“Arizona is entitled to summary judgment on the remaining claims in Counts One (Supremacy Clause), Two (Equal Protection Clause), Four (Fourth Amendment), Five (Article II, § 8 of the Arizona Constitution), Six (Due Process Clause), and Seven (42 U.S.C. § 1981). Plaintiffs are entitled to summary judgment on Count Three (First Amendment). The Section 5 day labor provisions, A.R.S. § 13-2928(A)-(B), are permanently enjoined.”
U.S. District Judge Susan Bolton found in favor of the State of Arizona today in a case involving its immigration law, commonly known as SB1070. The judge wrote:
“Because Plaintiffs have admittedly not produced any evidence that state law enforcement officials will enforce S.B. 1070 differently for Latinos than a similarly situated person of another race or ethnicity, the Court grants summary judgment in favor of Arizona on Counts Two (Equal Protection Clause) and Seven (42 U.S.C. § 1981). The Court does not address Arizona’s alternative argument for summary judgment on these claims.”
Arizona State Senator Steve Smith stated, “It turns out Arizona was right all along and those that called the law “backwards” and “racist” hopefully know once more that by allowing law enforcement officers who simply follow federal and state law are neither ‘backwards’ nor ‘racist.’ People like Senator Russell Pearce and Sheriff Joe deserve an apology for the attacks they have had to endure, but I’m not holding my breath.”
Arizona State Representative Mark Finchem noted, “We have yet to see the federal government live up to its responsibility related to its claim for immigration law enforcement. It is unfortunate that tax payer dollars were used to fight this in court, when common sense should have prevailed.”
The judge found that the requirement for police to check the immigration status of people they have stopped is racially discriminatory. She found that the law is “racially neutral.”
In order to win an injunction the Plaintiffs were required to show: “(1) that [he or she] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”
The Plaintiffs had also moved for summary judgment on their First Amendment challenge to the Section 5 day labor provisions, found in SB1070 (A.R.S. § 13-2928(A)-(B), and asked the Court “to permanently enjoin these provisions.”
Plaintiffs argued that the “day labor provisions under A.R.S. § 13-2928(A) and (B) imposed impermissible content-based restrictions on First Amendment protected speech and are not narrowly tailored to promote Arizona’s interest in traffic safety.”
The court granted in part and denied in part Plaintiffs’ Motion for Partial Summary Judgment and for Permanent Injunction. The judge ruled against the part of the law aimed at day laborers, and directed the Clerk to enter judgment in favor of Plaintiffs on Count Three (First Amendment).
A.R.S. § 13-2928(A) makes it unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic.
Ruling highlights:
A.R.S. § 13-2928(A) makes it unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. In the preliminary injunction stage, the Court and Ninth Circuit analyzed the day labor provisions as content-based commercial The Central Hudson test first evaluates “whether the affected speech is misleading or related to unlawful activity. If not, the government bears the burden of showing that it has a substantial interest, that the restriction directly advances that interest and that the restriction is not more extensive than necessary to serve the interest.”
It is undisputed that the day labor provisions are subject to First Amendment scrutiny as restrictions on lawful, non-misleading speech and that Arizona has a substantial interest in traffic safety. Even if the day labor provisions directly advance Arizona’s substantial interest in traffic safety—an issue the parties disputed in the preliminary injunction stage and dispute now on summary judgment—the restrictions “‘must not be more extensive than . . . necessary to serve’ a substantial government interest—i.e., [they] should not be over inclusive.” (“The last two steps of the Central Hudson analysis basically involve a consideration of the ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.”).11 Because the day labor provisions are not narrowly tailored to serve Arizona’s substantial interest in traffic safety, it is unnecessary to address whether Arizona’s evidence is sufficient to create genuine issues of material fact about whether the day labor provisions directly advance that traffic safety interest. This finding is consistent with the Ninth Circuit’s analysis addressing the preliminary injunction order on appeal.
The Ninth Circuit held that “[P]laintiffs [we]re likely to succeed on the merits of their claim that the day labor provisions are over inclusive because they restrict more speech than necessary to serve Arizona’s interest in traffic safety.” