Escobar v. Brewer et al

Filing 86

RESPONSE to Motion re 71 MOTION for Preliminary Injunction filed by Jan Brewer. (Attachments: # 1 Exhibit A)(Bouma, John)

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John J. Bouma (#001358) Robert A. Henry (#015104) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: [phone] Fax: [phone] [e-mail] Joseph A. Kanefield (#015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona, and Cross-Defendant The State of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Martin H. Escobar, Plaintiff, v. Jan Brewer, Governor of the State of Arizona, in her Official and Individual Capacity; the City of Tucson, a municipal corporation, Defendants. The City of Tucson, Cross-plaintiff, v. The State of Arizona, a body politic; and Jan Brewer, in her capacity as Governor of the State of Arizona, Cross-defendants. Case No. CV10-00249-TUC-SRB GOVERNOR BREWER'S RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

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Defendant Janice K. Brewer ("Governor Brewer") hereby responds to plaintiff's motion for preliminary injunction (the "Motion") (doc. 71). Plaintiff's Motion should be denied. First, the Motion is moot in light of this Court's order dated July 28, 2010 in the case captioned United States v. Arizona, et al., Case. No. CV10-1413-PHX-SRB (the "Federal Case"). All of the provisions of Senate Bill 1070, as amended ("SB 1070" or the "Act"), that plaintiff challenges in his Motion were the subject of this Court's order granting in part and denying in part the motion for preliminary injunction in the Federal Case. Plaintiff cannot demonstrate the likelihood or even the possibility of irreparable harm with respect to the provisions of SB 1070 that the Court enjoined. With respect to the provisions of the Act that the Court did not enjoin, plaintiff cannot demonstrate a likelihood of success on the merits. As a result, the Motion should be denied. Second, plaintiff is not entitled to a preliminary injunction because he lacks standing. As set forth in Governor Brewer's motion to dismiss (doc. 55), plaintiff lacks standing because he has failed to allege facts showing that he has suffered or will suffer any actual or imminent injury if SB 1070 is enforced. Governor Brewer respectfully submits that if the Court determines that plaintiff's Motion is not moot, the Court should first resolve the motion to dismiss and the threshold issue of standing before turning to the issue of whether preliminary injunctive relief is appropriate. Finally, even if the requested injunction were not moot and plaintiff had standing, the Motion should be denied because plaintiff has not made the requisite showing that would entitle him to a preliminary injunction. Plaintiff has not demonstrated that he is likely to succeed on the merits, that he faces any irreparable harm, that the balance of equities tips in his favor, or that an injunction is in the public interest. For these reasons, Governor Brewer respectfully requests that plaintiff's Motion be denied. This response is supported by the following Memorandum of Points and Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND On April 23, 2010, Governor Brewer signed SB 1070 into law to address the impact of unlawful immigration on Arizona and to assist understaffed federal immigration agencies through "the cooperative enforcement of federal immigration laws." SB 1070, § 1. On April 30, 2010, Governor Brewer signed HB 2162 approving various amendments to SB 1070. SB 1070, as amended, was scheduled to take effect on July 29, 2010. Plaintiff Martin H. Escobar filed his initial Complaint on April 29, 2010, and subsequently filed his First Amended Complaint ("FAC") (doc. 4) on May 18, 2010. Plaintiff lodged his Motion on June 3, 2010, and it was filed with the Clerk of the Court on July 8, 2010 (doc. 71). In his Motion, plaintiff requests that the Court enjoin all of SB 1070 and offers the following specific arguments: That Sections 2, 3, and 6 of SB 1070 are preempted by 8 U.S.C. §§ 1103(a)(10), 1252c, and 1324(c); That Section 3 conflicts with 8 U.S.C. §§ 1304(e) and 1306(a); That Section 4 and the portion of Section 5 creating A.R.S. § 13-2929 are preempted by 8 U.S.C. § 1324(a); That Sections 2, 3, 4, and 6, and the portion of Section 5 creating A.R.S. § 13-2929 are preempted by 8 U.S.C. § 1357(g); That Section 2(B) conflicts with the requirements of due process; and That Sections 2 and 6 are contrary to the Supreme Court's holding in Plyler v. Doe, 457 U.S. 202 (1982). Mot. at 3:7­4:25. On July 15 and 22, 2010, this Court held three hearings on motions for preliminary injunctions in three other cases that also challenged the validity of SB 1070, including the Federal Case. On July 28, 2010, this Court issued an order granting in part and denying in part the motion for preliminary injunction in the Federal Case (the "Injunction Order") (doc. 80). In that Order, the Court preliminarily enjoined the enforcement of the
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following provisions of SB 1070: Section 2(B) creating A.R.S. § 11-1051(B); Section 3 creating A.R.S. § 13-1509; the portion of Section 5 creating A.R.S. 13-2928(C); and Section 6 creating A.R.S. § 13-3883(A)(5). The Court, however, permitted the following provisions of the Act to take effect: Section 1; Section 2(A) and (C)-(L); Section 4; the portion of Section 5 creating A.R.S. § 13-2929; the portion of Section 5 creating A.R.S. § 13-2928(A) and (B); and Sections 7-13. II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, 129 S. Ct. 365, 374 (2008); see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). In Winter, the Supreme Court rejected the Ninth Circuit's lenient "possibility of irreparable injury" standard and made clear that injunctive relief is "an extraordinary remedy that may be awarded only upon a clear showing that the plaintiff is entitled to such relief." Stormans, 586 F.3d at 1127 (citing Winter, 129 S. Ct. at 375-76) (emphasis added). "When a plaintiff seeks to enjoin the activity of a government agency . . . his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the `dispatch of its own internal affairs.'" Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (citation omitted). "Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the `special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.'" Id. at 378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)). III. PLAINTIFF'S MOTION IS MOOT IN LIGHT OF THIS COURT'S ORDER IN THE FEDERAL CASE At the time that plaintiff filed his Motion, the Court had not yet issued its Injunction Order in the Federal Case. Now that the Court has ruled on these issues and enjoined certain provisions of SB 1070, plaintiff's Motion is moot. All of the provisions
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of SB 1070 that are the subject of plaintiff's Motion were also the subject of the Court's Injunction Order. The Court need not rule on these issues a second time. Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) ("The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.") (citing United States v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984)). A. The Court Has Ruled On All the Issues Presented In Plaintiff's Motion for Preliminary Injunction

First, there is significant overlap between the provisions of SB 1070 that plaintiff challenges in his Motion and the provisions of SB 1070 that have already been enjoined. In its Injunction Order, the Court enjoined the enforcement of Section 2(B), Section 3, the portion of Section 5 creating A.R.S. 13-2928(C), and Section 6. Likewise, plaintiff also seeks to enjoin Sections 2(B), 3, and 6. It is plain that this Court has already granted the requested relief as to these specific sections. In addition, plaintiff's Motion covers certain provisions that already have been considered by the Court but not enjoined. In particular, plaintiff's Motion challenges portions of Section 2 other than Section 2(B), Section 4, and the portion of Section 5 creating A.R.S. § 13-2929. However, these provisions were all considered by the Court and not enjoined. In the Injunction Order, this Court specifically rejected preemption challenges by the United States to Section 4 and the portion of Section 5 creating A.R.S. § 13-2929. Although the United States withdrew its challenge to Section 4 at the hearing on its motion for preliminary injunction,1 the Court specifically held that Section 4 makes only a "minor change" to Arizona's human smuggling statute and "[n]othing about the section standing alone warrants an injunction." Injunction Order at 23:16-18. As a result, the Court determined that the plaintiff was "not likely to succeed on a claim that Section 4 of S.B. 1070 is preempted by federal law." Id. Likewise, this Court has already rejected a preemption challenge to the portion of Section 5 creating A.R.S. § 13-2929. The Court specifically held that the plaintiff was "not likely to succeed on its claim that A.R.S. § 131

See Tr. of Prelim. Inj. Hr'g, July 22, 2010, at 5:11-20.
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2929 is an impermissible regulation of immigration" under federal law. Injunction Order at 28:9-13. In addition, the Court declined to enjoin all of Section 2, and allowed all portions other than Section 2(B) to take effect. Although plaintiff's motion refers to Section 2 in general, he does not mention any specific provisions of Section 2 other than Sections 2(A), 2(B), and 2(H). Likewise, the United States focused on the same provisions in the Federal Case, and Sections 2(A) or 2(H) were plainly litigated at the injunction hearing in the Federal Case. Specifically, the United States argued in its motion for preliminary injunction that both Section 2(A) and Section 2(H) of SB 1070 should be preempted. See United States' Mot. for Prelim. Inj. (doc. 27 in the Federal Case) at 14:20-23 (arguing against Section 2(H)) and 15:8-13 (arguing against Section 2(A)). The United States also argued at the preliminary injunction hearing that Section 2(A) and Section 2(H) were improper and should be preempted. See Tr. of Prelim. Inj. Hr'g, July 22, 2010 (relevant excerpts attached as Exhibit A) at 18:23-19:4 (arguing against Section 2(A) and 2(H)). Notwithstanding these arguments, the Court did not enjoin any portions of Section 2 other than Section 2(B). B. This Court's Ruling Renders Plaintiff's Motion Moot

