Metropolitan News-Enterprise


Tuesday, March 5, 2013


Page 1


Panel Upholds Injunction Against Day-Laborer Provision


From Staff and Wire Service Reports


A provision of Arizona’s controversial SB 1070 that criminalizes the blocking of traffic by persons seeking or offering day labor services is unconstitutional, the Ninth Circuit U.S. Court of Appeals ruled yesterday.

The court upheld a district judge’s injunction against the enforcement of the provision. While the state has a significant interest in traffic safety, Judge Raymond C. Fisher wrote, the day laborer provision intrudes on personal freedom more than necessary to vindicate that interest.

The day labor restrictions, Fisher wrote, are “classic examples of content-based restrictions,” designed primarily not to protect traffic flow but to encourage self-deportation by stripping undocumented immigrants of their livelihood.”

No Abuse of Discretion

Fisher said U.S. District Judge Susan Bolton of the District of Arizona was correct in concluding that the plaintiffs were likely to prevail in their First Amendment challenge to the law, and that she did not abuse her discretion by issuing a preliminary injunction.

The appellate jurist noted that the hiring of day labor is a lawful activity in Arizona, and that persons seeking work have a free-speech right to make that fact known. SB 1070, however, places a burden on that speech that other speakers do not have, even if they block traffic, the judge said.

Fisher pointed out that the preamble to the law says nothing about traffic safety, and that such concerns were a very small part of the debate over the controversial law. He also noted that the law provides penalties way out of line with those for similar offenses.

For instance, a person who is found by a court to have recklessly interfered with traffic faces a 30-day sentence, while a violation of the day labor rules is a misdemeanor punishable by a maximum six-month sentence even if recklessness is not involved. If the state is truly interested in ameliorating traffic problems associated with day labor, he wrote, there are “obvious and less-restrictive alternatives,” including the enforcement of existing traffic safety laws or the enactment of new ones that are content-neutral, the judge said.

Fisher was joined by Judges Richard C. Tallman and Consuelo M. Callahan.

Dan Pochoda, legal director for the American Civil Liberties Union of Arizona, one of the groups that challenged the day labor rules, told The Associated Press Arizona already has plenty of power to confront its traffic woes. “There are already ordinances directed toward that problem, and there has been no showing that those are not adequate,” Pochoda said.

Brewer spokesman Matt Benson said in a written statement that the decision is a disappointment and that the governor will be talking with her lawyers about the state’s next step in the case.

Day Labor Rules

Yesterday’s case focused on only the law’s day labor rules, which were among a handful of sections of the law that were allowed to take effect after a July 2010 decision.

The day labor restrictions weren’t among the sections of law that the Supreme Court considered last year when it upheld the law’s most contentious section that required police, while enforcing other laws, to question people’s immigration status if they’re believed to be in the country illegally. The nation’s highest court struck down other sections of the law, such as a requirement that immigrants obtain or carry immigration registration papers.

It’s unclear whether the day labor rules were enforced by police while they were in effect from July 2010 until the preliminary injunction was granted in February 2012.

Day labor organizers say they know of no arrests under the rules, though they added that day laborers are still arrested on trespassing and other charges that aren’t in the immigration law. In the past, some of the biggest police agencies in Arizona have reported little — if any — use of provisions in the law.

The case was argued in the Ninth Circuit by Robert A. Henry of Snell & Wilmer L.L.P. in Phoenix for the state and Victor Viramontes of the Mexican American Legal Defense and Educational Fund in Los Angeles for the plaintiffs.

The case is Valle Del Sol Incorporated v. Whiting, 12-15688.


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