intent on

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the part of Arizona legislators to prevent unauthorized aliens from coming to and

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remaining in the state.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1102 (9th Cir. 2016);

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Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 855 (D. Ariz. 2015). Plaintiffs identify

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numerous statements by Arizona lawmakers expressing an intent to target unauthorized

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aliens and affect immigration with both bills. Doc. 621 at 4-8; Doc. 538 at 17-18; Doc.

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The Supreme Court found this statute to be constitutional in Chamber of Commerce of
U.S. v. Whiting, 563 U.S. 582 (2011).
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575 at 16-21. For example, one of H.B. 2779’s sponsors, Representative Barnes, stated

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that the bill was “meant to address the illegal immigration problem.” Doc. 575 at 16.

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Senator Pearce, another sponsor of both bills, stated during a hearing on H.B. 2779 that

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Arizona needed to do more to stop illegal immigration and that “attrition starts through

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enforcement.” Doc. 621 at 5. Representatives Burns and O’Halloran expressed support

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for the bills because they would take a tough stance on immigration and ensure that

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unauthorized aliens would not become citizens. Doc. 575 at 18. When signing H.B.

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2779 into law, Governor Napolitano noted that a “state like Arizona [has] no choice but

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to take strong action to discourage the further flow of illegal immigration through our

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borders.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West). In addition, H.B. 2779

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and H.B. 2745 were among dozens of Arizona bills introduced during the same time

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period which focused on unauthorized aliens. Doc. 575 at 19-20.

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Defendants do not offer any contrary legislative history, but instead argue that the

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statements cited by Plaintiffs are immaterial to their claims (Doc. 573 at 6-9), and that

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“state legislative intent is irrelevant to the issue of preemption.”

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Defendants also argue that because H.B. 2779 and H.B. 2745 contain multiple provisions,

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the legislative history cited by Plaintiffs cannot be linked specifically to the identity theft

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statutes. Doc. 604 at 11. The Court has already rejected this argument, finding that the

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2007 and 2008 amendments were intended – at least in part – to target unauthorized

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aliens and influence illegal immigration. Puente, 76 F. Supp. 3d at 856-57.

Doc. 510 at 16.

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In addition to challenging the identity theft statutes, Plaintiffs’ amended complaint

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includes a preemption challenge to the general forgery statute, A.R.S. § 13-2002, as

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applied to unauthorized aliens seeking employment.

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originally enacted in 1977, and provides that a person “commits forgery if, with intent to

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defraud,” the person “[o]ffers or presents, whether accepted or not, a forged instrument or

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one that contains false information.” A.R.S. § 13-2002(A)(3). This statute does not

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specifically mention employment, but Defendants do not dispute that it has been applied

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to unauthorized aliens who commit forgery in the employment context. Doc. 534 at 19.

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Doc. 191.

This statute was

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C.

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On January 5, 2015, this Court preliminarily enjoined enforcement of the identity

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theft statutes – § 13-2009(A)(3) and the portion of § 13-2008(A) that addresses actions

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committed with the intent to obtain or continue employment – finding that Plaintiffs were

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likely to prevail on their claim that these provisions are facially preempted under the

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Supremacy Clause.

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legislative history of these provisions, finding “a primary purpose and effect . . . to

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impose criminal penalties on unauthorized aliens” and “regulate unauthorized aliens who

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seek employment.” Id. at 855. Because Congress has comprehensively regulated the

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field of unauthorized alien employment, the Court concluded that the statutes were likely

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invalid under both field and conflict preemption. Id. at 856-58.

History of This Case.

Puente, 76 F. Supp. 3d at 842. The Court relied heavily on the

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On appeal, the Ninth Circuit agreed with the Court’s characterization of the

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purpose of the identity theft statutes, but concluded that Plaintiffs’ facial preemption

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challenge would fail on the merits because the statutes could also be applied to citizens or

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lawful resident aliens and therefore could be enforced “in ways that do not implicate

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federal immigration priorities.”

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explained:

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Puente, 821 F.3d at 1108.

The Court of Appeals

[T]he identity theft laws are textually neutral – that is, they apply to
unauthorized aliens, authorized aliens, and U.S. citizens alike. . . . The key
point is this: one could not tell that the identity theft laws undermine federal
immigration policy by looking at the text itself. Only when studying certain
applications of the laws do immigration conflicts arise.
Id. at 1105. The court vacated the preliminary injunction and remanded for consideration
of Plaintiffs’ as-applied challenge. Id. at 1110.
The Ninth Circuit also held that a presumption against preemption applies in this
case because the challenged identity theft laws “regulate for the health and safety of the
people of Arizona.” Id. at 1104. “Therefore, only if Congress’s intent to preempt the
challenged state statute is ‘clear and manifest’ may we deem the statute preempted.” Id.
More will be said about this presumption below.
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D.

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The parties have completed discovery and filed cross motions for summary

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judgment on Plaintiffs’ as-applied preemption claim. Defendants have also moved for

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summary judgment on Plaintiffs’ equal protection claim, and Defendant Maricopa

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County seeks summary judgment on its liability for the conduct of Sheriff Joseph Arpaio

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and County Attorney Bill Montgomery. Docs. 510, 511, 525, 534. After setting forth the

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relevant legal standard for summary judgment, the Court will address preemption, equal

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protection, and the County’s liability.

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II.

Current Procedural Setting.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322.

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III.

Preemption.

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A.

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“The Supremacy Clause provides a clear rule that federal law ‘shall be the

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supreme Law of the Land; and the Judges in every State shall be bound thereby, anything

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in the Constitution or Laws of any State to the Contrary notwithstanding.’” Arizona

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United States, 132 S.Ct. 2492, 2500 (2012) (quoting U.S. Const. art. VI, cl. 2). Under

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this clause, “Congress has the power to preempt state law.” Crosby v. Nat’l Foreign

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Trade Council, 530 U.S. 363, 372, (2000). In determining whether Congress has in fact

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preempted a state law, “‘the purpose of Congress is the ultimate touchstone.’” Wyeth v.

Basic Preemption Principles.

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Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485,

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(1996)).

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The preemption doctrine consists of three well-recognized classes: express, field,

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and conflict preemption. Arizona, 132 S.Ct. at 2500-01. Express preemption occurs

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when Congress “withdraw[s] specified powers from the States by enacting a statute

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containing an express preemption provision.” Id. (citing Whiting, 131 S.Ct. at 1974-75).

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Field preemption precludes states “from regulating conduct in a field that Congress,

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

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governance.” Id. at 2501 (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,

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115 (1992)). Conflict preemption occurs “where ‘compliance with both federal and state

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regulations is a physical impossibility,’ Florida Lime & Avocado Growers, Inc. v. Paul,

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373 U.S. 132, 142-43 (1963), and in those instances where the challenged state law

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‘stands as an obstacle to the accomplishment and execution of the full purposes and

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objectives of Congress,’ Hines [v. Davidowitz ], 312 U.S. [52,] 67, (1941).” Id.

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As noted by the Ninth Circuit in this case, the Court begins with a presumption

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that application of the identity theft and forgery statutes to unauthorized aliens is not

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preempted. Puente, 821 F.3d at 1104. The Supreme Court has long held that “courts

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should assume that ‘the historic police powers of the States’ are not superseded ‘unless

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that was the clear and manifest purpose of Congress.’” Arizona v. United States, 132

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S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see

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also Wyeth, 555 U.S. at 565.

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This case clearly implicates historic police powers. As already noted, § 13-2008

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was the first identity theft statute passed by a state in the United States. More than a

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decade later, “[b]etween 2006 and 2008, Arizona had the highest per-capita identity theft

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rates in the nation, and one third of all identity theft complaints in the state involved

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employment-related fraud.”

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contradiction from Plaintiffs, that some 860,000 identity thefts and 270,000 cases of

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personal information theft occur annually in Arizona. Doc. 584, ¶ 6. Defendants’ expert,

Puente, 821 F.3d at 1002.

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Defendants assert, without

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Dr. Cohen, found that Arizona residents are 2.5 times more likely to be victims of

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identity theft than average Americans, and that Arizona residents incur between $2.8 and

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$5.1 billion in annual costs from identity theft. Id., ¶ 13.

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Protecting residents against fraud, including fraud committed in the employment

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context, plainly falls within the historic police powers of the State. To overcome the

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resulting presumption against preemption, therefore, Plaintiffs must show that

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“Congress’s intent to preempt the challenged state statutes is ‘clear and manifest.’”

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Puente, 821 F.3d at 1104. In addition, as the Supreme Court has said, laws within the

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historic police powers of the states “must do ‘major damage’ to ‘clear and substantial’

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federal interests before the Supremacy Clause will demand that [they] be overridden[.]”

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Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013) (quoting Hisquierdo v. Hisquierdo, 439

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U.S. 572, 58 (1979)).

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B.

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Plaintiffs assert that Congress intended to preempt Arizona from applying its

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identity theft and forgery statutes to unauthorized aliens who commit fraud in obtaining

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employment. Plaintiffs do not claim that the laws have been applied unjustly to innocent

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unauthorized aliens. Rather, they argue that aliens who actually steal the identity of

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another to obtain employment cannot be prosecuted under the Arizona laws.

As-Applied Preemption.

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As the Ninth Circuit has emphasized, factual findings are very important in as-

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applied preemption analysis. Puente, 821 F.3d at 1105. If the as-applied challenge

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succeeds, the Arizona identity theft statutes will not be found invalid in their entirety, but

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only as applied to employment-related fraud committed by unauthorized aliens.

