Introduction (part 1 of 4):
For several hours, the tin sounds of voices shouting into bullhorns echoed across the vast limestone plaza, interrupted by broken chants, songs, prayers, and whistles.
Several of the spectators spent the night outside the court building to ensure they’d be able to watch the highly publicized proceedings in full.
(Read about the first person in line, an American from Tucson, Ariz. who was raised in Mexico)
The first fifty people in line enjoyed the privilege of watching the full session. About a hundred more – including nextooze.com – were rotated in three minute intervals throughout the proceedings.
Protesters against the measure dwarfed supporters – most of whom huddled on the north side of the plaza.
Arizona Senate Bill 1070:
The creators and supporters of Arizona’s highly controversial and trend-setting immigration legislation known as Senate Bill 1070 have prepared for two years, knowing this day would probably come.
They asked, and the Supreme Court agreed to consider whether or not it is appropriate for local law enforcement to detain people as they investigate the legality of their presence in the state.
The Arizona legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act in 2010.
The law requires local police to detain and investigate the immigration status of those they “reasonably suspect” to be in the country illegally.
Police must have a legitimate reason to interact with, or otherwise “stop” a person and make such judgements, the specifics of which differ from some definitions in Federal law.
Only eight of nine Justices heard oral arguments from attorneys after Obama appointee Elena Kagan recused herself from the case in December.
Kagan spent years working with the Justice Department on Immigration issues.
A 4-4 tie could send the case back to the 9th Circuit Court of Appeals which upheld the lower court’s suspension of the law.
The Justice Department successfully sued Arizona in Federal District Court in 2010, resulting in blocking four key portions – essentially the meat – of the law from taking effect.
The Government’s central objection: the law bucks Federal authority on citizenship matters, clearly reserved to U.S. Congress in the Constitution.
The Justices spent more time than was scheduled listening to both sides, what attorneys said was unusual for Supreme Court cases.
Inside the Supreme Court:
Arizona Governor Jan Brewer hired former U.S. Solicitor General and veteran Supreme Court litigator Paul Clement to represent the state.
Clement represented conservative legislators earlier this year in a suit to block President Barack Obama’s healthcare overhaul.
“It was certainly very encouraging that all the Justices understood how these laws operate,” he said to reporters after arguments in the Arizona case Wednesday. “They understood what was at issue and what was not.”
Justice Stephen Breyer pressed Clement if the requirement for police to detain people while they investigate legal status would significantly increase the amount of arrests made in Arizona, as well as increase the amount of time people spend under detention.
Government reports list a wide range of wait times – from 11 minutes to over an hour – for which officers can expect to wait just when calling to inquire about the Immigration status of an individual they suspect to be here illegally.
S.B.1070 requires police to contact Federal authorities but does not specify what happens if I.C.E. personnel are not available – or unwilling – to take custody of suspected illegal immigrants.
Justice Department attorneys have stated repeatedly that they are not interested in detaining or deporting the majority of people in the U.S. without proper status, both moves are costly and usually reserved for dangerous criminals.
Clement told Breyer Police would still be required to bring detainees before an Arizona judge, as required by the habeus corpus doctrine in the U.S. Constitution.
“We don’t anticipate (SB1070) will elongate the number of arrests or period of detention,” Clement told Breyer.
The Justice didn’t accept his response outright: “There will be a significant number of people detained for a significant amount of time,” he said, with a tone of instruction rather than a question.
“Some offenses you can arrest or release,” Clement further explained. “What (officers) really want is to ascertain who is going to show up for a hearing.”
Brewer told reporters Clement and his staff were “stellar” in their representation of Arizona and the “rule of law.”
Supporters outside the courthouse:
Arizona has claimed all along that it only wants to help enforce current Federal law by requiring officers to identify and report to immigration authorities those they suspect of being in the country illegally.
Though the Arizona law prohibits profiling on the basis of skin color, it expressly allows officers to make judgements about a person’s national origin, what has been defined as “racist discriminatory practice” in several other areas of Federal law.
Despite enormous backlash and allegations of prejudice from humanitarian groups and politicians throughout the country, the topic of ethnic profiling was hardly discussed inside the top hall of justice.
“I signed a bill that made sure (the law) absolutely did what we wanted it to do, address the terrible situation in Arizona,” Governor Jan Brewer told about seventy reporters in the plaza after arguments concluded. “Knowing all the while (S.B.1070) would be a lightning rod in some arenas, that the race card would be thrown out.”