Plaintiff faces no irreparable harm from Sections 2(B), 3, and 6 of the Act because the Court has already enjoined these provisions. See New York v. Seneci, 817 F.2d 1015, 1017 (2d Cir. 1987) (dismissing claim for an injunction when another court already granted "all of the injunctive relief requested in the present case"); Lee v. Boening, No. 94-35909, 1996 U.S. App. LEXIS 7690, at *2 (9th Cir. Mar. 26, 1996) (affirming decision by district court to deny motion for preliminary injunction as moot when another court had already issued an injunction covering the same conduct). With respect to the provisions of SB 1070 not enjoined, plaintiff is not entitled to an injunction because he is not likely to succeed on the merits of those specific

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challenges.2 As noted above, the Court has specifically held that it is not appropriate for Section 4 to be enjoined and that the United States is not likely to succeed on the merits of its challenge to the portion of Section 5 creating A.R.S. § 13-2929. The same holds true for the portions of Section 2 other than Section 2(B), which the Court declined to enjoin despite the specific requests of the United States. In his Motion, plaintiff speculates that his likelihood of success "is underscored by the success of other lawsuits challenging the constitutionality of laws similar to (but not as extreme as) the Act." Mot. at 28:20-22. Applying this principle to this Motion, this Court's decision not to enjoin these portions of SB 1070 is a strong indication that plaintiff is unlikely to succeed on these claims. More generally, plaintiff has not identified any other reason why an injunction in this case would do anything other than duplicate the injunction already entered in the Federal Case and require the parties and the Court to engage in unnecessary work. The terms of the injunction in the Federal Case specifically bind Governor Brewer and the State of Arizona. Likewise, the City of Tucson (the other defendant in this case) has represented to the Court that it considers itself bound by the injunction in the Federal Case and has withdrawn its own motion for preliminary injunction. See Stipulation Regarding Withdrawal of the City of Tucson's Motion for Preliminary Injunction (doc. 82).3 IV. PLAINTIFF LACKS STANDING BECAUSE HE HAS NOT SUFFERED NOR IS HE LIKELY TO SUFFER AN INJURY-IN-FACT If the Court determines that plaintiff's Motion is not moot, Governor Brewer respectfully submits that the Court should resolve her motion to dismiss the First Amended Complaint (doc. 55) before turning to the merits of plaintiff's claim for injunctive relief. As the Ninth Circuit has observed, courts should "assess the parties' standing before proceeding to the merits of their dispute." Long Beach Area Chamber of
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Governor Brewer's substantive arguments regarding plaintiff's likelihood of success on the merits are set forth in greater detail below at pages 8-15.

Before filing this response, Governor Brewer's counsel requested that plaintiff stipulate to either the withdrawal of his Motion or a stay of injunctive relief proceedings pending the appeal of the Injunction Order. Plaintiff declined to stipulate to either a withdrawal of the Motion or a stay.
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Commerce v. City of Long Beach, 603 F.3d 684, 689 (9th Cir. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); see also Cox v. City of Dallas, 256 F.3d 281, 303 (5th Cir. 2001) ("Standing is a jurisdictional doctrine that the Supreme Court has held must be decided before the merits of a case."). As set forth in Governor Brewer's motion to dismiss, there are serious questions as to plaintiff's standing to raise these claims. To have standing, a plaintiff must allege facts that demonstrate "an injury in fact ­ an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (internal quotations and citation omitted). Plaintiff, a police officer with the City of Tucson, does not allege that he has actually suffered any injury relating to SB 1070. Instead, he claims that he does not intend to enforce SB 1070 and expresses concern that "he will be subject to (among other things) discipline by Defendant City of Tucson." FAC ¶¶ 68-71. However, plaintiff's claimed risk of being disciplined and suffering injury has virtually disappeared in light of the Court's Injunction Order in the Federal Case preliminarily enjoining certain provisions of SB 1070. As alleged in the First Amended Complaint, plaintiff contends that he "does not believe" he can enforce the Act "[a]bsent a judicial declaration that the Act is lawful." FAC ¶¶ 68-70. This Court's ruling, however, provides plaintiff with the support he needs to enforce the remaining portions of the Act. As discussed above, all of the portions of SB 1070 challenged by plaintiff in his Motion have either been enjoined or allowed to take effect over the challenge of the United States. Certainly, plaintiff will not be called upon to enforce any of the provisions of SB 1070 that have been enjoined in light of the City of Tucson's representation to the Court that it considers itself bound by the injunction. (Doc. 82). As a result, plaintiff will not be enforcing the enjoined provisions of the Act. With respect to the provisions that have not been enjoined, this Court has made a specific determination that an injunction is not appropriate. Now that the Court has issued its order, nothing supports plaintiff's refusal to enforce the law other than his unsupported, subjective opinion about its validity.
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In any event, and even before the Court issued its injunction, plaintiff failed to identify any actual or imminent harm that would grant him standing to pursue these claims. As set forth in greater detail in Governor Brewer's motion to dismiss, plaintiff has not alleged that he has suffered any actual injury or will suffer any imminent injury if SB 1070 takes effect. See Mot. to Dismiss (doc. 55) at 4-9. V. PLAINTIFF IS NOT OTHERWISE ENTITLED TO A PRELIMINARY INJUNCTION Even if plaintiff's Motion were not moot, and even if plaintiff somehow demonstrated standing, he still would not be entitled to a preliminary injunction for the additional reasons set forth below. A. Plaintiff Is Not Likely to Succeed on the Merits

Plaintiff's request for a preliminary injunction should be denied because plaintiff has not met his burden of establishing that he is likely to succeed on the merits of his claims. See Doe v. Reed, 586 F.3d 671, 681 n.14 (9th Cir. 2009), aff'd by 130 S. Ct. 2811 (2010) (concluding that plaintiffs failed to satisfy the first Winter factor and declining to examine the three remaining factors); Reed v. Town of Gilbert, 587 F.3d 966, 974 (9th Cir. 2009) (affirming the denial of a preliminary injunction on First Amendment and Equal Protection claims). Further, plaintiff's request that the Court enjoin enforcement of SB 1070 in its entirety is undeniably overbroad, as plaintiff's First Amended Complaint addresses the alleged unconstitutionality of only a few of SB 1070's provisions. See Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 886 (9th Cir. 2008) ("[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions.") (internal citation omitted). This is especially true where, as here, the Act contains a severability clause. See SB 1070, § 12(A). 1. Plaintiff has a heavy burden of demonstrating that the challenged provisions of SB 1070 are facially unconstitutional

Plaintiff's pre-enforcement challenge to the constitutionality of SB 1070 "seeks to
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invalidate the statute on its face." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). "[A] plaintiff can only succeed in a facial challenge by `establish[ing] that no set of circumstances exists under which the Act would be valid.'" Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). When considering a facial challenge, the court "must be careful not to go beyond the statute's facial requirements and speculate about `hypothetical' or `imaginary' cases." Id. at 449-50 (citing United States v. Raines, 362 U.S. 17, 22 (1960)). Here, plaintiff will not succeed on the merits of his facial challenges to SB 1070 because federal law does not preempt the Act and because plaintiff has not articulated how SB 1070, on its face, violates due process or the Supreme Court's decision in Plyler v. Doe. 2. Plaintiff's Amended Complaint does not raise a valid claim that federal law preempts any provision of SB 1070