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The Supreme Court has explained that in “assessing the impact of a state law on

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the federal scheme, we have refused to rely solely on the legislature’s professed purpose

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and have looked as well to the effects of the law.” Gade, 505 U.S. at 105. The Ninth

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Circuit also noted that Arizona’s purpose behind the challenged statutes is relevant but

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not sufficient to establish preemption. Puente, 821 F.3d at 1106 n.8. Citing Gade and

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similar cases, Defendants suggest that the Court’s as-applied analysis must focus on the

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practical effect of the statutes’ application. Plaintiffs disagree, arguing that the court

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must instead “determine whether a state or local policy poses an obstacle to the

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accomplishment and execution of the full purposes and objectives of Congress . . . [by]

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evaluat[ing] not only its formal terms, but practical result.” Doc. 606 at 16 (emphasis

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added). The Court sees no meaningful distinction between the “practical effect” and

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“practical result” of the statutes’ application. By either name, the Court must determine

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whether the challenged application conflicts with a federal scheme enacted by Congress

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or intrudes on a field fully occupied by Congress. The touchstone remains the intent of

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Congress, but with the presumption against preemption firmly in mind.

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C.

Relevant Facts.
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Maricopa County Attorney’s Office.

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Between 2005 and 2015, a high majority of those prosecuted by the Maricopa

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County Attorney’s Office (“MCAO”) under the Arizona identity theft and forgery laws

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were unauthorized aliens. Doc. 621-21 at 11; Doc. 538 at 27. During this period, MCAO

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filed employment-related identity theft or forgery charges against 1,390 persons. Of

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these, 90% were designated as unauthorized aliens, 3% were designated as not

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unauthorized aliens, and 7% had unknown alien status. Doc. 584-1, ¶ 122. Both sides

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agree, however, that the evidence does not show that this rate of prosecution is out of

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proportion to the rate at which unauthorized aliens commit identity theft or forgery in the

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employment context.

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employment, both sides find it obvious that unauthorized aliens working in the United

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States use false identifications to obtain employment. Doc. 538 at 20; Doc. 573 at 17;

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Doc. 606 at 17 n.12.

Doc. 589 at 54.

Rather, because federal law prohibits their

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Between 2005 and 2015, approximately 23 different law enforcement agencies in

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Maricopa County submitted identity theft cases to MCAO for prosecution. Doc. 534 at

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18. Of the 1,353 cases for which charging documents were available, approximately 90

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percent relied on documents other than the Form I-9. Id. at 24. Thus, it appears that

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about 10 percent of MCAO prosecutions for identity theft or forgery involved charges

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based at least in part on the Form I-9. Doc. 589 at 48. Apparently because he realized

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that the IRCA includes a ban on state use of such documents (as discussed below),

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Defendant Montgomery formally revised the MCAO’s written policy on September 17,

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2014, to prohibit reliance on the Form I-9 as evidence in trial or for charging purposes.

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Id., ¶ 74; Doc. 538 at 29. Other documents relied on by MCAO in identity theft and

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forgery cases include false federal tax withholding forms (W-4), state tax withholding

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forms (A-4), job applications, social security cards, state identification cards, driver’s

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licenses, and federal tax reporting forms (W-2). Doc. 584, ¶ 60; Doc. 589 at 40.

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2.

Maricopa County Sheriff’s Office.

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Defendant Arpaio acknowledges that a majority of those referred by law

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enforcement agencies for identity theft prosecutions are unauthorized aliens. Doc. 525 at

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9; Doc. 584-1, ¶ 120. A full 93% of MCSO’s referrals of identity theft and forgery cases

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were derived from Defendant Arpaio’s workplace investigations. Doc. 525 at 9. These

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investigations generally would begin with a tip from the community regarding a specific

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place of business and its employees, usually made to telephone and email hotlines set up

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by MCSO. Doc. 538 at 19; Doc. 525 at 12. MCSO would then investigate the tip and, if

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evidence suggested employees of the business were engaged in identity theft or forgery,

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apply for a warrant to search the worksite. Id. While executing the warrant, MCSO

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would review and seize employment files and arrest individual workers believed to have

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committed identity theft or forgery. Id. Among other records, MCSO would seize Form

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I-9 documents. Doc. 538 at 28; Doc. 573, ¶ 80. Through 2014, MCSO conducted over

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80 workplace investigations, resulting in the arrest of at least 806 employees who were

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almost exclusively unauthorized aliens. Doc. 538 at 19; Doc. 573, ¶ 59. According to

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Defendant Arpaio, MCSO was “enforce[ing] the illegal immigration laws by virtue of

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going into businesses and locking up the employees with fake IDs.” Doc. 621, ¶ 77;

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Doc. 573, ¶ 77.

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D.

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“[F]ield preemption can be inferred either where there is a regulatory framework

Field Preemption.

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so pervasive . . . that Congress left no room for the States to supplement it or where the

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federal interest is so dominant that the federal system will be assumed to preclude

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enforcement of state laws on the same subject.” Valle del Sol Inc. v. Whiting, 732 F.3d

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1006, 1023 (9th Cir. 2013) (internal quotations and brackets omitted).

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multiplicity of federal statutes or regulations govern and densely criss-cross a given field,

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the pervasiveness of such federal laws will help to sustain a conclusion that Congress

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intended to exercise exclusive control over the subject matter.” Laurence H. Tribe,

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American Constitutional Law, § 6-31, at 1206-07. “The nature of the power exerted by

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Congress, the object sought to be attained, and the character of the obligations imposed

10

by the law, are all important in considering the question of whether supreme federal

11

enactments preclude enforcement of state laws on the same subject.” Hines, 312 U.S. at

12

70.

“[W]here a

13

Citing the Court’s previous preliminary injunction order, Plaintiffs argue that

14

Congress has preempted a field of “unauthorized-alien fraud in obtaining employment,”

15

as related to the federal employment verification process. Doc. 538 at 23; Doc. 606 at 11.

16

According to Plaintiffs, this definition of the preempted field was not disturbed by the

17

Ninth Circuit and remains law of the case. Id.

18

The Court’s previous ruling, while certainly relevant, was made at the preliminary

19

injunction phase and thus was based only on likelihoods – whether Plaintiffs were likely

20

to prevail on the merits of their claim. Puente, 76 F.Supp.3d. at 853. The Court’s

21

decision was also made on a smaller factual record and less briefing than this ruling. The

22

Court is not bound by its previous decision, and, on the more complete presentations now

23

available, has taken a closer look at both Congress’ actions and Defendants’ applications

24

of the challenged laws. As discussed below, the Court finds a narrower congressional

25

intent than it found in the preliminary injunction ruling.

26

Plaintiffs themselves depart from the field identified in the Court’s preliminary

27

injunction ruling.

28

committed in the federal employment verification process, and that this preemption must

They argue that the preempted field is unauthorized alien fraud

- 13 -

1

be expanded to include any false documents provided by an unauthorized alien to an

2

employer in order to maintain consistency with false information provided in the

3

verification process. Doc. 606 at 11 n.6. Thus, Plaintiffs would include in the preempted

4

field not only the use of false documents submitted in the I-9 process or to show

5

authorization to work under federal law, but also the use of any false communication

6

made in the employment context in order to be consistent with the I-9 false identity, such

7

as false tax forms, payroll forms, or applications for employment benefits.

8

Plaintiffs argue that this broad field has been preempted by IRCA’s process for

9

verifying eligibility of prospective employees, the variety of civil and criminal sanctions

10

for employers who knowingly employ unauthorized aliens, and extensive civil, criminal,

11

and immigration penalties for unauthorized aliens who engage in employment

12

verification fraud. Doc. 538 at 14-15. As the intent of Congress is the touchstone, the

13

Court will look closely at each of the laws and regulations cited by Plaintiffs.3

14

1.

The Use Limitation.

15

Section 1324a(b)(5) provides that the Form I-9, and “any information contained in

16

or appended to such form, may not be used for purposes other than for enforcement of

17

this chapter and sections 1001, 1028, 1546, and 1621 of Title 18.”

18

§ 1324a(b)(5). This prohibition, which the Court will refer to in this order as the “use

19

limitation,” prohibits the use of the Form I-9 and any attached documents for any purpose

20

other than enforcement of specific federal criminal statutes. They cannot be used for

21

other purposes, including state prosecutions. The use limitation certainly is relevant in

22

assessing Congress’s intent for preemption purposes, but the focus of the provision is

23

quite narrow. It applies only to Form I-9 and documents appended to the form. Id.

8 U.S.C.

24
25
26
27
28

3

The United States filed an amicus curie brief with the Ninth Circuit on the appeal of the
Court’s preliminary injunction ruling. Puente Arizona et al., Plaintiffs-Appellees, v.
Sheriff Joseph Arpaio et al., Defendants-Appellants, 2016 WL 1181917 (C.A.9)
(“Amicus Brief”). The Court has considered the arguments and citations in that brief.
- 14 -

1

2.

Criminal, Civil, and Immigration Statutes.

2

As Plaintiffs note, “Congress anticipated that some individuals might respond to

3

the new employment verification system by relying on false information or documents.”

4

Doc. 538 at 14. As a result, Congress established several provisions relating to fraud

5

committed by unauthorized aliens. Plaintiffs rely heavily on these statutes for their

6

preemption argument, but a close examination shows that they too have a narrow focus:

7

Congress limited the statutes either to fraud committed in the I-9 process or fraud in

8

satisfying a requirement or seeking a benefit under federal immigration law generally.

9

a.

Criminal Penalties.

10

The federal criminal statute cited by Plaintiffs is 18 U.S.C. § 1546. Under part (a)

11

of this section, which was amended by the IRCA to apply to employment, an individual

12

is subject to fines and imprisonment if he or she:

13
14
15
16
17
18
19

knowingly forges, counterfeits, alters, or falsely makes any immigrant or
nonimmigrant visa . . . or other document prescribed by statute or
regulation for entry into or as evidence of authorized stay or
. . . employment in the United States, or utters, uses, attempts to use,
possesses, obtains, accepts, or receives any such visa . . . or other document
prescribed by statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, knowing it to be
forged, counterfeited, altered, or falsely made, or to have been procured by
means of any false claim or statement, or to have been otherwise procured
by fraud or unlawfully obtained[.]