The original version did not include a prohibition against officers making determinations based on skin color, nor was there a clearly defined standard of evidence requirement.
The “reasonable suspicion of criminal activity” standard is a common measure requiring an officer to justify his or her interest in investigating a person or suspected activity. It was added to S.B.1070 after committee review.
“Racial profiling is wrong, it’s against the law,” Brewer elaborated Wednesday. “We amended (the law) to make sure that wouldn’t happen and now exactly what we thought would happen has.”
Former Arizona State Senator Russell Pearce, R-Mesa, was the bill’s original sponsor. He became the first Arizona lawmaker ever to be recalled by voters.
“I’ve always felt comfortable about this whole process,” he told reporters Wednesday. “(The Justices) understood what this was all about.”
Pearce said he was glad the Justices didn’t belabor issues of racial profiling.
“I expect Americans to be employed, I expect crime to go down, I expect our k-12 system to save money,” he said.
Though kicked out of the legislature, Pearce still donned his official Senate pin on the lapel of his jacket. Several reporters addressed him as “Senator” during press conferences.
Clement told reporters that Arizona’s law doesn’t allow police to do anything they aren’t already allowed to do. The law instead forbids any agency or city from preventing officers from communicating with Federal Authorities when they have a person in suspect they believe to be in the country illegally.
“I think that’s what makes the government’s argument difficult because they have to argue that this interferes not with a Federal Statute but with their enforcement posture.”
Larry Dever has been the Sheriff of Cochise County, Arizona for over thirty years. His jurisdiction includes small towns and several functioning ranches along the U.S. – Mexico border.
His support for 1070 has blossomed since the law became gained publicity.
“I absolutely support it, I’m the sorry guy that started it all,” he said.
Dever said he has suggested for years that the legislature allow local officers to detain people they know to be in the country illegally.
“We wish we didn’t have to, the fact is that we’re stuck in the middle,” Dever said of his deputies having to enforce Federal Immigration law. “There’s no conflict.”
Dever reflected thoughtfully for a moment after he was asked if his deputies could appropriately investigate reports of crime when they suspected the victims were illegally in the country.
“If there’s a crime committed we’re going to investigate it,” he responded. “Most (illegal immigrants) do not (report) now anyway, they didn’t do it before SB1070 was passed or after.”
Although greatly outnumbered by obvious opponents in the plaza, SB1070 supporters made their presence known.
“The problem from A to Z is the illegals,” said Kathryn Kobor. “We want legal immigrants.”
Kobor is retired and lives in central Phoenix.
She carried around signs supporting S.B.1070 and admonishing those who listen to “the liberal media.”
“The illegals have ruined the environment on the southern border, we do not have the infrastructure nor the money for the infrastructure,” she said.
Kobor said she opposes any sort of guest worker plan or for creating hubs along the border to make naturalization more accessible to those who want to work in the country.
“I believe in the equal treatment of everybody but it goes back to the numbers,” she said.
George Pope worked in marketing before retiring. He lives in Pennsylvania.
“In many ways the outcome of this is going to determine if the states are going to get the aid they should according to the Constitution,” he said. “This is mostly a Constitutional issue for all people, not just people coming here illegally.”
Pope said his wife was a foreigner who came to the U.S. and stayed legally.
He said it was up to judges in specific situations to determine if police acted appropriately in detaining a suspected illegal immigrant, after they responded to reports of other crimes or emergencies.
Reporters asked Brewer if she thought the law would create mass-incarcerations in Arizona.
“I think there will be incarcerations based on the fact people have broken the law,” Brewer said. “I don’t know if it will be massive.”
Hundreds of protesters boo’d her and shouted slants in English and Spanish as she descended the steps of the courthouse. Click to read specifics of the legal arguments, and the legal implications of SB1070.
Opponents outside the Courthouse:
The majority of the people gathered outside the courthouse opposed the measure and others like it which followed in Utah, Texas, Alabama, and Georgia.
“The point of police is to make everyone (physically) safe,” said third-year law student Sara Morton, who drove from New York City to watch the oral arguments. “If people are afraid to talk to police because they’re afraid to be identified, you’re going to allow more crime to happen.”
Nothing in S.B.1070 specifically exempts people who are victims or who report crimes to police. Some Federal programs exist to allow temporary or permanent amnesty for people who participate in criminal prosecutions.
Morton has worked with the Pace University Law School clinic since her second year there. She wants to practice immigration law when she graduates.
