Escobar v. Brewer et al

Filing 33

LODGED Proposed COMPLAINT (In Intervention) re: 32 MOTION to Intervene. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Flagstaff, City of, San Luis, City of, Somerton, City of, Tolleson, City of. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons)(Rivera, Jose)

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Noel Fidel, State Bar No. 002486 MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 N. Central Ave., Suite 200 Phoenix, AZ 85012 Phone: [phone]; Fax: [phone] [e-mail] José de Jesús Rivera, State Bar No. 004604 Robert Pastor, State Bar No. 021963 Nathan J. Fidel, State Bar No. 025136 HARALSON, MILLER, PITT, FELDMAN& McANALLY, P.L.C. 2800 N. Central Ave., Suite 840 Phoenix, AZ 85006 Phone: [phone]; Fax: [phone] [e-mail] [e-mail] [e-mail] Stanley G. Feldman, State Bar No. 000838 Rebecca A. Reed, State Bar No. 023419 Jeffrey A. Imig, State Bar No. 025552 HARALSON, MILLER, PITT, FELDMAN& McANALLY, P.L.C. 1 S. Church Ave., Suite 900 Tucson, AZ 85701 Phone: [phone]; Fax: [phone] [e-mail] [e-mail] [e-mail] David L. Abney, State Bar. No. 009001 LAW OFFICE OF DAVID ABNEY 414 E. Southern Ave. Mesa, AZ 85204 Phone: [phone]; Fax: [phone] [e-mail] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MARTIN H. ESCOBAR, Plaintiff, vs. No. 4:10-CV-00249-DCB COMPLAINT

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JAN BREWER, Governor of the State of Arizona in her Official and Individual Capacity; TERRY GODDARD, the Attorney General of the State of Arizona, in his Official and Individual Capacity; the CITY OF TUCSON, a municipal corporation; and BARBARA LAWALL, County Attorney, Pima County, Defendants. CITY OF FLAGSTAFF, an Arizona chartered municipal corporation; CITY OF TOLLESON, an Arizona municipal corporation; CITY OF SAN LUIS, an Arizona municipal corporation; CITY OF SOMERTON, an Arizona municipal corporation vs. Plaintiff-Intervenors,

(In Intervention)

Assigned to: Hon. David C. Bury

STATE OF ARIZONA, a body politic; and JAN BREWER, Governor of the State of Arizona, in her Official and Individual Capacities. Defendants in Intervention.

Plaintiffs allege: JURISDICTION 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, authority to grant declaratory relief pursuant to 28 U.S.C. §2202, and pendent jurisdiction over any state law claims. 2. 3. Plaintiffs are intervenors under F.R.Civ.P. 24(b). Plaintiffs' claims present many aspects of the case and controversy defined

by the complaint in Escobar v. Brewer et al, USDC D. Ariz. No. CV10-249 TUC DCB; by the cross-claim entered by the City of Tucson in that action; and by other related

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actions subject to pending motions to consolidate with that action. These claims thus fall within this Court's supplemental jurisdiction. PARTIES 4. 5. Plaintiff City of Flagstaff is a municipal corporation and charter city in the Plaintiff City of San Luis is a general law city formed pursuant to Article State of Arizona formed pursuant to Article 13, Section 2, of the Arizona Constitution. 13, Section 1 of the Arizona Constitution and Title 9, Articles 1 and 4, of the Arizona Revised Statutes with authority to exercise all powers granted to it under the law of the State of Arizona. 6. Plaintiff City of Somerton is a general law city formed pursuant to Article 13, Section 1, of the Arizona Constitution and Title 9, Articles 1 and 4, of the Arizona Revised Statutes with authority to exercise all powers granted to it under the law of the State of Arizona. 7. Plaintiff City of Tolleson is a general law city formed pursuant to Article 13, Section 1 of the Arizona Constitution and Title 9, Articles 1 and 4. of the Arizona Revised Statutes with authority to exercise all powers granted to it under the law of the State of Arizona. 8. Defendant State of Arizona has legal authority to adopt general laws that Plaintiffs are required to enforce -- as long as those laws comply with the United States and Arizona Constitutions. 9. Defendant Jan Brewer is the Governor of the State of Arizona. As Governor she is the chief executive and highest-ranking state constitutional officer responsible for implementing the laws of Arizona in compliance with the United States and Arizona Constitutions. PLAINTIFFS' ACTION

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10.

Plaintiffs, the Cities of Flagstaff, Tolleson, San Luis and Somerton

(collectively, the "Cities"), assert this action under the Declaratory Judgment Act of 1934, 28 U.S.C. §2201. 11. This action seeks equitable relief against the "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona Senate Bill 1070 (2010 Ariz. Sess. Laws Ch. 113) as amended by Arizona House Bill 2162 (2010 Ariz. Sess. Laws Ch. 211) (collectively, the "Act"). 12. The Federal Immigration and Naturalization Act and its amendments, through the United States Constitution's Article VI Supremacy Clause, preempt the Act. See, e.g., 8 U.S.C. §§1252, 1304, and 1357. 13. To enforce the Act would unconstitutionally violate that preemption and expose the Cities to claims of constitutional violations. On the other hand, not enforcing the Act would submit the Cities to private lawsuits grounded in the Act's citizenpolicing provision A.R.S. §11-1051(H). GENERAL ALLEGATIONS 14. The State of Arizona, by enacting and mandating enforcement of the Act, seeks to control and regulate immigration in a manner that conflicts with federal immigration laws, policies, practices, and priorities. Among other provisions, the Act incorporates federal criminal statutes, making their violation an Arizona criminal offense, but establishes and mandates different penalties than those within the federal statutes on which it is based. that conduct. 15. The Cities do not, and cannot under the United States Constitution's Supremacy Clause, restrain or limit federal enforcement of immigration law within their city and town limits. Nor, however, can the Cities enforce federal immigration law to the fullest extent permitted by federal law. The Cities lack the resources and training to If not enjoined, the Act will require the Cities to implement unconstitutional laws. The Cities will confront and likely incur liability for

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do so. Further, such enforcement would conflict with federal-enforcement policies and priorities and exceed the framework established by 8 USC § 13-1357(g) for delegation of federal-immigration authority to local police agencies. The enforcement would also conflict with the training and supervision contemplated by federal law to ensure that enforcement complies with federal law and constitutional rights. The Act Attempts to Regulate Both the Presence and the Employment of Immigrants through State Criminal Law 16. The Act through A.R.S. §13-1509 creates a new state misdemeanor of "willful failure to complete or carry an alien registration document," the single element of which is "violation of 8 United States Code Section 1304(e) or 1306(2)." The Act thus makes the failure to meet certain federal immigration requirements a state law crime punishable by different penalties than the federal statutes on which it relies. 17. Although Federal law expressly preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens," A.R.S. §13-2928 ­ not through licensing but through the creation of new state law misdemeanors ­ attempts to regulate the employment of immigrants unlawfully present in the United States. 18. Specifically, A.R.S. § 13-2928 subsections (A) and (B) target employment of day laborers and criminalize potential employer and employee conduct by making it a misdemeanor both (A) to stop a vehicle and impede traffic while attempting to hire someone and transport him to work elsewhere and (B) to enter a stopped motor vehicle to be hired and transported to work elsewhere. Additionally, subsection C makes it a misdemeanor for an unauthorized alien to apply for work, solicit work in a public place, or perform work in Arizona. Citation and Release Effects 19. Under the Act, "Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States Code

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section 1373(C)". A.R.S. §11-1051B. As law enforcement agencies in the State of Arizona, the Police Department of each Plaintiff is obligated to enforce the express requirements of the Act. 20. A.R.S. §13-3903, however, provides that a person arrested for a misdemeanor or petty offense may be cited and released at the site of the arrest in lieu of being transported to a law enforcement facility. During fiscal year 2009 the Cities used this procedure for the following number of individuals: Flagstaff, 1543; San Luis, 724; Somerton, 463; and Tolleson, 1019. These instances of citation and release included arrests for criminal speeding, liquor offenses, minor drug offenses, assault, trespass, disorderly conduct, and other misdemeanor and petty offenses. The Cities do not currently condition these releases on the verification of the individual's immigration status with the federal government prior to their release. 21. Although the Cities' Police Departments routinely cooperate with federal immigration agents when, in the course of investigations, individuals are identified as aliens who may be unlawfully present in the United States, they do not have the resources to determine or seek verification of the immigration status of all persons they arrest. Most often, federal immigration enforcement agents can respond while an investigation is in process so that the Cities' police need not detain an arrestee solely on potential immigration grounds. Occasionally, when federal immigration enforcement agents cannot resolve the question of lawful presence in a timely way, a person eligible for citation and release is released and a report is forwarded to federal immigration enforcement agents. 22. On information and belief, federal immigration enforcement agents will not be able to respond with an immediate verification of the immigration status of every person who receives a criminal misdemeanor citation within the Cities' incorporated limits and within the State of Arizona as contemplated by A.R.S. §11-1051(B). 23. Thus, cities will be required to incarcerate persons pending federal verification of status who would otherwise have been released at the time of citation.