20
21
22
23
24
25
26
27
28

18 U.S.C. § 1546(a) (emphasis added).
As relevant here, this statute prohibits a very specific kind of employment-related
fraud: use of false documents “prescribed by statute or regulation . . . as evidence of
authorized . . . employment in the United States.” Id. Thus, the only employment fraud
prohibited by part (a) is fraud in specific documents – those prescribed by federal law to
show work authorization in the United States. As explained above, federal regulations
establish three categories of documents to be used in the I-9 process: List A documents
that can be used to show both identity and work authorization, List B documents that can
be used only to show identity, and List C documents that can be used only to show work
- 15 -

1

authorization. See 8 C.F.R. § 274a.2(b)(1)(v). Section 1546(a)’s prohibition on false

2

employment-related documents applies only to List A and List C documents – those used

3

to show work authorization. The Ninth Circuit has confirmed this reading of the statute.

4

See United States v. Wei Lin, 738 F.3d 1082, 1084 (9th Cir. 2013).

5
6
7

Section 1546(b) provides criminal penalties for the use of false identification
documents or false attestations, and it too is limited to the I-9 process:
Whoever uses –

8
9

(1)

10

(2)

11

(3)

12
13
14

an identification document, knowing (or having reason to know) that the
document was not issued lawfully for the use of the possessor,
an identification document knowing (or having reason to know) that the
document is false, or
a false attestation,

for the purpose of satisfying a requirement of section 274A(b) of the Immigration
and Nationality Act, shall be fined under this title, imprisoned not more than 5
years, or both.

15

18 U.S.C. § 1546(b).

16

Nationality Act is to 8 U.S.C. § 1324a(b), the statute that establishes the I-9 process.

17

Thus, part (b) of this statute, like part (a), is limited to fraud in the I-9 process.

The reference to section 274A(b) of the Immigration and

18

Turning then to congressional intent, the precise language of § 1546(a) and (b)

19

shows that Congress had a narrow target: fraud in the I-9 process. Congress did not

20

prohibit employment fraud generally. Thus, the Court cannot conclude from the relevant

21

criminal statute that Congress intended to occupy the entire field of unauthorized alien

22

fraud in the employment context.

23

b.

Civil Penalties.

24

The civil penalties cited by Plaintiffs are similarly focused. Congress set out a

25

range of unlawful conduct for which civil penalties can be imposed in 8 U.S.C. § 1324c.

26

The penalties can range from $250 to $5,000. 8 U.S.C. § 1324c(d)(3). The unlawful

27

conduct includes making false documents, using false documents, using a document

28

issued to another person, and receiving a document issued to another person.

- 16 -

1

§ 1324c(a)(1)-(5).

2

specific purposes: “satisfying a requirement of this chapter or to obtain a benefit under

3

this chapter,” “to satisfy any requirement of this chapter or to obtain a benefit under this

4

chapter,” or “for the purpose of complying with section 1324a(b).”

5

§ 1324c(a)(1)-(4). The unlawful conduct may also include fraud in “any application for

6

benefits under this chapter, or any document required under this chapter, or any

7

document submitted in connection with such application or document.”

8

§ 1324c(a)(5).

This unlawful conduct, however, is limited to actions taken for

8 U.S.C.

8 U.S.C.

9

The references in these civil penalty provisions to “this chapter” is to Chapter 12

10

of Title 8, which addresses a broad range of immigration matters such as immigration

11

qualifications and procedures, alien registration, naturalization, refugee resettlement,

12

removal of aliens, and criminal penalties for immigration crimes. See 8 U.S.C. §§ 1101-

13

1537. The civil penalties for fraud related to these broad-ranging immigration laws do

14

not, in the Court’s view, reveal any intent of Congress to preempt state prosecution of

15

identity theft in the employment context. The penalties instead reflect a broad intent to

16

penalize those who defraud the nation’s immigration system.

17

Plaintiffs’ employment-specific preemption argument. Plaintiffs do not challenge the

18

identity theft statutes on the ground that Defendants are using them to prosecute broad-

19

ranging immigration fraud.

They do not support

20

The civil penalty provisions do make specific reference to one statute: 8 U.S.C.

21

§ 1324a(b). Again, this is the statute that establishes the I-9 process. Thus, to the extent

22

that one can discern any preemptive intent from the civil penalty provisions, it is

23

narrowly focused on the I-9 process. As with the criminal provision discussed above, the

24

Court cannot conclude that Congress intended to occupy the entire field of unauthorized

25

alien fraud in employment.

26

c.

Immigration Consequences.

27

Plaintiffs also rely on immigration consequences imposed on aliens who commit

28

fraud – that is, adverse consequences that can occur in the immigration process to persons

- 17 -

1

who commit fraud. But these statutes are also narrowly focused.

2

8 U.S.C. § 1227 provides that an alien may be removed from the United States if

3

he or she has been convicted of “a violation of, or an attempt or a conspiracy to violate,

4

section 1546 of Title 18.” 8 U.S.C. § 1227(a)(3)(B)(iii). As we have already seen,

5

§ 1546 is limited to the I-9 process.

6

Section 1227 also provides that “[a]ny alien who falsely represents, or has falsely

7

represented, himself to be a citizen of the United States for any purpose or benefit under

8

this chapter (including section 1324a of this title) or any Federal or State law is

9

deportable.” 8 U.S.C. § 1227(a)(3)(D)(i). This provision focuses on fraud under the

10

immigration laws of Chapter 12, as discussed above, and § 1324a, which is the I-9

11

process. It has the same narrow focus as the civil penalty provisions.

12

This section – as well as § 1182 discussed below – also refers to fraud committed

13

for any purpose, or to obtain any benefit, under “Federal or State law,” but the Court

14

cannot find in this phrase a congressional intent to preempt state regulation of all fraud in

15

employment. Because these statutes are identifying situations under which aliens are

16

inadmissible or deportable, they necessarily have a broader focus than fraud in the I-9

17

process. Congress intended to sweep in many kinds of fraudulent conduct that could

18

affect a person’s suitability for citizenship or legal residency.

19

language, and nothing cited by Plaintiffs, suggests that this general mention of federal

20

and state law has anything to do with employment, or represents a specific intent to

21

preempt prosecution of employment fraud outside the I-9 process. The Court cannot

22

conclude that a broad description of events that might affect the right to citizenship or

23

residency shows a “clear and manifest” intent to prevent states from regulating all

24

unauthorized alien fraud in the employment context. Puente, 821 F.3d at 1104.

But nothing in the

25

Section 1182 provides that “[a]ny alien who falsely represents, or has falsely

26

represented, himself or herself to be a citizen of the United States for any purpose or

27

benefit under this chapter (including section 1324a of this title) or any other Federal or

28

State law is inadmissible.” 8 U.S.C.A. § 1182(a)(6)(C)(ii)(1). Again, the focus is on

- 18 -

1

obtaining benefits under the immigration chapter and, specifically, the I-9 process. Like

2

§ 1227, the statute has the same narrow focus as the civil penalty provisions.

3

One provision is a bit broader. It states that an alien is not eligible for adjustment

4

of status if he or she “continues in or accepts unauthorized employment prior to filing an

5

application for adjustment of status.” 8 U.S.C. § 1255(c). This provision does refer to

6

unauthorized employment generally, but it does not focus on fraud. The penalty arises

7

from being employed when unauthorized. Thus, although it has a somewhat broader

8

focus than the other provisions Plaintiffs cite, it does not show a clear and manifest

9

congressional intent to focus on employment-related fraud outside the I-9 process. 4

10

d.

Conclusion from Plaintiffs’ Statutes.

11

After carefully reviewing these statutes, the Court cannot conclude that Congress

12

has expressed a clear and manifest intent to occupy the field of unauthorized alien fraud

13

in seeking employment. The focus of the criminal statute, 18 U.S.C. § 1546, is the I-9

14

process. The focus of the civil penalty statutes is the I-9 process and fraud committed to

15

comply with or obtain benefits from immigration laws found in Chapter 12 of Title 8.

16

The immigration consequences also focus primarily on obtaining benefits under the

17

immigration chapter and, specifically, the I-9 process. The Court cannot find in these

18

statutes the broad preemptive intent Plaintiffs espouse.

19

3.

Plaintiffs’ Other Arguments.

20

Plaintiffs argue that Congress has manifested a clear intent to focus penalties on

21

employers rather than employees in the regulation of unauthorized alien employment.

22

Doc. 538 at 16. According to this argument, Congress’s failure to provide harsher

23

criminal and civil penalties for fraud committed by unauthorized aliens was a deliberate

24

decision. But the specific area in which Congress chose to impose less harsh penalties

25
4

26
27
28

Section 1182(a)(6)(C)(i) provides that “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United States or other
benefit provided under this chapter is inadmissible.” This provision is primarily focused
on fraudulent admission to the United States or obtaining other benefits under the
immigration chapter. It is not employment-specific and does not show a congressional
intent to preempt regulation of employment-related fraud.
- 19 -

1

was narrow – the I-9 process or efforts to obtain benefits from or comply with federal

2

immigration law. The statutes reviewed above impose no penalties for employment-

3

related fraud outside the I-9 process, and the Court therefore cannot conclude that

4

Plaintiffs’ lighter-penalties argument proves a clear and manifest preemptive intent.

5

Plaintiffs also argue that “undocumented immigrants who submit false identity

6

information in the I-9 process have to complete other employment-related paperwork to

7

get or maintain a job – and their use of the same false information on those other

8

documents to maintain the same identity is still being done for an immigration-related

9

reason, to prove that they are authorized to work in the United States.” Doc. 606 at 8

10

(internal quotations and citations omitted). Thus, Plaintiffs argue, any fraud committed

11

in the employment context simply to maintain consistency with the false identity used in

12

the I-9 process falls within the federally preempted field of unauthorized alien fraud in

13

the federal employment verification system. Doc. 538 at 26.

14

The Court is not persuaded. While it may be true that unauthorized aliens must

15

maintain a consistent false identity in all of their employment-related communications,

16

such an obvious fact would not have been lost on Congress. And yet Congress clearly

17

directed its statutes at the I-9 process, not other aspects of the employment relationship.

18

What is more, Plaintiffs’ consistency argument proves too much. If Congress has

19

preempted the prosecution of any identify fraud undertaken to be consistent with fraud

20

committed in the I-9 process, such preemption would extend well beyond fraud

21

committed to obtain employment. It would encompass fraud on tax forms, payroll

22

benefits forms, insurance forms, and even direct deposit forms submitted to an employer.

23

Although these forms are not intended to demonstrate work authorization, state

24

prosecutions based on them would, under Plaintiffs’ theory, be preempted so long as the

25

individual used the same identity as he used in the I-9 process.

26

Nor would the preemptive effect stop at the employer.

For example, the

27

individual who submitted a false direct deposit form to his employer, using the same false

28

name already used on his Form I-9, would inevitably need to open a bank account to

- 20 -

1

receive the direct deposits, and the account would also need to be in the same false name.

2

Would prosecution based on use of the false name at the bank be preempted simply

3

because it was done to maintain consistency with fraud already committed on the Form I-

4

9? What if the employee sought a car loan, and used the same false name as he did on

5

the Form I-9 because he knew the lender would contact his employer to verify his

6

employment? Would his intent to be consistent with the I-9 fraud bar prosecution for

7

defrauding the lender? The Court sees no boundary to Plaintiffs’ position that Congress

8

preempted not only fraud in the I-9 process, but also fraud done to be consistent with the

9

I-9 process. Certainly the Court can find no intent of Congress to preempt so broadly, let

10

alone a clear and manifest intent.

11

Plaintiffs’ expansive preemption argument also includes inconsistencies.

12

Plaintiffs concede that “there may be a rare case where an undocumented immigrant

13

commits fraud in employment for reasons other than to demonstrate authorization to

14

work,” and that state prosecution of such fraud would not be preempted. Doc. 606 at 11-

15

12 n.6. Plaintiffs offer the example of an unauthorized alien who presents a false

16

commercial or passenger driver’s license to prove his ability to drive for the employer,

17

but they do not explain why this act would be outside the scope of their proposed field

18

preemption. Id. After all, use of the same false name on the commercial driver’s license

19

presumably is done to be consistent with the I-9 fraud.

20

4.

Field Preemption Conclusion.

21

In summary, the Court finds a clear and manifest congressional intent to preempt

22

a relatively narrow field: state prosecution of fraud in the I-9 process. This intent is

23

reflected in the use limitation of § 1324a(b)(5) and also in the fact that the criminal, civil,

24

and immigration penalties discussed above all focus primarily on the I-9 process. They

25

represent comprehensive federal regulation of this narrow field.

26

But the Court finds no clear and manifest congressional intent to preempt state

27

regulation of anything beyond fraud committed directly in the Form I-9 process. The

28

criminal, civil, and immigration statutes do not attempt to regulate employment-related

- 21 -

1

fraud beyond the Form I-9 and its attachments.

2

When Congress did address other law enforcement actions directly – in the use

3

limitation – it chose to foreclose nothing beyond the Form I-9 and attached documents. 8

4

U.S.C. § 1324a(b)(5). Granted, an “express preemption provision . . . does not bar the

5

ordinary working of conflict pre-emption principles or impose a special burden making it

6

more difficult to establish the preemption of laws falling outside the clause.” Arizona,

7

132 S. Ct. at 2496 (internal quotation marks omitted). But as the Ninth Circuit has

8

explained:

9

17

express provisions for preemption of some state laws imply that Congress
intentionally did not preempt state law generally, or in respects other than
those it addressed. When Congress has considered the issue of pre-emption
and has included in the enacted legislation a provision explicitly addressing
that issue, and when that provision provides a reliable indicium of
congressional intent with respect to state authority, there is no need to infer
congressional intent to preempt state laws from the substantive provisions
of the legislation. This applies the familiar principle of statutory
construction, expressio unius est exclusio alterius. This is not a rule of law,
but one of interpretation, based on how language is ordinarily used.
Nevertheless, the congressional narrowness and precision in preempting
some state laws cuts against an inference of a congressional intention to
preempt laws with a broad brush, and without express reference.

18

Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 225 (9th Cir. 1994) (internal quotation

19

marks and citations omitted).

10
11
12
13
14
15
16

20

The Court notes that it does not read the use limitation as narrowly as Defendants.

21

They argue that the limitation applies only to use of the Form I-9 to prove the elements of

22

a crime. Docs. 510 at 16; 534 at 24-27. This interpretation is not supported by the plain

23

meaning of the text.

24

document “appended to such form,” and the provision prohibits “use” of Form I-9

25

generally, not just use as evidence. The word “use” would appear to include use in

26

investigations. This interpretation is supported by the legislative history of the IRCA,

27

which suggests that the use limitation was included to address “[c]oncern . . . that

28

verification information could create a ‘paper trail’ resulting in the utilization of this

The limitation encompasses not only the Form I-9, but any

- 22 -

1

information for the purpose of apprehending undocumented aliens.” H.R. Rep. 99-682(I-

2

II) (1986) at 8-9. The Court agrees with the position of the federal government expressed

3

in its Amicus Brief before the Ninth Circuit:

4
5
6
7
8

In stating that information within or accompanying the Form I-9 “may not
be used” other than for enumerated federal purposes, § 1324a(b)(5) does
not distinguish between reliance on such information for investigation or
prosecution. In practical terms, § 1324a(b)(5) therefore constrains state and
local law enforcement’s ability to rely on the Form I-9 as an investigative
lead, or as the basis for obtaining a warrant to raid a workplace thought to
be employing unauthorized aliens.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Amicus Brief, at *14.
The Court concludes that Defendants are field preempted from using the Form I-9
and accompanying documents for investigations or prosecutions of violations of the
Arizona identity theft and forgery statutes. As noted above, this includes approximately
10 percent of the employment-related identity theft and forgery cases prosecuted between
2005 and 2015. The Court will seek additional briefing on the appropriate relief.
E.

Conflict Preemption.

“There are two types of conflict preemption. Conflict preemption occurs where
(1) it is impossible to comply with both federal and state law, or (2) where the state law
stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Puente, 821 F.3d at 1104. Conflict preemption can occur where
“inconsistency of sanctions . . . undermines the congressional calibration of force.”
Crosby, 530 U.S. at 380. Additionally, even where state and federal laws have similar
aims, a “[c]onflict in technique can be fully as disruptive to the system Congress enacted
as conflict in overt policy.” Arizona, 132 S. Ct. at 2505 (internal quotations omitted).
The Ninth Circuit has also found conflict preemption where state laws “divest[ed] federal
authorities of the exclusive power to prosecute [certain] crimes.” Valle del Sol, 732 F.3d
at 1027. As the Supreme Court has explained, however, “when the claim is that federal
law impliedly pre-empts state law, we require a strong showing of a conflict to overcome
the presumption that state and local regulation . . . can constitutionally coexist with
- 23 -

1

federal regulation.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 641-42 (2011) (internal

2

quotation marks omitted).

3

“To determine whether a state law conflicts with Congress’ purposes and

4

objectives, we must first ascertain the nature of the federal interest.” Hillman, 133 S. Ct.

5

at 1949–50. Here, Plaintiffs’ conflict preemption arguments focus solely on obstacle

6

preemption. Plaintiffs argue that application of the Arizona identity theft and forgery

7

statutes to unauthorized-alien employment fraud is conflict preempted because it layers

8

additional and different penalties on top of federal penalties for the same conduct,

9

undermines federal discretion in addressing alien fraud in obtaining employment, and

10

interferes with Congress’s careful balancing of priorities within the broader immigration

11

regulatory scheme. Doc. 538 at 15-16, 24, 29-30.

12

The Court is not persuaded. As already noted, federal statutes cited by Plaintiffs

13

provide criminal and civil penalties only for fraud committed directly in the I-9 process,

14

or to satisfy other immigration requirements or receive other immigration benefits. To

15

the extent evidence shows that the identity theft and forgery statutes have been applied to

16

I-9 conduct, they clearly are layered on top of federal penalties and the application is

17

conflict preempted – in addition to being field preempted, as shown above. But state

18

penalties imposed on fraud committed outside the I-9 process do not layer additional

19

consequences on top of federal penalties because the federal penalties do not address

20

non-I-9 conduct, as also shown above.

21

Plaintiffs argue that “use of a false identity on non-I-9 documents to be consistent

22

with information workers provide in the employment verification status is the same

23

activity for these purposes as use of a false identity on an I-9.” Doc. 606 at 16. The

24

Court does not agree. Use of a false name in the I-9 process is done to establish federal

25

authorization to work. Use of the same false name on an employer’s direct-deposit

26

payroll form, for example, is done for a different purpose – to obtain the convenience of

27

direct payroll deposits. True, the employee logically will use the same false name on the

28

payroll form that he used on the I-9 form, but the act is different and the purpose is

- 24 -

1

different. The two acts constitute separate crimes in separate spheres – one extensively

2

regulated by Congress and one not. The Court concludes that state regulation of fraud

3

outside the I-9 process does not conflict with statutes that focus directly on that process

4

and say nothing about the broader employment context.

5

Plaintiffs cite various non-statutory sources to argue that the federal government

6

has a variety of interests related to immigration and alien employment (Doc. 538 at 24),

7

and that application of the Arizona identity theft and forgery statutes will “interfere with

8

the careful balance struck by Congress with respect to unauthorized employment of

9

aliens.” Arizona, 132 S. Ct. at 2505. Plaintiffs stress congressional concern about the

10

possibility of undermining labor standards and protections. They cite to the legislative

11

history of the IRCA:

12

[T]he committee does not intend that any provision of this Act would limit
the powers of State or Federal labor standards . . . , in conformity with
existing law, to remedy unfair practices committed against undocumented
employees for exercising their rights before such agencies or for engaging
in activities protected by these agencies. To do otherwise would be
counter-productive of our intent to limit the hiring of undocumented
employees and the depressing effect on working conditions caused by their
employment.

