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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Puente Arizona, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-14-01356-PHX-DGC Joseph M Arpaio, et al., 13 Defendants. 14 15 This case involves the constitutionality of two Arizona statutes that criminalize the 16 act of identity theft when done with the intent to obtain or continue employment, and a 17 general Arizona statute that makes it a crime to commit forgery. Plaintiffs argue that 18 these three statutes are preempted when applied to unauthorized aliens who commit fraud 19 in the federal employment verification process or to show authorization to work under 20 federal immigration law. Plaintiffs also claim that the two identity theft statutes were 21 enacted with the purpose of discriminating against unauthorized aliens and are facially 22 invalid under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs seek 23 declaratory and injunctive relief. 24 The Parties have filed motions for summary judgment, and the Court heard oral 25 arguments on October 13, 2016. For the reasons set forth below, the Court will grant in 26 part Plaintiffs’ motion for summary judgment on the preemption claim, grant in part 27 Defendants’ motion for summary judgment on the preemption claim, and grant 28 Defendants’ motion for summary judgment on the equal protection claim. 1 I. Background. 2 For purposes of this order, the Court will refer to those who are in the United 3 States without legal authorization as “unauthorized aliens.” Plaintiffs consist of two 4 unauthorized aliens who have been convicted of identity theft felonies in Arizona for 5 using false names to obtain employment; Puente, an organization formed to protect and 6 promote the interests of unauthorized aliens and their families; and several residents of 7 Maricopa County who object to the use of their tax dollars to prosecute unauthorized 8 aliens for identity theft or forgery in the employment context. Defendants are the State of 9 Arizona, Maricopa County, Maricopa County Sheriff Joseph Arpaio, and Maricopa 10 County Attorney Bill Montgomery. 11 The Court will begin by describing relevant federal laws and regulations on the 12 employment of unauthorized aliens, and then will describe the Arizona laws challenged 13 by Plaintiffs and the prior proceedings in this case. 14 A. 15 In 1986, Congress passed the Immigration Reform and Control Act (“IRCA”). Federal Regulation of Unauthorized Alien Employment. 16 Pub. L. No. 99-603 (S. 1200). 17 employment of unauthorized aliens and created a national system for verifying whether 18 prospective employees were authorized to work in this Country. Id. § 101. The new 19 system required employers to verify the identity and work authorization of persons they 20 intend to hire. Id. Congress instructed the Attorney General to create a form on which an 21 employer would attest, under penalty of perjury, that it had verified that an employee was 22 authorized to work. Id. The prospective employee was also required to swear that he or 23 she is a United States citizen or an alien lawfully authorized to obtain employment in the 24 United States. Id. Among other provisions, the IRCA prohibited the 25 Following the passage of the IRCA, the Attorney General enacted regulations to 26 implement the employment verification system. 8 C.F.R. § 274a.2. These regulations 27 create the Form I-9 to be used in the verification process. Section 1 of the Form I-9 28 requires the employee to provide his or her name, address, date of birth, and social -2- 1 security number, and to swear under penalty of perjury that he or she is a citizen or 2 national of the United States, a lawful permanent resident alien, or an alien authorized to 3 work in the United States. In section 2, the employer identifies documents reviewed by 4 the employer to verify the employee’s identity and work authorization. The regulations 5 identify specific documents, referred to as “List A” documents, that can be used to show 6 both identity and authorization to work, such as U.S. passports, permanent resident alien 7 cards, or federal employment authorization documents. “List B” documents can be used 8 to show identity, and include items such as driver’s licenses or state, federal, or school ID 9 cards. “List C” documents can be used to show employment authorization, and include 10 social security cards and other specific federally- or tribally-issued documents. 8 C.F.R. 11 § 274a.2(b)(1)(v). A prospective employee must show the employer either a List A 12 document or a combination of List B and List C documents. 13 After the employer verifies the employee’s identity and authorization to work and 14 the Form I-9 is completed, the employer is required to maintain the form and any copies 15 it made of documents provided by the employee. The Form I-9 is not submitted to the 16 government. The intent is for employees to prove their identity and authorization to 17 work, and for employers to confirm these facts and then retain a copy of the Form I-9 as 18 proof the process was completed.1 19 The IRCA established criminal penalties for employers who fail to follow the 20 Form I-9 process. Pub. L. No. 99–603 (S 1200) § 101 (codified at 8 U.S.C. § 1324a(f)). 21 It also imposed criminal penalties on persons who knowingly forge, counterfeit, or alter 22 any of the documents prescribed for proof of identity or employment authorization. Id. 23 24 25 26 27 28 1 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. -3- 1 § 103 (codified at 18 U.S.C. § 1546). The IRCA also imposed criminal penalties on 2 persons who knowingly use a false identification document to satisfy any requirement of 3 the I-9 process. Id. 4 Four years after the enactment of the IRCA, Congress passed the Immigration Act 5 of 1990. Pub. L. 101-649. This statute added a range of civil penalties for fraud 6 committed by employees in the Form I-9 process. Id (codified at 8 U.S.C. § 1324c). 7 Congress has also enacted various immigration penalties for fraud committed to satisfy 8 the federal employment verification system. See 8 U.S.C. §§ 1182(a)(6)(c), 1227(a)(3), 9 1255(c). These criminal, civil, and immigration provisions will be discussed in greater 10 detail below. 11 B. 12 This case concerns three Arizona laws: two identity theft statutes passed in 1996 13 and 2005, and then amended in 2007 and 2008 to apply specifically to the use of false 14 identities to obtain employment, and a general forgery statute passed in 1977. As the 15 nature, history, and application of these laws are important to the issues addressed below, 16 the Court will describe them in some detail. Arizona Laws. 17 In July 1996, Arizona became the first state in the country to pass legislation 18 making identity theft a felony. S. Rep. No. 105-274, at 6 (1998). This statute, now 19 codified at A.R.S. § 13-2008, made it a crime to “knowingly take[] the name, birth date 20 or social security number of another person, without the consent of that person, with the 21 intent to obtain or use the other person’s identity for any unlawful purpose or to cause 22 financial loss to the other person.” 1996 Ariz. Legis. Serv. Ch. 205 (H.B. 2090) (West). 23 The statute has been amended several times to expand the definition of identity theft. 24 See, e.g., 2000 Ariz. Legis. Serv. Ch. 189 (H.B. 2428) (West) (broadening the statute to 25 cover “any personal identifying information” of another person). 26 In 2005, Arizona passed legislation creating a new crime of aggravated identity 27 theft. 2005 Ariz. Legis. Serv. Ch. 190 (S.B. 1058) (West). This statute, codified at 28 A.R.S. § 13-2009, designated identity theft as aggravated if it causes another to suffer an -4- 1 economic loss of $1,000 or more, or if it involves stealing the identities of three or more 2 persons. 3 Plaintiffs’ claims focus on later amendments to § 13-2008 and § 13-2009 that 4 added specific language covering identity theft committed to obtain or continue 5 employment. The first amendment was passed in 2007 as part of H.B. 2779, known as 6 the “Legal Arizona Workers Act.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West). 7 H.B. 2779 created a new statute – A.R.S. § 13-212 – which prohibits employers from 8 hiring unauthorized aliens and threatens the suspension of their business licenses if they 9 fail to comply.2 H.B. 2779 also amended the aggravated identity theft statute that had 10 been passed in 2005. Under the amended statute, a person commits aggravated identity 11 theft by knowingly taking the identity of “[a]nother person, including a real or fictitious 12 person, with the intent to obtain employment.” A.R.S. § 13-2009(a)(3). 