Monday, September 30, 2013

Court Permanently Bars Maricopa County, Arizona from Arresting and Charging Immigrants with "Conspiracy to Transport Themselves"

On September 27, 2013, a federal court in Arizona issued a permanent injunction stating "Defendants Maricopa County Sheriff Joseph M. Arpaio and Maricopa County Attorney William G. Montgomery, and their agents, employees, successors in office, and all other persons who are in active concert or participation with the Maricopa County Sheriff’s Office and the Maricopa County Attorney’s Office, are permanently enjoined from further implementing the Maricopa Migrant Conspiracy Policy including detaining, arresting, and prosecuting persons for conspiring to transport themselves, and no one else, in violation of Ariz. Rev. Stat. § 13-2319." The 59-page decision was issued in the case of We Are America v. Maricopa County.

The lawsuit was brought by We Are America/Somos America Coalition of Arizona (“WAA”), the American Hispanic Community Forum (“AHCF”), and taxpayer plaintiffs Dawn Haglund and David Lujan. For a copy of the decision click here.

In 2005, the Arizona State Legislature criminalized human smuggling. See Ariz.Rev.Stat. (“A.R.S.”) § 13-2319. Thereafter, the Maricopa County Attorney’s Office (“MCAO”) interpreted that human smuggling statute, in combination with Arizona’s conspiracy statutes, as giving it the prosecutorial discretion to arrest, charge and prosecute non-smuggling migrants for "conspiring to transport themselves" within Maricopa County.

In 2006 the plaintiffs filed a lawsuit challen ging the Maricopa Migrant Conspiracy Policy. By the end of 2012, Maricopa County Sheriffs had arrested and charged over 2,000 immigrants with conspiring to transport themselves. Over 1,500 of these immigrants spent two to three months in jail and then pled guilty to a felony violation of § 13-2319 and were then turned over to ICE and deported. These immigrants may be barred from lawful entry in the future because of their felony convictions.

In its September 27, 2013, decision, the federal court held that the Maricopa Migrant Conspiracy Policy is unconstitutional because it directly conflicts with federal law which does not criminalize the conduct of immigrants being transported by someone for gain: "Because the Policy 'criminalizes actions that Congress has, as a policy choice, decided are a civil matter[,]' it is hard to imagine a more blatant conflict than that."

The Court decided that the tax-payer plaintiffs (Dawn Haglund and David Lujan) had standing to challenge the Maricopa Migrant Conspiracy Policy: "the claimed threat of injury – the misuse of the taxpayers’ County taxes to fund the Policy – is likely to be remedied by prospective injunctive and declaratory relief." The Court also certified a class consisting of “All individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute, or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. § 13-2319.”

The Court appointed Peter Schey, President of the Center for Human Rights and Constitutional Law (CHRCL), and Carlos Holguin, General Counsel of CHRCL, as lead class counsel. It ordered the Maricopa County Sheriff and County Attorney to "promptly serve Class Counsel with copies of any instructions or guidelines they issue to implement this Order." The Court also "retain[ed] continuing jurisdiction to enforce the terms of [its] Order and Permanent Injunction."

Lead counsel Peter Schey issued the following statement on behalf of the plaintiffs:

"We are very pleased with federal judge Broomfield's decision. It has taken several years of rigorous litigation to get to this point, including a successful appeal to the Ninth Circuit Court of Appeals after the judge initially dismissed the lawsuit. This will hopefully bring to an end a mean-spirited and short-sighted policy that has severly harmed a large number of immigrants during the past several years in an entirely unconstitutional manner. We will monitor the situation carefully to insure that Sheriff Arpaio and Maricopa County Attorney Montgomery fully comply with the permanent injunction and start conducting themselves in a manner consistent with the US Constitution."

Lead counsel Carlos Holguin issued the following statement:

"When the Arizona State Legislature criminalized human smuggling in 2005, it never intended for local sheriffs' and prosecutors to criminally charge immigrants being smuggled. In fact the author of the legislation made very clear the law was only intended to apply to smugglers. Sheriff Arpaio could not resist twisting the law into something the legislature never intended. The fartherest thing from the legislature's mind when they enacted the anti-smuggling law was that a county sheriff and county attorney would use it to start arresting and prosecuting non-smuggling migrants for conspiring to transport themselves."

For more information please contact Peter Schey 323-251-3223, or Carlos Holguin 213-388-8693 ext. 309.

For a copy of the decision, click here

KJ

http://lawprofessors.typepad.com/immigration/2013/09/court-permanently-bars-maricopa-county-arizona-from-arresting-and-charging-immigrants-with-conspirac.html

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