In his Amended Complaint, plaintiff alleges that three provisions of the Immigration and Nationality Act ("INA") preempt SB 1070. See FAC ¶¶ 63-66. In his Motion, plaintiff argues that certain provisions of SB 1070 allegedly conflict with the three provisions of the INA identified in his Amended Complaint plus three additional provisions of the INA. Mot. at 13:23-25.4 "Conflict preemption" is present only "when `compliance with both State and federal law is impossible, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Ariz. Contractors Ass'n v. Napolitano, No. CV07-1355-PHX-NVW, 2007 U.S. Dist. LEXIS 96194, at *25 (D. Ariz. Dec. 21, 2007) (citations omitted).5 Plaintiff "A proper motion for injunctive relief must relate to the allegations of the complaint and seek an outcome that may ultimately be available in the action." Muhammad v. Dir. of Corr., No. CIV S-07-0375 GEB GGH P, 2010 U.S. Dist. LEXIS 5534, at *6 (E.D. Cal. Jan. 5, 2010). Accordingly, the court may not consider "matters extraneous to the complaint" or "disputes outside the complaint" on motions for preliminary injunction. Id. at *8; see also Jones v. Horel, No. C 08-4077 MHP (pr), 2009 U.S. Dist. LEXIS 5728, at *8 (N.D. Cal. Jan. 21, 2009). 5 "Federal preemption can be either express or implied." Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 863 (9th Cir. 2009), cert. granted by 78 U.S.L.W. 3762 (U.S. June 28, 2010); Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008). Implied preemption in the immigration context exists if: (1) the state law purports to regulate immigration, an exclusively federal power; (2) federal law occupies the field; or (3) the
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has the burden of proving preemption. We Are Am./Somos Am., Coalition of Ariz. v. Maricopa Cnty. Bd. of Supervisors, 594 F. Supp. 2d 1104, 1114 n.5 (D. Ariz. 2009). Plaintiff must also overcome the presumption, which the Supreme Court has held applies "[i]n all pre-emption cases, . . . that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (citation omitted). All of the preemption allegations in plaintiff's Amended Complaint and all but one of the preemption arguments plaintiff raises in his Motion are distinct from the preemption arguments the United States made in the Federal Case and fail as a matter of law.6 i. 8 U.S.C. § 1103(a)(10) does not conflict with the Act

Plaintiff first asserts that 8 U.S.C. § 1103(a)(10) somehow preempts Sections 2, 3, 4, and 6 (A.R.S. §§ 11-1051, 13-1509, 13-2319 and 13-3883(A)(5)) because the Act's provisions authorize state and local law enforcement officers to enforce federal immigration laws without first obtaining authorization from the Attorney General that an "actual or imminent mass influx of aliens" requires the assistance of state and local law enforcement officials. Mot. at 14:6-20.7 Nothing in § 1103(a)(10), however, limits the circumstances in which state and local law enforcement officers may assist the federal government in the enforcement of the immigration laws. Plaintiff cites no case or authority in support of his argument. Indeed, state and local law enforcement officers have long had the authority to assist the federal government in enforcing the immigration laws. See, e.g., 8 U.S.C. § 1357(g)(10); Samayoa-Martinez v. Holder, 558 F.3d 897 (9th state regulation conflicts with federal law. See De Canas v. Bica, 424 U.S. 351, 355-63 (1976). Plaintiff does not argue in his Motion that SB 1070 purports to regulate immigration or that federal law occupies the field. Should the Court choose to consider this argument, however, Governor Brewer has fully addressed the argument in her Motion to Dismiss and incorporates that argument in this response. See Mot. to Dismiss (doc. 55) at 11:8-14:23. 6 The sole remaining argument ­ that 8 U.S.C. §§ 1304(e) and 1306(a) preempt Section 3 ­ is not alleged in plaintiff's Amended Complaint and, thus, should not provide a basis for plaintiff to obtain preliminary injunctive relief. Even if plaintiff had properly raised this argument, it is moot because the Court has already enjoined Section 3.
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Cir. 2009). ii. 8 U.S.C. § 1252c(a) does not conflict with the Act

Plaintiff next argues that the Act is "far broader" than 8 U.S.C. § 1252c(a), which authorizes "state and local law enforcement officials to arrest and detain certain illegal aliens" in certain circumstances. Mot. at 15:1-16:9. The only federal court to consider this argument has flatly rejected it. See United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297-1300 (10th Cir. 1999). In Vasquez-Alvarez, the defendant moved to suppress "his post-arrest statements, fingerprints, and identity" after an Oklahoma police officer arrested him based solely on the fact that he was an illegal alien. The defendant claimed that, under 8 U.S.C. § 1252c, state and local police officers have the authority to "arrest an illegal alien only when the INS has confirmed, before the arrest, that the alien has previously been convicted of a felony and has, since that conviction, been deported or left the United States." Id. at 1295. The Tenth Circuit squarely rejected the defendant's argument, and held that to interpret § 1252c as preempting state law "would both contradict the plain language of § 1252c and give the statute an interpretation and effect that Congress clearly did not intend." Id. at 1300. iii. 8 U.S.C. § 1324(c) does not conflict with the Act