13 In 2008, Arizona passed H.B. 2745, titled “Employment of Unauthorized Aliens.” 14 2008 Ariz. Legis. Serv. Ch. 152 (H.B. 2745) (West). The bill amended and created 15 several statutes relating to the employment of unauthorized aliens. The bill also amended 16 § 13-2008(A) – originally passed in 1996 – to make clear that identity theft is a crime 17 when committed “with the intent to obtain or continue employment.” Id. 18 Throughout the remainder of this order, the Court will refer to the 2007 and 2008 19 amendments – which are the legislative acts specifically challenged by Plaintiffs – simply 20 as “the identity theft statutes.” 21 This Court and the Ninth Circuit have recognized in previous rulings in this case 22 that the 2007-2008 legislative history of the identity theft statutes reflects “an intent on 23 the part of Arizona legislators to prevent unauthorized aliens from coming to and 24 remaining in the state.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1102 (9th Cir. 2016); 25 Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 855 (D. Ariz. 2015). Plaintiffs identify 26 numerous statements by Arizona lawmakers expressing an intent to target unauthorized 27 aliens and affect immigration with both bills. Doc. 621 at 4-8; Doc. 538 at 17-18; Doc. 28 2 The Supreme Court found this statute to be constitutional in Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011). -5- 1 575 at 16-21. For example, one of H.B. 2779’s sponsors, Representative Barnes, stated 2 that the bill was “meant to address the illegal immigration problem.” Doc. 575 at 16. 3 Senator Pearce, another sponsor of both bills, stated during a hearing on H.B. 2779 that 4 Arizona needed to do more to stop illegal immigration and that “attrition starts through 5 enforcement.” Doc. 621 at 5. Representatives Burns and O’Halloran expressed support 6 for the bills because they would take a tough stance on immigration and ensure that 7 unauthorized aliens would not become citizens. Doc. 575 at 18. When signing H.B. 8 2779 into law, Governor Napolitano noted that a “state like Arizona [has] no choice but 9 to take strong action to discourage the further flow of illegal immigration through our 10 borders.” 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West). In addition, H.B. 2779 11 and H.B. 2745 were among dozens of Arizona bills introduced during the same time 12 period which focused on unauthorized aliens. Doc. 575 at 19-20. 13 Defendants do not offer any contrary legislative history, but instead argue that the 14 statements cited by Plaintiffs are immaterial to their claims (Doc. 573 at 6-9), and that 15 “state legislative intent is irrelevant to the issue of preemption.” 16 Defendants also argue that because H.B. 2779 and H.B. 2745 contain multiple provisions, 17 the legislative history cited by Plaintiffs cannot be linked specifically to the identity theft 18 statutes. Doc. 604 at 11. The Court has already rejected this argument, finding that the 19 2007 and 2008 amendments were intended – at least in part – to target unauthorized 20 aliens and influence illegal immigration. Puente, 76 F. Supp. 3d at 856-57. Doc. 510 at 16. 21 In addition to challenging the identity theft statutes, Plaintiffs’ amended complaint 22 includes a preemption challenge to the general forgery statute, A.R.S. § 13-2002, as 23 applied to unauthorized aliens seeking employment. 24 originally enacted in 1977, and provides that a person “commits forgery if, with intent to 25 defraud,” the person “[o]ffers or presents, whether accepted or not, a forged instrument or 26 one that contains false information.” A.R.S. § 13-2002(A)(3). This statute does not 27 specifically mention employment, but Defendants do not dispute that it has been applied 28 to unauthorized aliens who commit forgery in the employment context. Doc. 534 at 19. -6- Doc. 191. This statute was 1 C. 2 On January 5, 2015, this Court preliminarily enjoined enforcement of the identity 3 theft statutes – § 13-2009(A)(3) and the portion of § 13-2008(A) that addresses actions 4 committed with the intent to obtain or continue employment – finding that Plaintiffs were 5 likely to prevail on their claim that these provisions are facially preempted under the 6 Supremacy Clause. 