13
14
15
16
17
18

H.R. Rep. 99-682, 8-9 (1986).

19

Additionally, Plaintiffs refer to a variety of policy statements and agreements

20

made by federal agencies that express an intention to ensure that immigration law does

21

not undermine labor and employment protections or contribute to the vulnerability of

22

unauthorized aliens to abusive employment conditions. See Doc. 538 at 16; Amicus

23

Brief, at *18-20. The Amicus Brief cites a 2015 Action Plan from the Interagency Work

24

Group for the Consistent Enforcement of Federal Labor, Employment and Immigration

25

Laws, which seeks to coordinate efforts to enforce labor, employment, and immigration

26

laws.

27

routinely rely on foreign nationals, including unauthorized aliens, to build cases,

28

particularly against human traffickers. . . . The ability to [do so] advances important

Id.

The government further notes that “[f]ederal law enforcement officials

- 25 -

1

federal interests that would be thwarted by parallel state prosecutions of the same

2

individuals for offenses already regulated by federal law.” Amicus Brief, at *18-19.

3

Plaintiffs also assert that the United States has entered into a number of treaties relating

4

to labor rights, suggesting that state interference in the regulation of alien employment

5

will likely interfere with foreign relations.

6

According to Plaintiffs, application of the identity theft and forgery statutes to fraud

7

committed to maintain consistency with the From I-9 will interfere with federal discretion

8

and priorities and undermine the federal government’s ability to balance important

9

interests.5

Doc. 538 at 17; Amicus Brief, at *20.

10

Although these citations do show a federal intent to balance important interests,

11

Plaintiffs’ argument again proves too much. If prosecution of an unauthorized alien for

12

using a false identity on a state tax form submitted to his employer would interfere with

13

the federal government’s discretion not to prosecute that alien (and thereby retain him,

14

say, as a witness for an unfair labor case), prosecution of the alien for submitting the

15

same false identity to a bank or a car lender would have the same effect. Indeed, virtually

16

any prosecution of the alien by the State would likely eliminate him as a potential witness

17

for the federal government. And yet Plaintiffs do not argue, and could not credibly argue,

18

that all prosecutions of unauthorized aliens for fraud or identity theft are conflict

19

preempted. Plaintiffs attempt to draw a line around the employment context, limiting

20

conflict preemption to fraud committed by unauthorized aliens in their employment, but

21

the Court can find no legal basis on which to so limit Plaintiffs’ conflict preemption

22

theory, and, more importantly, no evidence that Congress intended to draw such a line.

23

As noted above, the criminal, civil, and immigration statutes relied on by Plaintiffs draw

24
25
26
27
28

5

Plaintiffs note that Congress has recognized that unauthorized aliens can be victims of
human trafficking, and has provided that “[v]ictims of severe forms of trafficking should
not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts
committed as a direct result of being trafficked, such as using false documents, entering
the country without documentation, or working without documentation.” 22 U.S.C. §
7101(b)(19). But Plaintiffs have provided no evidence that victims of human trafficking
who have used false documents “as a direct result of being trafficked” have been
prosecuted by Defendants under the Arizona identity theft and forgery laws.
- 26 -

1

a narrower line, limiting their application to fraud in the I-9 process.

2

Moreover, Plaintiffs have not presented any evidence to show that Defendants’

3

application of the Arizona laws has had a practical effect on the federal government’s

4

ability to maintain labor standards and protect against employer abuse. As already noted,

5

factual findings are crucial to establish conflict in an as-applied preemption analysis.

6

Puente, 821 F.3d at 1105

7

The Court does not doubt that federal officials seek to preserve their ability to

8

enforce labor laws and to use unauthorized aliens as witnesses when needed. And it is

9

true that state prosecution of unauthorized aliens outside of the I-9 process might at times

10

be in tension with that federal desire. But the question to be answered by the Court is not

11

what preemption holding will produce the smoothest path for government. The Court is

12

not a general ombudsman, at liberty to fashion a preemption ruling that accommodates

13

priorities that appear to be important. The key question – the “touchstone” – is the intent

14

of Congress. Wyeth, 555 U.S. at 565; Medtronic, 518 U.S. at 485. And as discussed in

15

detail above, the Court can find no basis on which to conclude that Congress intended to

16

preclude states from prosecuting the use of false identities outside the I-9 process.6

17

In addition, as the Ninth Circuit observed on a related point, “[a]lthough there is

18

tension between the federal scheme and some applications of the identity theft laws, we

19

hold that this tension is not enough to rise to the level of a ‘clear and manifest purpose’ to

20

preempt the identity theft laws in their entirety.” Puente, 821 F.3d at 1105. Similarly,

21
22
23
24
25
26
27
28

6

The Court acknowledges that “[f]ederal regulations have no less pre-emptive effect than
federal statutes.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982);
see also Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir. 1996).
“Where Congress has delegated the authority to regulate a particular field to an
administrative agency, the agency’s regulations issued pursuant to that authority have no
less preemptive effect than federal statutes, assuming those regulations are a valid
exercise of the agency’s delegated authority.” Fellner v. Tri-Union Seafoods, L.L.C., 539
F.3d 237, 243 (3d Cir. 2008). But the policy statements, action plans, and agency
agreements cited by Plaintiffs are not regulations and thus are not “federal law which
preempts contrary state law.” Id. at 244 (emphasis in original). “[N]othing short of
federal law can have that effect.” Id.
- 27 -

1

this Court finds that the policy tensions identified by Plaintiffs are not enough to show a

2

clear and manifest intent by Congress to preclude application of state identity theft and

3

forgery laws outside the I-9 process. Nor have Plaintiffs shown that Arizona’s exercise

4

of its historic police powers to protect its citizens from identity theft has done “major

5

damage” to “clear and substantial” federal interests. Hillman, 133 S. Ct. at 1950. As

6

already noted, “when the claim is that federal law impliedly pre-empts state law, we

7

require a strong showing of a conflict to overcome the presumption that state and local

8

regulation . . . can constitutionally coexist with federal regulation.” PLIVA, 564 U.S. at

9

641-42. The Court sees no strong showing of conflict between application of the identity

10

theft and forgery statutes outside the I-9 process and federal statutes that are limited to

11

that process.

12

The Court accordingly finds that the only conflict Congress clearly and manifestly

13

intended to preempt is that caused by application of the Arizona identity theft and forgery

14

statutes to unauthorized alien fraud committed in the I-9 process. As noted, the Court

15

will seek additional briefing on the proper remedy for this preemption finding.

16

IV.

Equal Protection Claim.

17

Plaintiffs claim that the Arizona identity theft laws (again, the portions added by

18

amendments in 2007 and 2008) violate their Fourteenth Amendment right to equal

19

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

20

Clause is to identify the classification that it draws.” Coal. for Econ. Equity v. Wilson,

21

122 F.3d 692, 702 (9th Cir. 1997). The classification helps the court determine whether

22

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

23

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

24

1995). “[I]f it is demonstrated that a cognizable class is treated differently, the court

25

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

26

between the groups is justified.” Id.

27

A.

28

A law’s classification can be determined in one of three ways. First, the law may

Classification.

- 28 -

1

classify on its face, by its explicit terms. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967).

2

Second, the law, although neutral on its face, may be applied in a discriminatory way.

3

See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). Third, the law, although neutral on

4

its face and applied according to its terms, may have been enacted with a purpose of

5

discriminating. See e.g., Hunter v. Underwood, 471 U.S. 222 (1985).

6

Only the third method is relevant here. Plaintiffs acknowledge that the Arizona

7

identify theft laws are neutral on their face – they apply to all Arizona residents,

8

authorized or unauthorized, who use false identities in obtaining employment. And

9

Plaintiffs do not argue that the application of the laws creates an improper classification;

10

Plaintiffs have dismissed their as-applied equal protection claim. Doc. 139. Thus, if the

11

Court is to find that the identity theft laws classify in a way that raises equal protection

12

concerns, it must do so on the basis of legislative purpose.

13

To establish a discriminatory purpose, Plaintiffs must show that the legislature

14

“selected or reaffirmed a particular course of action at least in part ‘because of,’ not

15

merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of

16

Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). The Supreme Court has identified

17

several factors to be considered when determining whether a legislative action was

18

undertaken for a discriminatory purpose. Vill. of Arlington Heights v. Metro. Hous. Dev.

19

Corp., 429 U.S. 252, (1977). These include the historical background of the statute, the

20

sequence of events that led to its enactment, whether the legislature departed from normal

21

legislative procedures, the legislative history of the statute, and, “[i]n some extraordinary

22

instances,” actual testimony from legislators. Id. at 267-68.

23

The Supreme Court has instructed that courts should be cautious when deciding

24

whether a statute was enacted for a discriminatory purpose. “Proving the motivation

25

behind official action is often a problematic undertaking.” Hunter v. Underwood, 471

26

U.S. 222, 228 (1985). The task “demands a sensitive inquiry into such circumstantial and

27

direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266. As

28

the Supreme Court has explained:

- 29 -

1

“Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will
look to statements by legislators for guidance as to the purpose of the
legislature, because the benefit to sound decision-making in this
circumstance is thought sufficient to risk the possibility of misreading
Congress’ purpose. It is entirely a different matter when we are asked to
void a statute that is, under well-settled criteria, constitutional on its face,
on the basis of what fewer than a handful of Congressmen said about it.
What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork.”

2
3
4
5
6
7
8
9
10

Hunter, 471 U.S. at 228 (quoting United States v. O’Brien, 391 U.S. 367, 383-384
(1968)).

