Escobar v. Brewer et al

Filing 9

ANSWER to 4 Amended Complaint, CROSSCLAIM against State of Arizona by Tucson, City of.(McCrory, Michael)

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MICHAEL G. RANKIN City Attorney Michael W.L. McCrory Principal Assistant City Attorney P.O. Box 27210 Tucson, AZ 85726-7210 Telephone: [phone] State Bar 3899 PCC No. 37268 Attorneys for City of Tucson

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) JAN BREWER, Governor of the ) State of Arizona, in her Official ) ) and Individual Capacity; THE CITY OF TUCSON, a municipal ) ) corporation; and BARBARA LaWALL, County Attorney, Pima ) ) County, ) ) Defendants. ____________________________ ) ) ) THE CITY OF TUCSON, a ) municipal corporation, ) ) Cross-plaintiff, ) ) vs. ) THE STATE OF ARIZONA, a body ) politic; and JAN BREWER, in her ) ) capacity as Governor of the ) State of Arizona, ) Cross-defendants. ) ) ) MARTIN H. ESCOBAR, No. CV 10-249 TUC DCB ANSWER AND CROSS-CLAIM

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The City of Tucson ("Tucson") answers the factual allegations in Plaintiff's first amended complaint ("complaint") and alleges a crosscomplaint as follows: Answer 1. Tucson admits the allegations in paragraphs 1 through 4 of

the Plaintiff's complaint. 2. In response to paragraph 5 of Plaintiff's complaint, Tucson

admits that it is a municipal corporation in the State of Arizona and affirmatively alleges that it is a charter city formed pursuant to Article 13, Section 2 of the Arizona Constitution with authority to exercise all powers under its charter except where inconsistent with the Arizona Constitution and general laws of the State. 3. complaint. 4. Tucson does not contest Plaintiff's personal experience as Tucson admits paragraphs 6 through 33 of Plaintiff's

set forth in paragraphs 34 through 45. Tucson is without information and belief as to the remaining allegations in these paragraphs and therefore denies said allegations. 5. complaint. 6.
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Tucson admits paragraphs 46 and 47 of Plaintiff's

Tucson denies paragraph 48 of Plaintiff's complaint. 2

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7. complaint. 8. 9. complaint.

Tucson admits paragraphs 49 and 50 of Plaintiff's

Tucson denies paragraph 51 of Plaintiff's complaint. Tucson admits paragraphs 52 through 54 of Plaintiff's

10. Tucson denies that it has announced or made clear any intent to enforce any law that places Hispanics or any other persons at substantial risk of loss of civil rights as alleged in paragraph 55 of Plaintiff's complaint. Tucson admits that Defendant Jan Brewer has stated and acted to implement Senate Bill ("SB") 1070, as amended by House Bill ("HB") 2162 (the "Act"), and that such implementation will violate the United States Constitution as set forth in Tucson's crossclaim in this case. Tucson is without information or belief as to any proposed actions by Defendant Barbara LaWall as alleged in paragraph 55. 11. Tucson does not have sufficient information or belief regarding the allegations in paragraphs 56 and 57 of Plaintiff's complaint and therefore denies said allegations. 12. Tucson admits paragraphs 58 through 61 of Plaintiff's complaint.

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13. In response to paragraph 62, Tucson admits it is preparing to implement the Act, if enforcement is not enjoined by this Court, and states that it is pursuing its cross-claim in this case to have the Act declared unconstitutional as preempted by and in conflict with the Immigration and Naturalization Act and a violation of the commerce clause of the United States Constitution. 14. Tucson admits paragraphs 63 through 67 of Plaintiff's complaint. 15. Tucson does not contest the Plaintiff's beliefs as alleged in paragraphs 68 through 70 of Plaintiff's complaint. 16. In response to paragraph 71, Tucson states that it seeks a declaration that the Act is unconstitutional which will preclude any disciplinary measures against the Plaintiff for failure to enforce the Act and therefore denies the allegations in this paragraph. 17. In response to paragraph 72 of the Plaintiff's complaint, Tucson alleges that it will be subject to lawsuits in the event an injunction is not issued and that Tucson will be required to indemnify the Plaintiff for claims brought pursuant to A.R.S. §11-1051 except if the Plaintiff acts in bad faith. See A.R.S. §11-1051(K).

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18. Tucson is without sufficient information and belief to respond to paragraphs 73 through 77 and therefore denies said allegations. 19. Tucson denies any factual allegation in the Plaintiff's complaint not expressly admitted herein. 20. Tucson denies that it has or will engage in conduct violating Plaintiff's civil rights as alleged in Counts One through Five of Plaintiff's complaint. 21. Tucson incorporates its prior answers above and joins Count Six of Plaintiff's complaint. 22. Tucson joins Plaintiff's request for a declaratory judgment pursuant to 28 U.S.C. §2201. Tucson's Cross-claim 23. Tucson is a municipal corporation in the State of Arizona and affirmatively alleges that it is a charter city formed pursuant to Article 13, Section 2 of the Arizona Constitution with authority to exercise all powers under its charter except where inconsistent with the Arizona Constitution and general laws of the State. 24. Cross-defendant State of Arizona has legal authority to adopt general laws that Tucson is required to enforce to the extent such laws comply with the U.S. Constitution and the Arizona Constitution.
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25. Cross-defendant Jan Brewer is the Governor of the State of Arizona and as such is the highest ranking state constitutional officer who is the chief executive responsible for implementing the laws of Arizona in conformance with the United States Constitution and the Arizona Constitution. 26. This Court has jurisdiction over the cross-claim pursuant to 28 U.S.C. §§1331 and 1343 and the court's ancillary jurisdiction to the Plaintiff's claims. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. §2202. This Court has pendent jurisdiction over any state law claims. 27. Pursuant to Article VI, Section 2 of the United States Constitution, the laws of the United States are the supreme law of the land and all states are required to be bound thereby. 28. Pursuant to Article 2, Section 3 of the Arizona Constitution, the Cross-defendants are required to recognize that the United States Constitution is the supreme law of the land. 29. The Cross-defendants are legally required to recognize and enforce the supremacy of the federal laws and Constitution. 30. The United States has plenary authority to control and regulate immigration which is exclusive of any state authority.

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31. The United States has fully occupied the field of immigration control and regulation through the adoption of the Immigration and Naturalization Act and subsequent amendments. 32. The State of Arizona, through the enforcement of SB 1070, as amended by HB 2162 (the "Act"), seeks to control and regulate immigration in a manner that conflicts with federal immigration laws, policies and practices. If the Act is not enjoined, Tucson will be

required by the Act to implement an unconstitutional law and will incur liability for that conduct. 33. Governor Jan Brewer in executing Executive Order 201009 has acknowledged that the Act "establishes a statewide policy to discourage and deter unlawful entry and presence of aliens" and that the Act provides for immigration enforcement by local police agencies. 34. Executive Order 2010-09 further acknowledges that the Governor is responsible for the supervision of the executive department and is obligated and empowered to see that the Act is enforced. 35. As part of that enforcement, Executive Order 2010-09 declares that the Act prohibits cities, which includes the Cross-plaintiff, "from limiting or restricting the enforcement of federal immigration laws to less than the full extent permitted by federal law . . ."