7 legislative history of these provisions, finding “a primary purpose and effect . . . to 8 impose criminal penalties on unauthorized aliens” and “regulate unauthorized aliens who 9 seek employment.” Id. at 855. Because Congress has comprehensively regulated the 10 field of unauthorized alien employment, the Court concluded that the statutes were likely 11 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 12 On appeal, the Ninth Circuit agreed with the Court’s characterization of the 13 purpose of the identity theft statutes, but concluded that Plaintiffs’ facial preemption 14 challenge would fail on the merits because the statutes could also be applied to citizens or 15 lawful resident aliens and therefore could be enforced “in ways that do not implicate 16 federal immigration priorities.” 17 explained: 18 19 20 21 22 23 24 25 26 27 28 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. -7- 1 D. 2 The parties have completed discovery and filed cross motions for summary 3 judgment on Plaintiffs’ as-applied preemption claim. Defendants have also moved for 4 summary judgment on Plaintiffs’ equal protection claim, and Defendant Maricopa 5 County seeks summary judgment on its liability for the conduct of Sheriff Joseph Arpaio 6 and County Attorney Bill Montgomery. Docs. 510, 511, 525, 534. After setting forth the 7 relevant legal standard for summary judgment, the Court will address preemption, equal 8 protection, and the County’s liability. 9 II. Current Procedural Setting. Legal Standard. 10 A party seeking summary judgment “bears the initial responsibility of informing 11 the district court of the basis for its motion, and identifying those portions of [the record] 12 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 13 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 14 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 15 no genuine dispute as to any material fact and the movant is entitled to judgment as a 16 matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 17 party who “fails to make a showing sufficient to establish the existence of an element 18 essential to that party’s case, and on which that party will bear the burden of proof at 19 trial.” Celotex, 477 U.S. at 322. 20 III. Preemption. 21 A. 22 “The Supremacy Clause provides a clear rule that federal law ‘shall be the 23 supreme Law of the Land; and the Judges in every State shall be bound thereby, anything 24 in the Constitution or Laws of any State to the Contrary notwithstanding.’” Arizona 25 United States, 132 S.Ct. 2492, 2500 (2012) (quoting U.S. Const. art. VI, cl. 2). Under 26 this clause, “Congress has the power to preempt state law.” Crosby v. Nat’l Foreign 27 Trade Council, 530 U.S. 363, 372, (2000). In determining whether Congress has in fact 28 preempted a state law, “‘the purpose of Congress is the ultimate touchstone.’” Wyeth v. Basic Preemption Principles. -8- 1 Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 2 (1996)). 3 The preemption doctrine consists of three well-recognized classes: express, field, 4 and conflict preemption. Arizona, 132 S.Ct. at 2500-01. Express preemption occurs 5 when Congress “withdraw[s] specified powers from the States by enacting a statute 6 containing an express preemption provision.” Id. (citing Whiting, 131 S.Ct. at 1974-75). 7 Field preemption precludes states “from regulating conduct in a field that Congress, 8 acting within its proper authority, has determined must be regulated by its exclusive 9 governance.” Id. at 2501 (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 10 115 (1992)). Conflict preemption occurs “where ‘compliance with both federal and state 11 regulations is a physical impossibility,’ Florida Lime & Avocado Growers, Inc. v. Paul, 12 373 U.S. 132, 142-43 (1963), and in those instances where the challenged state law 13 ‘stands as an obstacle to the accomplishment and execution of the full purposes and 14 objectives of Congress,’ Hines [v. Davidowitz ], 312 U.S. [52,] 67, (1941).” Id. 15 As noted by the Ninth Circuit in this case, the Court begins with a presumption 16 that application of the identity theft and forgery statutes to unauthorized aliens is not 17 preempted. Puente, 821 F.3d at 1104. The Supreme Court has long held that “courts 18 should assume that ‘the historic police powers of the States’ are not superseded ‘unless 19 that was the clear and manifest purpose of Congress.’” Arizona v. United States, 132 20 S.Ct. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see 21 also Wyeth, 555 U.S. at 565. 