Plaintiff next asserts that 8 U.S.C. § 1324, which "establishes criminal penalties for smuggling, transporting, concealing, and harboring undocumented immigrants," preempts Section 2 (A.R.S. § 11-1051), Section 3 (A.R.S. § 13-1509), and Section 6 (A.R.S. § 133882(A)(5)) because these provisions of the Act are "far broader" than federal law.8 Mot. at 18:4-10. But a mere difference between A.R.S. § 13-2319 and the federal smuggling statute (8 U.S.C. § 1324) does not constitute a conflict. See Ariz. Contractors Ass'n, 2007 U.S. Dist. LEXIS 96194, at *25. The fact the Act is broader than the federal statute neither impedes the federal government's ability to prosecute persons for smuggling under

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Plaintiff did not make this allegation in his Amended Complaint. Plaintiff did not make this allegation in his Amended Complaint.
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its smuggling statute (8 U.S.C. § 1324) nor makes it impossible for a person to comply with both laws. Plaintiff also contends that Section 4 (A.R.S. § 13-2319) and Section 5 (A.R.S. § 13-2929(F)) are preempted because they allegedly "add to the specific penalties enacted by Congress for violations of Section 1324(a)." Mot. at 18:11-16. It has long been settled that "[t]he same act may offend the laws of both the state and the federal government and may be prosecuted and punished by each." State v. Barragan-Sierra, 219 Ariz. 276, 287, 196 P.3d 879, 890 (App. 2008) (citing Abbate v. United States, 359 U.S. 187, 194 (1959)). In fact, at least two courts in Arizona have already addressed claims that 8 U.S.C. § 1324 preempts A.R.S. § 13-2319 and held that nothing in "the language or the legislative history of the INA, [indicates] that `Congress intended to preclude harmonious state regulation touching on the smuggling of illegal aliens.'" We Are America, 594 F. Supp. 2d at 1112 (quoting Barragan-Sierra, 219 Ariz. at 287, 196 P.3d at 890).9 iv. 8 U.S.C. § 1357(g) does not conflict with the Act

Plaintiff also argues that 8 U.S.C. § 1357(g) preempts various provisions of the Act because it supposedly "nullifies Section 1357(g)(1) by unilaterally compelling all state and local law enforcement officers in Arizona to enforce federal immigration law . . . without a Section 1357(g)(1) agreement with the [Attorney General]." Mot. at 21:9-11 (emphasis in original). But courts have routinely recognized state and local officers' authority ­ without reference to § 1357(g) ­ to "investigate and make arrests for violations of federal immigration laws." Vasquez-Alvarez, 176 F.3d at 1296 (citing cases); Martinez-Medina v. Holder, No. 06-75778, 2010 WL 2055675, at *2-3 (9th Cir. May 25,

Notably, the Barragan-Sierra court also held that A.R.S. § 13-2319 neither conflicted with federal law nor stood as an obstacle to federal objectives because "to a large extent, Arizona's objectives mirror federal objectives." Id. (emphasis added). The same holds true for A.R.S. § 13-2929, which prohibits "transporting, concealing, and harboring undocumented immigrants" while the offender is in violation of a criminal offense. Because A.R.S. §§ 13-2319 and 13-2929 do not stand as "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" ­ and plaintiff does not contend otherwise ­ there is no conflict preemption.
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2010); United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001).10 A 1357(g) agreement essentially deputizes state and local officers to function as federal immigration officers. SB 1070, by contrast, does not delegate federal authority. SB 1070 provides only the circumstances when Arizona's law enforcement officers may assist the federal government in the identification and apprehension of persons who are in violation of federal immigration laws. See A.R.S. § 11-1051. Section 1357(g)(10) expressly permits such assistance from state and local authorities. v. The Court has already addressed plaintiff's new argument that 8 U.S.C. §§ 1304(e) and 1306(a) conflict with the Act