“There has to be some sort of a sanctum that people feel safe to talk to their police,” she said. “You want to look at the people who are living in societies which were created by those laws.”
Lucy Wilson and her friend Lorrie Paetz work in healthcare in Maricopa County, Arizona. They traveled through D.C. on vacation and decided to come watch the demonstrations.
“I don’t think S.B.1070 is the answer,” said Wilson. “I think this has blocked us from getting to a more comprehensive, compassionate solution.”
Wilson, who works in ancillary services, said she does not object to Arizona trying to enforce federal law because she’s a strong supporter of state’s rights.
“I would like to see a solution that does not disrupt the function of families,” she said.
Nothing in S.B.1070 requires or allows families to keep in contact with those detained pending determination of the immigration status.
“People shouldn’t have to die in our desert trying to get here, there’s got to be a balance,” she said. “If they’re here, working a job and paying taxes, I’d like there to be an amnesty mechanism.”
She does not think S.B.1070 must succeed to protect Arizona’s state powers to handle immigration.
“I think our resources are spread thin,” she said. “You have to ask, what’s the value of a person – their immigration status?”
Patez works in healthcare administration.
“First responders are called out to a situation to assess for a healthcare issue, not determine whether the person is legal or not,” she said. “(immigration) should have been taken care of at the border, before that point.”
Paetz said requiring police (who work alongside paramedics) to inquire about immigration status could distract from assessing and a person’s immediate health care needs.
They would not be concentrating on what they were called out to do, she said.
Marta Angel came from Tucson, Arizona to watch the oral arguments. She was second in line after camping all night outside the courthouse.
“This country was formed and based on immigrants,” she said. “The true Americans are immigrants.”
She said she became a legal resident when she married her husband, who is in the U.S. Air Force based in Tucson.
She said she and her husband were harassed by Arizona paramedics in 2010 when they were injured in a car accident in Tucson.
They were both injured when a vehicle ran a red light and hit their car in southern Tucson.
“The police never questioned our immigration status,” she said. “Instead of the paramedic asking ‘ma’am where does it hurt?’ he said: ‘Marta how long have you been here in the United States?”
She said the paramedic, whose name she still does not know, continued to press the issue.
“He completely disregarded my husband who was almost un-conscious,” she said. “I told him: ‘you know, that part of Sb1070 didn’t pass so drop it!”
Angel said she filed complaints with the American Civil Liberties Union about the incident but has not been able to retrieve the appropriate emergency reports from the private ambulance company to file grievances with the city.
Congressman Raul Grijalva has represented the southwestern half of Arizona for nearly five terms.
He has outspokenly opposed S.B.1070 from its beginning.
“We believe it is un-Constitutional and should not be used as a model around the country,” he said Wednesday outside the Court. “I hope the court does what it has always done in times of strife, step in and use a rational application of the law.”
Grijalva said the states should leave immigration to the Federal Government to prevent crime.
“This law ties the hands of law enforcement and emergency responders,” he said. “They are being asked to make judgements based on people’s status and not on the health of the people or public safety.”
He said it’s important that all people feel safe to report crime to police.
Ezekiel Hernandez is an immigration attorney in Phoenix who was born in Mexico.
He said he fears what will happen if all fifty states create different laws.
“The issue here is who can ask for identification,” he said. “We’re talking about different types of I.D’s, local, state, and federal.”
Hernandez said most people with whom he speaks don’t understand that people come here with different types of immigrant and non-immigrant status.
Hernandez believes somebody who comes over to work should be treated differently by authorities than somebody who comes for a visit and stays longer than their visa allows.
“The immigrant experience is one of hope,” he said. “We come here to work and for everyone to have a better life.”
Hernandez said he would support different levels of skilled and non-skilled worker programs.
“We want people here who are educated and contribute right away,” he said. “That’s reform, not amnesty.”
Steve Gallardo represents a largely hispanic area of Maricopa County, west of the Arizona Capitol.
“I was shocked to hear they did not want to speak about racial profiling,” he said. “When you have a wall between the community and local law enforcement it definitely hampers there ability to solve crime.”
Gallardo said neither the state nor local governments have the resources to detain, investigate, and house those suspected of illegal immigration.
“It’s pretty clearly motivated by xenophobia and racism,” said Geoff Kozen, a George Washington University law student who also came to watch oral arguments. “It’s making punitive penalties for people who have been here for years, whose folks brought them here when they were children. That’s not they’re fault.”
Kozen also spent the night outside the Court.
The Justices are expected to render a decision in the case by mid-summer 2012.