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36. Tucson does not, and cannot under the supremacy clause, restrain or limit federal enforcement of immigration law within the City limits. Tucson cannot, however, enforce federal immigration law to the fullest extent permitted by federal law since it lacks the resources and training to do so and since such enforcement will conflict with federal law, policies and priorities for enforcement. 37. Tucson does not have an agreement with the Immigration and Customs Enforcement Department pursuant to 8 U.S.C. §1357(G) (a "Section 287(g) agreement"). Such agreements provide the

exclusive basis for delegation of federal immigration authority to local police agencies and provide for the training and supervision of local authorities to ensure that enforcement complies with federal law and constitutional rights. 38. A.R.S. §13-3903 provides a procedure for the citation and release of a person arrested for a misdemeanor to be released at the site of the arrest in lieu of transporting the person to a law enforcement facility. Tucson used this procedure during fiscal year 2009 for the

immediate release upon citation of 36,821 persons arrested for criminal misdemeanors. These included citations for criminal speeding, driving under the influence, under age drinking and liquor offenses, minor drug offenses, assault, trespass, disorderly conduct, and similar offenses.
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Tucson does not currently condition these releases on the verification of the individual's immigration status with the federal government prior to their release. 39. The Act provides in A.R.S. §11-1051(B) that: "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 . . ." (emphasis added) 40. The Act mandates the detention and verification of the immigration status of arrestees without any reasonable suspicion, probable cause or other independent legal basis for continued detention in violation of the Fourth Amendment to the United States Constitution. 41. The Act mandates the detention and verification of the immigration status of arrestees regardless of other more urgent police duties and thereby usurps the local discretion over the exercise of the police power. 42. Tucson currently cooperates with federal immigration agents when individuals are identified as aliens unlawfully in the United States in the course of police investigations. Most of the time, Border Patrol can respond while an investigation is in process so that the Tucson police are not detaining the individual solely on immigration grounds. Occasionally, Border Patrol is unable to respond in a timely
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manner. In those instances, the individual is released and a report is forwarded to Border Patrol. 43. Tucson alleges on information and belief that the United States Border Patrol cannot guarantee that it can respond to every local law enforcement request to verify an individual's status or take custody of every undocumented alien from local law enforcement. 44. On information and belief, Tucson alleges that the federal Immigration and Customs 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 City of Tucson and within the State of Arizona as required by A.R.S. §11-1051(B). 45. As a result, Tucson will be required to incarcerate persons who would have been released at the time of citation pending federal verification of the person's immigration status. That verification will be particularly difficult for natural born citizens who do not have a passport or other record with federal immigration agencies. The federal

verifications may take days or weeks, substantially increasing the costs of incarceration for Tucson. 46. Other individuals arrested by the Tucson Police

Department ("TPD") may be ordered released by a court following an
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initial appearance.

These releases may also come before there is

verification of the person's immigration status by federal immigration officers, requiring continued detention of an individual, including natural born citizens and others lawfully in the United States, after a prosecutor or a judge has determined that the person should be released according to applicable law violates the separation of governmental powers and the individual's civil rights. 47. Enforcement of the Act by Tucson and other cities and counties will have the effect of dictating the enforcement of federal immigration law in accordance with state law instead of following enforcement priorities, policies, and direction of the federal government. 48. Tucson police regularly encounter persons from New Mexico and other states in the course of police stops, detentions and arrests. 49. The Act establishes in A.R.S. §11-1051 that for a person who is stopped, detained or arrested, there is a presumption that person is not an alien unlawfully in the United States if the person produces an Arizona driver's license. For persons from New Mexico and other states where proof of citizenship is not required for a driver's license, there is no such presumption. Persons with New Mexico or other out-of-state licenses engaged in interstate commerce are thus
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required by the Act to obtain and carry additional documentation such as a passport or birth certificate, proving that they are citizens or lawful aliens. Such documentation is not normally carried by all persons

engaged in interstate commerce. 50. If the Act is not enjoined, Tucson will be required to impose a burden of requiring additional proof of citizenship or lawful status upon persons from New Mexico and other states and required to give a preference to Arizona residents by recognizing the Arizona driver's license as the sole documentation necessary to establish a presumption of lawful status. 51. The imposition of a burden on out-of-state commerce and a preference for in-state commerce discriminates against interstate commerce and violates the commerce clause of the United States Constitution. 52. Tucson has suffered several years of reduced revenues that have resulted in layoffs, furloughs, and elimination of positions and services. The reduced revenues have also forced TPD to carefully