11

Even with these cautions in mind, the Court concludes that the Arizona identity

12

theft statutes were amended to apply to employment, at least in part, for their effect on

13

unauthorized aliens. As recounted above, the laws were passed as part of a larger

14

package of legislation focused on illegal immigration. Doc. 575 at 15. The titles of the

15

legislation – the “Legal Arizona Workers Act” and “Employment of Unauthorized

16

Aliens” – were consistent with this focus, and Plaintiffs cite several statements by

17

Arizona lawmakers expressing an intent to target unauthorized aliens and discourage

18

illegal immigration. Doc. 621 at 4-8; Doc. 538 at 17-18; Doc. 575 at 16-21; Doc. 588 at

19

14-17. Plaintiffs also provide evidence regarding the immigration-focused context in

20

which the laws were enacted. Doc. 588 at 17-19. Thus, as the Ninth Circuit and this

21

Court previously found, the legislative history surrounding the enactment of these bills

22

indicates “an intent on the part of Arizona legislators to prevent unauthorized aliens from

23

coming to and remaining in the state.” Puente, 821 F.3d at 1102; see also Puente, 76 F.

24

Supp. 3d at 855.7

25
7

26
27
28

A law’s effect on a particular group can also be probative of the legislature’s purpose.
Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 487 (1997). The parties present much
evidence on the actual effect of the identity theft laws, but the Court does not find it
helpful on the question of purpose. Although the statistics show that the vast majority of
persons prosecuted for identity theft in the employment context are unauthorized aliens,
Plaintiffs do not contend that the number of those prosecutions has been disproportionate
to the rate at which unauthorized aliens actually commit identity theft in the employment
- 30 -

1

But the focus on illegal immigration was not the only legislative purpose. As

2

noted above, the Arizona identity theft statutes were enacted to combat a very real and

3

growing problem. After its enactment in 1996, § 13-2008 was amended in 1997 to drop

4

the requirement of “financial loss,” 1997 Ariz. Legis. Serv. Ch. 136, § 14 (H.B. 2408),

5

and in 2000 to encompass “any personal identifying information,” 2000 Ariz. Legis.

6

Serv. Ch. 189, § 8 (H.B. 2428). Plaintiffs make no argument that these enactments had a

7

discriminatory purpose. Nor do they claim that passage of § 13-2009 in 2005 was for a

8

discriminatory purpose. Thus, there is no doubt that the identity theft statutes were

9

created to address a genuine state problem.

10

When the statutes were amended in 2007 and 2008, that problem had grown

11

worse. “Between 2006 and 2008, Arizona had the highest per-capita identity theft rates

12

in the nation, and one third of all identity theft complaints in the state involved

13

employment-related fraud.” Puente, 821 F.3d at 1002. Thus, as the Ninth Circuit noted,

14

the 2007 and 2008 amendments “were also aimed at curbing the growing and well-

15

documented problem of identity theft in Arizona.” Id. The Ninth Circuit also made this

16

relevant observation:

17
18
19
20
21
22
23

Since the laws were amended, Arizona has been aggressively enforcing
employment-related identity theft. Although most of these enforcement
actions have been brought against unauthorized aliens, some authorized
aliens and U.S. citizens have also been prosecuted. And while many of the
people prosecuted under the identity theft laws used a false identity to
prove that they are authorized to work in the United States, other
defendants used false documents for non-immigration related reasons. For
example, Arizona has prosecuted U.S. citizens who used another
individual’s identity to hide a negative criminal history from a potential
employer.

24
25
26
27
28

context. Doc. 589 at 46. Indeed, Plaintiffs concede that they cannot make this showing.
Doc. 588 at 22. As a result, the Court cannot find from their effects that the identity theft
laws discriminate – that the laws punish unauthorized aliens offenders at a higher
proportion than offenders in other groups. Plaintiffs argue that the sheer number of
prosecutions is indicative of a discriminatory purpose, even if not disproportionate. The
Court does not agree. A criminal law passed with absolutely no discriminatory purpose
will impose more punishment on the group that violates it most frequently.
- 31 -

1

Id. at 1102.

2

Defense expert Cohen found that the rate of identity theft in Arizona is more than

3

twice that of other states and costs Arizona residents between $2.8 and $5.1 billion

4

annually. Doc. 584, ¶¶ 6, 13. He found that employment-related identity theft was the

5

most frequent type of identity theft in 2006 (39% of complaints), and the third most

6

common in 2015 (9% of complaints). Id. at ¶ 7. Plaintiffs do not dispute these findings.

7

Doc. 589 at 26.

8
9

Defendants also present evidence of the very real harm that results from identity
theft.

According to Cohen, 49% of MCAO’s prosecutions for employment related

10

identity theft or forgery had at least one identifiable victim. Doc. 584, ¶ 14. He found

11

that these victims suffer a variety of harms, including unwarranted debt collections,

12

lawsuits, and IRS tax collection actions, as well as anxiety and other psychological

13

injuries. Id., ¶ 18. Additionally, identity theft in employment leads to false income

14

reporting, and Cohen found that, as a result of this false reporting, some victims in

15

Maricopa County were initially denied food stamps or medical, disability, or other forms

16

of public assistance. Id., ¶ 22. Plaintiffs do not dispute these facts. Doc. 589 at 31-32.

17

Thus, the Court finds that the Arizona legislature had more than one purpose in

18

enacting the identity theft laws.

19

immigration by unauthorized aliens, but the legislature was also addressing a pressing

20

criminal problem that adversely affected Arizona residents.

The laws were passed in part for their effect on

21

The existence of these dual motives does not end the equal protection inquiry,

22

however, because Supreme Court precedent “does not require a plaintiff to prove that the

23

challenged action rested solely on racially discriminatory purposes.” Arlington Heights,

24

429 U.S. at 265. “Rarely can it be said that a legislature or administrative body operating

25

under a broad mandate made a decision motivated solely by a single concern, or even that

26

a particular purpose was the ‘dominant’ or ‘primary’ one.” Id. An equal protection

27

inquiry will proceed if “there is proof that a discriminatory purpose has been a motivating

28

factor in the decision.” Id. at 265-66; see also Arce v. Douglas, 793 F.3d 968, 977 (9th

- 32 -

1

Cir. 2015) (“A plaintiff does not have to prove that the discriminatory purpose was the

2

sole purpose of the challenged action, but only that it was a ‘motivating factor.’”).

3

The Court finds that the effect of the identity theft statutes on unauthorized aliens

4

was a motivating factor in the Arizona legislature’s passage of the statutes. As a result,

5

Plaintiffs have presented enough evidence to show that the statutes classify unauthorized

6

aliens for purposes of equal protection scrutiny. The Court must therefore determine the

7

appropriate level of scrutiny to apply to the statutes in light of this classification, and

8

whether the statutes survive such scrutiny. The parties agree that this is the next step in

9

the equal protection analysis. Doc. 588 at 25; Doc. 604 at 16.8

10

B.

11

The “equal protection guarantee of the Fourteenth Amendment does not take from

12

the States all power of classification.” Feeney, 442 U.S. at 271. It is well accepted that

13

“[m]ost laws classify, and many affect certain groups unevenly, even though the law

14

itself treats them no differently from all other members of the class described by the law.

15

When the basic classification is rationally based, uneven effects upon particular groups

16

within a class are ordinarily of no constitutional concern.” Id. at 271-72.

17

Level of Scrutiny.

If a law classifies on the basis of race or alienage, however, it must satisfy strict

18
8

19
20
21
22
23
24
25
26
27
28

When evidence of a discriminatory motive is found, a defendant may seek to show that
the statute would have been passed even in the absence of the motive. Hunter, 471 U.S.
at 225. Such a showing could, presumably, eliminate the statute’s classification and end
the equal protection inquiry. Defendants attempt to make this showing by citing a
statement from Senator Pearce explaining the high level of identity theft in Arizona and
the problems it creates, as well as a legislative debate on appropriate sanctions for
identity theft. Doc. 510 at 25. Even if this evidence might create a factual question as to
whether the statutes would have been enacted without their effect on unauthorized aliens,
the Court need not deny summary judgment and proceed to trial on this issue because, as
explained below, the identity theft statutes survive rigorous rational basis scrutiny even if
they were motivated in part by their effect on unauthorized aliens. The Court also notes,
parenthetically, that a trial on whether the statutes would have been amended without the
focus on unauthorized aliens is difficult to envision. The primary factors for determining
legislative intent – the Arlington Heights factors set forth above – are usually addressed
through briefing rather than trial. And for more than 200 years the Supreme Court has
cautioned strongly against calling individual legislators to testify in trials. See, e.g.,
Arlington Heights, 429 U.S. at 268 n.18 (“This Court has recognized, ever since Fletcher
v. Peck, 6 Cranch 87, 130-131, 3 L.Ed. 162 (1810), that judicial inquiries into legislative
or executive motivation represent a substantial intrusion into the workings of other
branches of government. Placing a decisionmaker on the stand is therefore ‘usually to be
avoided.’”).
- 33 -

1

scrutiny – the classification will be valid only if it is necessary to achieve a compelling

2

government purpose. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984). If a law

3

classifies on the basis of gender or legitimacy, the law must satisfy intermediate scrutiny

4

– the classification will be valid only if it has a substantial relationship to an important

5

government purpose. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996). For

6

all other classifications, a law must satisfy rational basis review – the classification must

7

be rationally related to a legitimate government purpose. See, e.g., Pennell v. City of San

8

Jose, 485 U.S. 1, 14 (1988).

9

Plaintiffs argue that the Court should apply a non-traditional form of heightened

10

scrutiny used in Plyler v. Doe, 457 U.S. 202 (1982). Plyler concerned a Texas law that

11

denied a public education to the children of unauthorized aliens. Plyler appears to apply

12

a hybrid form of review, stating that the law in question “can hardly be considered

13

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

14

fits this unusual test in the established levels of equal protection scrutiny, the Court

15

concludes that Plyler does not apply to this case.

16

preliminary injunction ruling:

17
18
19
20
21
22
23
24
25
26
27
28

As the Court explained in its

Plaintiffs initially argue that some form of “heightened scrutiny”
should apply. Relying on Plyler v. Doe, 457 U.S. 202 (1982), they argue
that the Court should assess whether the identity theft laws further a
substantial or important state interest. While “states must generally treat
lawfully present aliens the same as citizens, and state classifications based
on alienage are subject to strict scrutiny review,” Korab v. Fink, 748 F.3d
875, 881 (9th Cir. 2014) (emphasis added) (citing In re Griffiths, 413 U.S.
717, 719-22 (1973)), the same is not true for unauthorized aliens.
“Undocumented aliens cannot be treated as a suspect class because their
presence in this country in violation of federal law is not a ‘constitutional
irrelevancy.’” Plyler, 457 U.S. at 223. . . . The [Supreme] Court explained
that “undocumented status is not irrelevant to any proper legislative goal.
Nor is undocumented status an absolutely immutable characteristic since it
is the product of conscious, indeed unlawful action.” Id. at 220. The
[Supreme] Court ultimately applied a form of rational basis review to the
law, finding that the law could not “be considered rational unless it furthers
some substantial goal of the State.” Id. at 224.

- 34 -

1
2
3
4
5
6
7
8
9
10

This language of furthering “some substantial goal” is different from
traditional rational basis review, under which a court “will uphold the
legislative classification so long as it bears a rational relationship to some
legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Plaintiffs
argue that this “substantial goal” test should apply here. The Court
disagrees. Plyler’s holding was expressly grounded on the unique
vulnerability of children and the importance of education. The Court
emphasized that the Texas law was “directed against children, and imposes
its discriminatory burden on the basis of a legal characteristic over which
children can have little control.” Plyler, 457 U.S. at 220. The Court
contrasted this with the situation of adult unauthorized aliens, whose
presence is “the product of conscious, indeed unlawful, action.” Id.
Because the present case does not involve children and public education,
the Court finds that a heightened scrutiny is not appropriate.

11

Puente, 76 F. Supp. 3d at 864 (emphasis in original, parallel and docket citations

12

omitted). Plaintiffs’ summary judgment arguments do not persuade the Court that this

13

conclusion was incorrect, and the Court will adhere to it.

14

Given that strict scrutiny and intermediate scrutiny do not apply here, and that

15

Plyler is not controlling, the Court is left with rational basis review. Ordinarily, courts

16

apply rational basis review in a highly deferential manner, upholding a challenged law

17

“‘if there is any reasonably conceivable state of facts that could provide a rational basis

18

for the classification.’” Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v. Beach

19

Commc’ns, Inc., 508 U.S. 307, 313 (1993)) (emphasis added). This reflects “deference to

20

legislative policy decisions” and a reluctance “to judge the wisdom, fairness, logic or

21

desirability of those choices.” LeClerc v. Webb, 419 F.3d 405, 421 (5th Cir. 2005).

22

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

23

include U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), City of Cleburne v.

24

Cleburne Living Center, 473 U.S. 432 (1985), Romer v. Evans, 517 U.S. 620 (1996), and

25

Diaz v. Brewer, 656 F.3d 1008, 1010 (9th Cir. 2011). Plaintiffs argue that these cases

26

should control if Plyler does not. But even if the Court applies the more rigorous rational

27

basis review reflected in these cases, the Arizona identity theft statutes survive.

28

- 35 -

1

C.

2

In each of these cases, the Supreme Court or Ninth Circuit found that the

3

classification in question was based on animus toward the disadvantaged group and was

4

supported by no rational basis. The Court will describe these findings.

Rigorous Rational Basis Review.

5

In Moreno, the Supreme Court invalidated an amendment to the Food Stamp Act

6

that rendered ineligible for assistance any household of unrelated individuals. 413 U.S. at

7

535-36. The Supreme Court found that the law was directed at “hippies” and was

8

“wholly without any rational basis.” Id. at 538. The Court held that a “purpose to

9

discriminate against hippies cannot, in and of itself and without reference to (some

10

independent) considerations in the public interest, justify the 1971 amendment.” Id. at

11

534-35.

12

In Cleburne, the Supreme Court invalidated a zoning ordinance that required a

13

special permit for a home for the mentally disabled. The Court noted that such special

14

permits were not required by the city for “a boarding house, nursing home, family

15

dwelling, fraternity house, or dormitory,” and found that the permit requirement bore no

16

rational relationship to any legitimate interest asserted by the city. 473 U.S. at 449.

17

Because the permit requirement was based solely “on an irrational prejudice” against the

18

mentally disabled, the Supreme Court held that it violated equal protection. Id.

19

In Romer, the Supreme Court invalidated an amendment to the Colorado

20

constitution that prohibited any action by state government to protect individuals from

21

discrimination based on their sexual orientation. The Court found that the broad and

22

undifferentiated treatment of an explicitly named group was not rationally related to the

23

asserted government interests of protecting freedom of association and conserving

24

resources to fight discrimination against other groups. 517 U.S. at 636. The Court found

25

that “the amendment seems inexplicable by anything but animus toward the class it

26

affects; it lacks a rational relationship to legitimate state interests.” Id. at 632.

27

In Diaz, the Ninth Circuit applied Moreno to affirm a preliminary injunction

28

against an Arizona law that made same-sex partners of state employees ineligible for

- 36 -

1

healthcare benefits. The court found that the law was not rationally related to Arizona’s

2

asserted interests in promoting marriage, saving costs, or reducing administrative burden.

3

656 F.3d at 1015. The court found that the law was motivated by “a bare desire to harm a

4

politically unpopular group.” Id. (internal quotations and ellipses omitted).

5

There is a common thread in these cases. Each found that the challenged law had

6

no plausible rational basis, leaving animus as the only explanation for the enactment. As

7

this Court noted in its preliminary injunction order: “If a court finds that the only actual

8

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

9

the maxim that ‘a bare congressional desire to harm a politically unpopular group cannot

10

constitute a legitimate governmental interest.’” Puente, 76 F.3d at 865 (quoting Moreno,

11

413 U.S. at 534) (emphasis added).

12

D.

13

Plaintiffs argue that the Arizona identity theft statutes are invalid under rigorous

14

rational basis review because they were motivated solely by animus against unauthorized

15

aliens. In support of this assertion, Plaintiffs cite statements from three legislators –

16

Senator Pearce, Representative Barnes, and Senator Huppenthal – which Plaintiffs

17

characterize as “hostile, hyperbolic, and misleading.” Doc. 588 at 28-29. Plaintiffs then

18

assert, quite remarkably, that “[t]he failure of other legislators supporting the measures to

19

challenge these animus-laced statements is further indication of an overall climate of

20

hostility toward undocumented immigrants.” Id. at 29. Plaintiffs also rely on what non-

21

legislators – regular citizens – said to some legislators, as though such statements

22

accurately reflect what the legislators were thinking.

Application of Rigorous Rational Basis Scrutiny.

23

All of this strikes the Court as a dangerous venture into legislative mind-reading.

24

As noted above, the Supreme Court has cautioned strongly against voiding a statute on

25

the basis of “what fewer than a handful of Congressmen said about it.” Hunter, 471 U.S.

26

at 228. “What motivates one legislator to make a speech about a statute is not necessarily

27

what motivates scores of others to enact it, and the stakes are sufficiently high for us to

28

eschew guesswork.” Id. All the more, a court should not, as Plaintiffs suggest, rely on

- 37 -

1

what a majority of legislators did not say, or what carefully selected citizens said.

2

To be sure, the Court has concluded that the identity theft statutes were motivated

3

in part by their potential effect on unauthorized aliens. But the Court cannot conclude

4

that this was the Arizona legislature’s only motive. As already discussed, the Court finds

5

ample evidence that combatting identity theft was another purpose of the statutes, both

6

when they were enacted and when they were later amended. The Ninth Circuit agrees.

7

Puente, 821 F.3d at 1102. The Court also finds that this legislative purpose was entirely

8

legitimate given the scope of Arizona’s identity theft problem and the damage it inflicted

9

annually on the State and its residents.

10

This legitimate state interest distinguishes this case from the rigorous rational

11

basis cases discussed above. The Arizona identity theft laws are not “wholly without any

12

rational basis” like the food stamp statute in Moreno. 413 U.S. at 538. They are not

13

based solely “on an irrational prejudice” like the special permit requirement in Cleburne.

14

473 U.S. at 449. They are not “inexplicable by anything but animus toward the class

15

[they affect]” like the constitutional amendment in Romer. 517 U.S. at 632. And they

16

are not motivated by “a bare desire to harm a politically unpopular group” like the law in

17

Diaz. 656 F.3d at 1015.

18

Plaintiffs argue that “the state fails to explain how it could be rational to single out

19

unauthorized aliens (or even identity theft in the employment context generally) for

20

particularly harsh treatment.”

21

unauthorized aliens; they are facially neutral. They criminalize the actions of every

22

person who steals the identity of another to obtain employment – citizen, authorized

23

alien, or unauthorized alien.

24

employment context. As amended, they apply to a broad range of conduct beyond

25

employment, as they have since their passage in 1996 and 2005. See A.R.S. §§ 13-2008,

26

13-2009. And the focus of the 2007 and 2008 amendments on the employment context

27

was entirely rational given that Arizona led the nation in identity theft and fully one-third

28

of those crimes occurred in employment.

Doc. 588 at 31.

But the statutes do not single out

Nor do the statutes single out identity theft in the

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1

Plaintiffs also complain that “H.B. 2779 § 1 imposed harsher punishment for

2

identity theft ‘to obtain employment’ even if committed with the consent of the other

3

person whose information is used,” and that “this distinguishes A.R.S. § 13-2009(A)(3)

4

from all other types of identity theft punished by A.R.S. § 13-2009(A) and A.R.S. § 13-

5

2008(A).” Doc. 588 at 31. But given the magnitude of the identity theft problem

6

Arizona faced in the employment context – employment accounted to 39% of all identity

7

theft complains in 2006 – the Court cannot conclude that the legislature acted irrationally

8

when it focused on employment fraud for harsh penalties. Nor can the Court conclude

9

that falsely using another person’s identity to obtain employment is harmless simply

10

because the other person consents. The employer is still defrauded, as are the federal and

11

state governments to which employment taxes are paid.

12

The rationality of Arizona’s action is confirmed by the fact that all 50 states have

13

enacted identity theft statutes since Arizona took the lead in 1996. http://www.ncsl.