In his Motion, plaintiff argues for the first time that 8 U.S.C. §§ 1304(e) and 1306(a) preempt Section 3 (A.R.S. § 13-1509(A)). Mot. at 16:10-17:19. Because plaintiff did not make this allegation in his Amended Complaint, it should not provide a basis for plaintiff to obtain preliminary injunctive relief. See, e.g., Muhammad, 2010 U.S. Dist. LEXIS 5534, at *6; Jones, 2009 U.S. Dist. LEXIS 5728, at *8. In any event, as stated above, this argument is moot because the Court has already enjoined Section 3 on these grounds. Nevertheless, while recognizing that the Court has already held that the United States is likely to prevail on its claim that federal law preempts Section 3, Governor Brewer maintains her position that Hines v. Davidowitz, 312 U.S. 52 (1941) ­ the sole authority upon which plaintiff relies to support his argument ­ does not compel the conclusion that Section 3 is preempted. In Hines, the Supreme Court held that a state statute requiring aliens to register with the State of Pennsylvania in addition to the registration under federal law conflicted with the federal government's provision "for alien registration in a single integrated and all-embracing system." 312 U.S. at 56, 74. Here, by contrast, A.R.S. § 13-1509(A) does not require anyone to register with the State. In fact, A.R.S. § 13-1509(A) conforms to federal law by imposing the Because law enforcement officers' authority under SB 1070 is distinct from law enforcement officers' authority under a § 1357(g) agreement, plaintiff's lengthy analysis of § 1357(g) agreements and ICE's training standards (see Mot. at 21:12-26:28) is simply irrelevant to his claims.
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same misdemeanor penalties as federal law for violations of 8 U.S.C. § 1304(e) or § 1306(a).11 It is settled that the INA does not preclude harmonious state legislation. De Canas v. Bica, 424 U.S. 351, 358 (1976). Where "[f]ederal and local enforcement have identical purposes," preemption does not occur. Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other grounds by Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999)). 3. Plaintiff's other constitutional challenges also fail i. The Act does not violate due process

Plaintiff next argues that Section 2(B) (A.R.S. § 11-1051(B)) somehow violates due process requirements by requiring law enforcement officers to detain arrested persons until their immigration status is determined, even if the person otherwise qualifies for release. Mot. at 27:7-24. As an initial matter, again, plaintiff lacks standing to pursue this claim because he has not alleged any actual or imminent threat that he will be arrested and indefinitely detained. But even if plaintiff had standing to pursue this claim, he cannot establish that SB 1070 runs afoul of the Due Process Clause on its face. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). "Length of detention will rarely by itself offend due process . . . ." United States v. Millan, 4 F.3d 1038, 1044 (2d Cir. 1993). The hypothetical scenarios plaintiff posits do not and cannot provide a basis to invalidate Section 2(B) (A.R.S. § 111051(B)) on its face. See Wash. State Grange, 552 U.S. at 449-50; Raines, 362 U.S. at 22. ii. The Act does not violate Plyler v. Doe

Plaintiff's argument that Section 2(B) (A.R.S. § 11-1051(B) and Section 6 (A.R.S. § 13-3883A(5)), if applied to minors, would violate Plyler, 457 U.S. 202, fails for
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8 U.S.C. § 1304(e) requires every alien eighteen years of age and over to "at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card." 8 U.S.C. § 1306(a) imposes penalties upon any "alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted."
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multiple reasons. First, the Plyler Court did not hold that Texas' law excluding undocumented children from its public schools was a per se violation of the Equal Protection Clause. See Mot. at 27:25-28:16. Rather, the Plyler Court struck down that Texas law because Texas failed to demonstrate that its decision to "deny a discrete group of innocent children the free public education that it offers to other children residing within its borders" furthered a substantial state interest. 457 U.S. at 230. Here, unlike in Plyler, the Act is neutral and generally applicable on its face, and does not even reference school children. As a result, plaintiff has the burden of demonstrating that these provisions of SB 1070 are not "rationally related to a legitimate governmental purpose." Stormans, 586 F.3d at 1137. Plaintiff has not even attempted to do so. Further, plaintiff's argument that SB 1070 will require law enforcement officers "`to determine the immigration status' of any student they `stop' for any potential violation of another `law or ordinance'" does not explain how such an inquiry ­ based on a reasonable suspicion that the student is in violation of at least two separate laws ­ could in any way violate the student's constitutional rights. Mot. at 28:2-6. Likewise, plaintiff's attempt to rely on a hypothetical scenario that might lead to an inquiry into a students' immigration status cannot provide a basis to invalidate SB 1070 on its face. See Wash. State Grange, 552 U.S. at 449-50 (court cannot "speculate about `hypothetical' or `imaginary' cases" in a facial challenge). B. Plaintiff Is Not Likely to Suffer Irreparable Harm

