Tuesday, May 3, 2016
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Court Lifts Injunction Against Arizona Identity Theft Laws
By KENNETH OFGANG, Staff Writer
Two Arizona laws that the state says are designed to deter identity theft, and that opponents allege are a backdoor attempt at regulating immigration, are not facially preempted by federal law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Overturning a district judge’s preliminary injunction, the panel said plaintiffs did not show a likelihood of success on their claims of facial preemption. Claims that Arizona is applying the law in ways that are preempted or discriminatory were not argued on appeal and must be resolved in the lower court, Judge Richard Tallman wrote.
At issue are Arizona House Bill 2779, the Legal Arizona Workers Act, and House Bill 2745, entitled Employment of Unauthorized Aliens. The former law was enacted in 2007 and prohibits using the information of another person—real or fictitious—“with the intent to gain employment.”
HB 2745, enacted in 2008, expanded existing identity theft laws to cover employment-related identity theft.
No Facial Preemption
Tallman said District Judge David G. Campbell erred in granting the injunction on facial preemption grounds because nothing in the text of the act limits its application to persons who are in the country without authorization, and because the state presented evidence that unauthorized aliens are not the only people who have been prosecuted.
The plaintiffs, a pro-immigrant group called Puente Arizona and two named individuals, brought a putative class action in 2014 after Maricopa County Sheriff Joe Arpaio cited the laws as justification for raids on the workplaces of undocumented aliens who allegedly used stolen identities to obtain work. The raids were conducted by a special immigration unit that Arpaio abolished while the lawsuit was pending.
The plaintiffs claim that hundreds of unauthorized workers, but only a handful of others, have been prosecuted. But Tallman said the mere possibility of enforcing the laws against citizens or lawful residents was sufficient to defeat a facial, as opposed to an as-applied, challenge.
“As noted in hypotheticals raised at oral argument, these laws could easily be applied to a sex offender who uses a false identity to get a job at a daycare center,” Tallman wrote. “Or the laws could be applied to stop a convicted felon from lying about his criminal history on a job application for a position of trust.”
The panel in San Francisco had forecast such an outcome at oral arguments this past February.
Legislative History
Legislative history shows that Arizona adopted the laws with the intention of preventing undocumented immigrants from remaining in the state, Tallman acknowledged. But is also establishes that Arizona has a significant and growing problem with employment-related identity theft, the judge said, adding that federal immigration law is not implicated when the laws are applied to U.S. citizens or lawful permanent residents.
“Congress could not have intended to preempt the state from sanctioning crimes that protect citizens of the state under Arizona’s traditional police powers without intruding on federal immigration policy,” he wrote. “Thus, we hold that despite the state legislative history, Congress did not intend to preempt state criminal statutes like the identity theft laws.”
He added:
“The district court has yet to address Puente’s as-applied challenge, and without a fully developed record we think it inappropriate now to enjoin only certain applications of the identity theft laws.”
Puente’s attorney, Jessica Vosburgh with the National Day Laborer Organizing Network, says their position remains unchanged about Arizona’s laws. “Our reaction is that the worksite raids and the laws that we are challenging continue to be unconstitutional,” Vosburgh said, adding that the plaintiffs may seek en banc rehearing.
The Arizona Attorney General’s Office did not respond to a request for comment, but Arpaio said in a statement that the identity theft laws should be enforced now but that he has not decided “when or if to resurrect” enforcement.
The plaintiffs did prevail on one aspect of the case yesterday, as the panel held it had no jurisdiction to hear an appeal of Campbell’s denial of the county’s motion to dismiss it from the lawsuit.
The plaintiffs claim, pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), that the county is liable for Arpaio’s violations of their civil rights because he is a county policymaker. The county claims that the sheriff is a state policymaker, but the appeals court said that issue is not inextricably intertwined with the preemption question, so the county cannot piggyback onto Arpaio’s interlocutory appeal from the injunction.
Judge Barry G. Silverman and Senior U.S. District Judge Robert S. Lasnik of the Western District of Washington, sitting by designation, concurred in the opinion.
The case is Puente Arizona v. Arpaio, 15-15211.
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