14

org/research/financial-services-and-commerce/identity-theft-state-statutes.aspx. Congress

15

has done the same, passing 18 U.S.C. § 1028 to criminalize the theft of another’s identity.

16

Indeed, the legislative history for § 1028 strongly encourages “State and local

17

governments . . . to compliment the Federal role in this area with appropriate preventive

18

and enforcement measures.” S. Rep. No. 105-274, at 9 (1998). There can be little doubt

19

that criminalizing the theft of another’s identity is a rational government action.

20

The Court concludes, on the basis of undisputed facts, that amendment of the

21

identity theft statutes in 2007 and 2008 was not motivated solely by animus against

22

unauthorized aliens. Arizona was addressing a major criminal problem that inflicted

23

serious harm on Arizona residents.

24

rationally related to this legitimate state interest, this case is not like the rigorous rational

25

basis cases discussed above, and the Court concludes that the identity theft laws survive

26

rigorous rational basis review. A fortiori, the Court concludes that the laws survive the

27

less-rigorous traditional rational basis review. As a result, the Court will enter summary

28

judgment in favor of Defendants on Plaintiffs’ equal protection claims.

Because the resulting facially neutral laws are

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1

V.

Maricopa County’s Monell Liability.

2

Under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691-94 (1978),

3

municipal liability attaches when a policy or custom of the local government produced a

4

plaintiff’s alleged constitutional deprivation. See also Fogel v. Collins, 531 F.3d 824,

5

834 (9th Cir. 2008). “For purposes of liability under Monell, a policy is a deliberate

6

choice to follow a course of action . . . made from among various alternatives by the

7

official or officials responsible for establishing final policy with respect to the subject

8

matter in question.” Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citation and

9

internal quotations omitted). A municipal policy may include the decision to enforce a

10

state law. Evers v. Custer Cnty., 745 F.2d 1196, 1203-04 (9th Cir. 1984).

11

Whether a state official is a final policy maker for purposes of municipal liability

12

depends on state law, Streit v. County of Los Angeles, 236 F.3d 552, 560 (9th Cir. 2001),

13

but the ultimate determination of § 1983 liability is a matter of federal law, Goldstein v.

14

City of Long Beach, 715 F.3d 750, 761 (9th Cir. 2013). “[C]ases on the liability of local

15

governments under § 1983 instruct us to ask whether governmental officials are final

16

policymakers for the local government in a particular area, or on a particular issue.”

17

McMillian v. Monroe County, 520 U.S. 781, 785 (1997) (internal citations omitted).

18

A.

19

The Court has already determined that Sheriff Arpaio is a final policymaker for

20

Maricopa County, and that Maricopa County is therefore liable for his law-enforcement

21

decisions in this case. Defendants ask the Court to reach a different decision in this

22

order, but the Court declines to do so for reasons stated in its preliminary injunction

23

ruling and in its ruling on Defendants’ motion for reconsideration. See Puente, 76 F.

24

Supp. 3d at 867; Doc. 164. The Court again notes that every judge to have considered

25

this issue has found that the County has Monell liability for the Sheriff’s actions. See

26

United States v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1083-84 (D. Ariz. 2012); Mora v.

27

Arpaio, No. CV-09-1719-PHX-DGC, 2011 WL 1562443, at *7 (D. Ariz. Apr. 25, 2011);

28

Lovejoy v. Arpaio, No. CV09-1912-PHX-NVW, 2010 WL 466010, at *12 (D. Ariz. Feb.

County Sheriff.

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1

10, 2010); Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1038-39 (D. Ariz. 2009);

2

Guillory v. Greenlee Cty., No. CV05-352TUC DCB, 2006 WL 2816600, at *3-5 (D.

3

Ariz. Sept. 28, 2006).

4

This County’s liability includes the Sheriff’s decision to enforce the Arizona

5

identity theft and forgery statutes through the workplace investigations that involved the

6

seizure of Forms I-9 and attached documents. Defendants concede Plaintiffs’ allegation

7

that Form I-9 documents were regularly seized as part of the workplace investigations

8

discussed above. Doc. 621, ¶ 80; Doc. 573, ¶ 80.

9

B.

County Attorney.

10

Defendant Maricopa County asks the Court to rule on whether County Attorney

11

Montgomery is an official policymaker of the County for purposes of Monell liability.

12

Doc. 595 at 3. The Court has not decided this issue. Puente, 76 F. Supp. 3d at 868.

13

There is no question that Defendant Montgomery is the relevant policymaker concerning

14

the decision to prosecute fraud in the Form I-9 process; the issue is whether such a

15

decision is made on behalf of the county or the state.

16

Under Arizona law, the county attorney, like the sheriff, is an officer of the

17

county. A.R.S. § 11-401. The Arizona constitution provides that the county attorney is

18

elected by county voters. Ariz. Const. Art. 12 § 3. The county attorney must also reside

19

in the county in which he or she works, A.R.S. § 11-404, and each county is responsible

20

for determining the budget of its county attorney, A.R.S. § 11-201. While relevant, these

21

structural provisions and the fact that Arizona “statutory law lists [county] attorneys as

22

county officers is not dispositive because, as discussed in McMillian, the function of the

23

[government] attorney, including who can control the . . . attorney’s conduct is the issue.”

24

Weiner v. San Diego County, 210 F.3d 1025, 103 (9th Cir. 2000).

25

The conduct at issue in this case is the prosecution of crimes under the identity

26

theft and forgery statutes.

27

Attorney, when performing this function, “acted . . . as a policymaker for the state or for

28

the county.” Goldstein, 715 F.3d at 753. On this question, Arizona law provides a clear

The relevant question is whether the Maricopa County

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1

answer: county attorneys “conduct, on behalf of the state, all prosecutions for public

2

offenses.” A.R.S. § 11-532.

3

The issue of Maricopa County liability for the actions of a county prosecutor was

4

recently addressed by another judge in this District. See Milke v. City of Phoenix, No. CV-

5

15-00462-PHX-ROS, 2016 WL 5339693, at *17 (D. Ariz. Jan. 8, 2016). The Milke court,

6

noting the similarities between Arizona and California law, cited a recent Ninth Circuit

7

opinion addressing Monell liability for the actions of a California prosecutor. The Ninth

8

Circuit held that “it is clear that the district attorney acts on behalf of the state when

9

conducting prosecutions.”

Goldstein, 715 F.3d at 759.

Milke reached the same

10

conclusion and found that the Maricopa County Attorney is “explicitly identified as

11

acting on behalf of the state when prosecuting crimes.” 2016 WL 5339693, at *17.

12

Given the clear statutory directive in § 11-532 and the analysis in Milke and

13

Goldstein, the Court also finds that the Maricopa County Attorney acts for the state when

14

conducting criminal prosecutions. The Court accordingly holds that Maricopa County is

15

not liable under Monell for any decisions by Defendant Montgomery to bring charges

16

under the Arizona identity theft and forgery statutes based on fraud committed in the

17

Form I-9 and attached documents.9

18

VI.

Injunctive Relief.

19

Plaintiffs seek injunctive relief against Defendants Arpaio, Montgomery, and

20

Maricopa County. Doc. 191 at 40. Plaintiffs have requested that the Court permit

21

additional briefing on any injunctive relief. Doc. 538 at 44. The Court concludes that

22

additional briefing is warranted because (1) the Court has found that only actions based

23

on the Form I-9 and attachments are preempted, (2) the Court has found that Maricopa

24

County is not liable for the actions of the County Attorney, (3) Sheriff Arpaio recently

25

lost a general election and will no longer be in office to pursue the policies about which

26

Plaintiffs complain, and (4) the parties have not addressed whether expungement is an

27
9

28

While this decision might at first appear to be inconsistent with the holding that the
County is liable under Monell for actions of the Sheriff, state law contains no express
declaration that the Sheriff acts on behalf of the State when discharging his duties
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1

appropriate remedy if only the use of the Form I-9 and attachments is preempted.

2

Plaintiffs shall file a memorandum on this issue, not to exceed 15 pages, by

3

December 7, 2016. Defendants shall file a joint reply, not to exceed 15 pages, by

4

December 21, 2016. Plaintiffs shall file a 7 page reply by January 4, 2017.

5

IT IS ORDERED:

6

1.

Plaintiff’s motion for summary judgment (Doc. 538) is granted with

7

respect to preemption of Defendants’ use of the Form I-9 and attached documents, and

8

otherwise denied.

9

2.

Defendant State of Arizona’s motion for summary judgment (Doc. 510) is

10

denied with respect to preemption of Defendants’ use of the Form I-9 and attached

11

documents, granted with respect to Plaintiffs’ other preemption claims, and granted

12

with respect to Plaintiffs’ equal protection claims.

13

3.

Defendant Montgomery’s motion for summary judgment (Doc. 534) is

14

denied with respect to preemption of Defendants’ use of the Form I-9 and attached

15

documents, granted with respect to Plaintiffs’ other preemption claims, and granted

16

with respect to Plaintiffs’ equal protection claims.

17

4.

Defendant Arpaio’s motion for summary judgment (Doc. 525) is denied

18

with respect to preemption of Defendants’ use of the Form I-9 and attached documents,

19

granted with respect to Plaintiffs’ other preemption claims, and granted with respect to

20

Plaintiffs’ equal protection claims.

21

5.

Defendant Maricopa County’s motion for summary judgment on Monell

22

liability (Doc. 511) is denied with respect to Defendant Arpaio and granted with respect

23

to Defendant Montgomery.

24

6.

The motion for leave to file excess pages (Docs. 543) is granted.

25
26
27
28

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7.

Plaintiffs shall file a memorandum on the appropriate remedy in this case,

2

not to exceed 15 pages, on or before December 7, 2016. Defendants shall file a joint

3

reply, not to exceed 15 pages, on or before December 21, 2016. Plaintiffs shall file a 7

4

page reply on or before January 4, 2017.

5

Dated this 22nd day of November, 2016.

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