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That verification will be particularly difficult for natural-born citizens who lack a passport or other record with federal immigration agencies. The federal verification may take days, substantially increasing the costs of incarceration for the Cities, not to mention the consequences for the persons incarcerated. The Act Imposes on the Cities Vague Standards and Potential Liability Regarding Considerations of Race, Color, and National Origin 24. The Act repeatedly asserts that Arizona law enforcement officers and agencies may not consider race, color, or national origin in the implementation and enforcement of the Act "except to the extent permitted by the United States or Arizona Constitution." A.R.S. §§ 11-1051(B), 13-1509(C), 13-2928(C), and 13-2929(C). In A.R.S. § 11-1051(B), this provision applies to the exercise of reasonable suspicion in assessing whether a stopped, detained or arrested person may be an alien who is unlawfully present in the United States. 25. But the United States Constitution has been interpreted in the federal and Arizona courts to permit "Mexican ancestry" and "ethnic factors" to be considered in the enforcement of immigration laws. 26. A.R.S. § 11-1051(A) provides, "No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law." A.R.S. § 11-1051(H) further provides that any legal resident of Arizona may bring a claim in superior court to challenge any state or municipal official or agency that implements a policy that limits or restricts the enforcement of federal immigration laws "to less than the full extent permitted by federal law." 27. The Cities and their Police Departments undertake, through training and enforcement, for multiple reasons of law, public policy and community relations, to avoid engaging in what is commonly referred to as "racial profiling." 28. The Act may expose the Cities to citizen lawsuits and potential liability under A.R.S. § 11-1051(H) for a failure, in the enforcement of its provisions, to

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consider race, color, or national origin to the full, yet vague and uncertain, extent permitted by federal law. Yet the Cities also face lawsuits and potential liability for violations of equal protection to the extent that they engage in such considerations. Further Harm to the Cities 29. State law requires the Cities to adopt an annual budget effective July 1 of each year. In doing so, the Cities must weigh their multiple responsibilities, including responsibilities for public health, safety, and law enforcement; and they adopt priorities for meeting such responsibilities to the extent possible within budgetary constraints. 30. 31. The Cities' budgets will not include sufficient funds for the enforcement If compliance with the Act is not enjoined, the Cities will be obliged to of federal immigration laws to the fullest extent permitted by federal law. alter their priorities and subordinate other essential law enforcement objectives to the enforcement of federal immigration laws. This may result in decreased protection of the public from other criminal activity, decreased investigation, and decreased prosecution of violent crimes against persons and other major felonies. 32. 33. The Cities are entitled to declaratory and injunctive relief from the The Cities and their inhabitants will suffer irreparable harm unless this unconstitutionally preemptive and violative mandates of the Act. Court enjoins enforcement of the Act. The Cities have no plain, speedy and adequate remedy at law against enforcement of the Act. COUNT I FEDERAL PREEMPTION AND THE SUPREMACY CLAUSE 34. Federal Immigration law preempts the Act, as does Article VI of the United States Constitution. .... ....

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.... COUNT II UNITED STATES CONSTITUTION 4th AND 14th AMENDMENT VIOLATION 35. The Act requires the Cities to violate the United State Constitution's Fourth and Fourteenth Amendments by mandating the detention and verification of the immigration status of arrestees without reasonable suspicion, probable cause or other independent legal basis for continued detention. That eliminates the presumption of innocence and forces arrestees to prove they are authorized to be in the United States before they can be released. COUNT III UNCONSTITUTIONAL VAGUENESS 36. The Act is unconstitutionally vague because it combines a prohibition that the Cities may not consider race, color, or national origin except to an uncertain degree, with a mandate to enforce immigration law to the full extent permitted by the United States and Arizona Constitutions, and liability for private lawsuits under A.R.S. §111051(H) for failure to enforce to the full extent of federal law. COUNT IV DECLARATORY RELIEF 37. seq. RELIEF REQUEST The Cities request that this Court grant them judgment as follows: A. Declaring that enforcement of the Act would violate the United States Constitution as set forth herein; Plaintiff seeks a declaratory judgment as provided in 28 U.S.C. §2201 et.

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B. Preliminarily enjoining Defendants from any enforcement of the Act or enforcement of such provisions as the Court determines to be unconstitutional; C. Permanently enjoining Defendants from any enforcement of the Act or enforcement of such provisions as the Court determines to be unconstitutional; D. Awarding the Cities their costs and attorneys' fees; and E. Awarding such other and further relief as may be just and appropriate.
DATED this 11th day of June, 2010. MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. s/ Noel A. Fidel Noel A. Fidel and HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C. s/ Jose de Jesus Rivera Stanley G. Feldman José de Jesús Rivera and LAW OFFICES OF DAVID ABNEY. ESQ. s/ David L. Abney David L. Abney Attorneys for Plaintiffs

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