22 This case clearly implicates historic police powers. As already noted, § 13-2008 23 was the first identity theft statute passed by a state in the United States. More than a 24 decade later, “[b]etween 2006 and 2008, Arizona had the highest per-capita identity theft 25 rates in the nation, and one third of all identity theft complaints in the state involved 26 employment-related fraud.” 27 contradiction from Plaintiffs, that some 860,000 identity thefts and 270,000 cases of 28 personal information theft occur annually in Arizona. Doc. 584, ¶ 6. Defendants’ expert, Puente, 821 F.3d at 1002. -9- Defendants assert, without 1 Dr. Cohen, found that Arizona residents are 2.5 times more likely to be victims of 2 identity theft than average Americans, and that Arizona residents incur between $2.8 and 3 $5.1 billion in annual costs from identity theft. Id., ¶ 13. 4 Protecting residents against fraud, including fraud committed in the employment 5 context, plainly falls within the historic police powers of the State. To overcome the 6 resulting presumption against preemption, therefore, Plaintiffs must show that 7 “Congress’s intent to preempt the challenged state statutes is ‘clear and manifest.’” 8 Puente, 821 F.3d at 1104. In addition, as the Supreme Court has said, laws within the 9 historic police powers of the states “must do ‘major damage’ to ‘clear and substantial’ 10 federal interests before the Supremacy Clause will demand that [they] be overridden[.]” 11 Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013) (quoting Hisquierdo v. Hisquierdo, 439 12 U.S. 572, 58 (1979)). 13 B. 14 Plaintiffs assert that Congress intended to preempt Arizona from applying its 15 identity theft and forgery statutes to unauthorized aliens who commit fraud in obtaining 16 employment. Plaintiffs do not claim that the laws have been applied unjustly to innocent 17 unauthorized aliens. Rather, they argue that aliens who actually steal the identity of 18 another to obtain employment cannot be prosecuted under the Arizona laws. As-Applied Preemption. 19 As the Ninth Circuit has emphasized, factual findings are very important in as- 20 applied preemption analysis. Puente, 821 F.3d at 1105. If the as-applied challenge 21 succeeds, the Arizona identity theft statutes will not be found invalid in their entirety, but 22 only as applied to employment-related fraud committed by unauthorized aliens. 23 The Supreme Court has explained that in “assessing the impact of a state law on 24 the federal scheme, we have refused to rely solely on the legislature’s professed purpose 25 and have looked as well to the effects of the law.” Gade, 505 U.S. at 105. The Ninth 26 Circuit also noted that Arizona’s purpose behind the challenged statutes is relevant but 27 not sufficient to establish preemption. Puente, 821 F.3d at 1106 n.8. Citing Gade and 28 similar cases, Defendants suggest that the Court’s as-applied analysis must focus on the - 10 - 1 practical effect of the statutes’ application. Plaintiffs disagree, arguing that the court 2 must instead “determine whether a state or local policy poses an obstacle to the 3 accomplishment and execution of the full purposes and objectives of Congress . . . [by] 4 evaluat[ing] not only its formal terms, but practical result.” Doc. 606 at 16 (emphasis 5 added). The Court sees no meaningful distinction between the “practical effect” and 6 “practical result” of the statutes’ application. By either name, the Court must determine 7 whether the challenged application conflicts with a federal scheme enacted by Congress 8 or intrudes on a field fully occupied by Congress. The touchstone remains the intent of 9 Congress, but with the presumption against preemption firmly in mind. 10 11 C. Relevant Facts. 1. Maricopa County Attorney’s Office. 12 Between 2005 and 2015, a high majority of those prosecuted by the Maricopa 13 County Attorney’s Office (“MCAO”) under the Arizona identity theft and forgery laws 14 were unauthorized aliens. Doc. 621-21 at 11; Doc. 538 at 27. During this period, MCAO 15 filed employment-related identity theft or forgery charges against 1,390 persons. Of 16 these, 90% were designated as unauthorized aliens, 3% were designated as not 17 unauthorized aliens, and 7% had unknown alien status. Doc. 584-1, ¶ 122. Both sides 18 agree, however, that the evidence does not show that this rate of prosecution is out of 19 proportion to the rate at which unauthorized aliens commit identity theft or forgery in the 20 employment context. 21 employment, both sides find it obvious that unauthorized aliens working in the United 22 States use false identifications to obtain employment. Doc. 538 at 20; Doc. 573 at 17; 23 Doc. 606 at 17 n.12. Doc. 589 at 54. Rather, because federal law prohibits their 24 Between 2005 and 2015, approximately 23 different law enforcement agencies in 25 Maricopa County submitted identity theft cases to MCAO for prosecution. Doc. 534 at 26 18. Of the 1,353 cases for which charging documents were available, approximately 90 27 percent relied on documents other than the Form I-9. Id. at 24. Thus, it appears that 28 about 10 percent of MCAO prosecutions for identity theft or forgery involved charges - 11 - 1 based at least in part on the Form I-9. Doc. 589 at 48. Apparently because he realized 2 that the IRCA includes a ban on state use of such documents (as discussed below), 3 Defendant Montgomery formally revised the MCAO’s written policy on September 17, 4 2014, to prohibit reliance on the Form I-9 as evidence in trial or for charging purposes. 5 Id., ¶ 74; Doc. 538 at 29. Other documents relied on by MCAO in identity theft and 6 forgery cases include false federal tax withholding forms (W-4), state tax withholding 7 forms (A-4), job applications, social security cards, state identification cards, driver’s 8 licenses, and federal tax reporting forms (W-2). Doc. 584, ¶ 60; Doc. 589 at 40. 9 2. Maricopa County Sheriff’s Office. 10 Defendant Arpaio acknowledges that a majority of those referred by law 11 enforcement agencies for identity theft prosecutions are unauthorized aliens. Doc. 525 at 12 9; Doc. 584-1, ¶ 120. A full 93% of MCSO’s referrals of identity theft and forgery cases 13 were derived from Defendant Arpaio’s workplace investigations. Doc. 525 at 9. These 14 investigations generally would begin with a tip from the community regarding a specific 15 place of business and its employees, usually made to telephone and email hotlines set up 16 by MCSO. Doc. 538 at 19; Doc. 525 at 12. MCSO would then investigate the tip and, if 17 evidence suggested employees of the business were engaged in identity theft or forgery, 18 apply for a warrant to search the worksite. Id. While executing the warrant, MCSO 19 would review and seize employment files and arrest individual workers believed to have 20 committed identity theft or forgery. Id. Among other records, MCSO would seize Form 21 I-9 documents. Doc. 538 at 28; Doc. 573, ¶ 80. Through 2014, MCSO conducted over 22 80 workplace investigations, resulting in the arrest of at least 806 employees who were 23 almost exclusively unauthorized aliens. Doc. 538 at 19; Doc. 573, ¶ 59. According to 24 Defendant Arpaio, MCSO was “enforce[ing] the illegal immigration laws by virtue of 25 going into businesses and locking up the employees with fake IDs.” Doc. 621, ¶ 77; 26 Doc. 573, ¶ 77. 27 D. 28 “[F]ield preemption can be inferred either where there is a regulatory framework Field Preemption. - 12 - 1 so pervasive . . . that Congress left no room for the States to supplement it or where the 2 federal interest is so dominant that the federal system will be assumed to preclude 3 enforcement of state laws on the same subject.” Valle del Sol Inc. v. Whiting, 732 F.3d 4 1006, 1023 (9th Cir. 2013) (internal quotations and brackets omitted). 5 multiplicity of federal statutes or regulations govern and densely criss-cross a given field, 6 the pervasiveness of such federal laws will help to sustain a conclusion that Congress 7 intended to exercise exclusive control over the subject matter.” Laurence H. Tribe, 8 American Constitutional Law, § 6-31, at 1206-07. “The nature of the power exerted by 9 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 - 38 - 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 - 39 - 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. - 40 - 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 - 41 - 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 - 42 - 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 - 43 - 1 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. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 44 -

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