To establish his entitlement to a preliminary injunction, plaintiff must show a "direct and immediate hardship [that] would entail more than possible financial loss." Stormans, 586 F.3d at 1126 (citation omitted). An injunction "`is not a remedy which issues as of course' . . . or `to restrain an act the injurious consequences of which are merely trifling.'" Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982) (citations omitted). "The correct standard is not whether there is a `possibility' but whether there is a `likelihood of irreparable injury.'" Stormans, 586 F.3d at 1138 (quoting Winter, 129 S. Ct. at 375). The mere fact that plaintiff has raised a constitutional challenge to SB 1070 is
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not enough to demonstrate irreparable injury. See id. Plaintiff also attempts to establish irreparable harm by arguing that enforcement of SB 1070 will create a danger of racial profiling. Mot. at 29:7-30:12. But the Act expressly prohibits law enforcement officials from "consider[ing] race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution."12 A.R.S. § 11-1051(L) further requires that the statute "be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." There is no basis for anyone to assume that Arizona's state and local law enforcement officers' assistance in the enforcement of federal immigration laws is likely to result in unconstitutional racial profiling. C. The Balance of Equities Does Not Tip In Plaintiff's Favor

In determining whether plaintiff has met his burden of establishing that the balance of equities tips in his favor, the Court must "balance the interests of all parties and weigh the damage to each." Stormans, 586 F.3d at 1138 (citing L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)). Where, as here, "the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction." Id. at 1139 (citing Winter, 129 S. Ct. at 378). Plaintiff's argument regarding the balance of equities finds no support in fact or law. First, plaintiff argues that he may refuse to enforce SB 1070 and, if he does so, that he may be disciplined or fired. Plaintiff relies on Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008), in which the plaintiffs faced the "stark choice" of either suffering a violation of their constitutional rights of losing their jobs. Unlike in Nelson, plaintiff has not even Plaintiff argues that this provision is insufficient to deter racial profiling because the case law is unclear regarding whether law enforcement officers can consider race, color or national origin in enforcing SB 1070, citing both United States v. Hernandez, 62 F.3d 1353, 1355-56 (11th Cir. 1995) and United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000). Mot. at 30 n.23. The Ninth Circuit opinion, Montero-Camargo, however, is clear and binding. The fact that the Eleventh Circuit reached a contrary result five years earlier simply has no bearing on the constitutionality of SB 1070.
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argued or suggested that the City of Tucson has threatened to discipline or terminate plaintiff if he refuses to enforce the Act in the impermissible manner he claims the Act might be enforced. Finally, Arizona has a substantial public interest in having SB 1070 enforced. Throughout our nation's history, the "States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." Medtronic, Inc. v. Lohr, 518 U.S. 470, 474 (1996) (quoting Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985)). For the reasons set forth in Governor Brewer's responses to the motions for preliminary injunction and supporting exhibits filed in the Federal Case, Salgado v. Brewer, et al., Case No. CV-10-00951-PHXSRB, and Friendly House, et al. v. Whiting, et al., Case No. CV-10-01061-PHX-SRB ­ all of which Governor Brewer incorporates herein by reference ­ unlawful, unchecked immigration poses a significant threat to the safety of Arizona's citizens, which Arizona has a substantial interest in protecting. Arizona's strong interest in serving the health, safety and welfare of its citizens, combined with the latitude the Court must give Arizona's Legislature to address such issues in the manner it deems appropriate, substantially outweigh plaintiff's alleged interests ­ based solely on rhetoric and speculation ­ in having SB 1070 enjoined. VI. CONCLUSION For these reasons, Governor Brewer respectfully requests that the Court deny plaintiff's Motion.

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Respectfully submitted this 10th day of August, 2010. SNELL & WILMER L.L.P. By s/John J. Bouma John J. Bouma Robert A. Henry Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 By s/Joseph A. Kanefield with permission Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona, and The State of Arizona

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11832639

CERTIFICATE OF SERVICE I hereby certify that on August 10, 2010, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record.

s/John Bouma

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