prioritize its method and manner of implementing law enforcement. 53. Tucson is required by state law to adopt an annual budget effective July 1 of each year. The City Manager has recommended that Tucson adopt a budget that does not include sufficient funds for the
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enforcement of federal immigration laws to the fullest extent permitted by federal law. 54. The reduced revenues have forced the TPD to carefully prioritize its method and manner of implementing law enforcement. Compliance with the Act will require TPD to change those priorities and may result in decreased investigation and prosecution of violent crimes against persons and other major felonies. 55. Tucson believes that there will be one or more court challenges under the Act by private individuals to contest its budget policies and other policies as adopted by the City to set priorities for law enforcement and policies regarding Tucson's executive authority over its local government. 56. The Act provides in A.R.S. §11-1051(H) that any legal

resident may bring a claim in superior court to challenge any City official or agency that implements a policy that limits or restricts the enforcement of federal immigration laws to the fullest extent permitted by federal law. Section 11-1051(H) interferes with the exercise of police power and prosecutorial discretion by Tucson by delegating control over these functions to individual legal residents of the State of Arizona whose motives may or may not be consistent with the governing body and public officials responsible for law enforcement.
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57.

Tucson is entitled to a declaratory relief that the Act does

not impact its rights to establish budget policies and other policies that do not enforce federal immigration law to the fullest extent permitted by federal law. 58. Tucson will suffer irreparable injury unless this Court enjoins the enforcement of the Act. Tucson has no plain, speedy and adequate remedy at law against the enforcement of SB 1070. 59. Tucson is entitled to a declaration of its rights to establish budget policies and other policies that do not enforce federal immigration law to the fullest extent permitted by federal law without violating the Act. Count One 60. The Act is preempted by federal immigration law and Cross-plaintiff is entitled to declaratory and injunctive relief prohibiting the Cross-defendants from enforcing the Act. Count Two 61. The Act delegates the inalienable police power of the government to individuals and Cross-plaintiff is entitled to declaratory and injunctive relief holding A.R.S. §11-1051(H) unconstitutional.

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Count Three 62. In the alternative, Cross-plaintiff is entitled to declaratory relief that the budget policies and other policies lawfully adopted by Tucson which do not enforce federal immigration law to the full extent permitted by federal law do not violate the Act. Count Four 63. The Act requires Tucson to impose a burden on out-ofstate commerce and a preference for in-state commerce that discriminates against interstate commerce and violates the commerce clause of the United States Constitution. Cross-plaintiff is entitled to declaratory and injunctive relief prohibiting the Cross-defendants from enforcing the Act. WHEREFORE, the City of Tucson prays that this Court grant judgment to the City as follows: A. Declaring that enforcement of SB 1070 would violate the

United States Constitution as set forth herein; B. Preliminarily enjoining Cross-defendants from any

enforcement of SB 1070 or enforcement of such provisions as the Court determines to be unconstitutional;

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C.

Permanently

enjoining

Cross-defendants

from

any

enforcement of SB 1070 or enforcement of such provisions as the Court determines to be unconstitutional; D. E. Awarding the City its costs and attorneys' fees; and Awarding such other and further relief as may be just and

appropriate. RESPECTFULLY SUBMITTED this 26th day of May, 2010.

MICHAEL G. RANKIN City Attorney By: /s/ Michael W.L. McCrory Michael W.L. McCrory Principal Assistant City Attorney Copies of the foregoing mailed on this 26th day of May, 2010, to: Richard M. Martinez 307 South Convent Avenue Tucson, Arizona 85701 Stephen Montoya Augustine B. Jimenez Montoya Jimenez, PA 3200 N Central Avenue, #2550 Phoenix, AZ 85012 Attorneys for Plaintiff /s/ Michelle Gensman

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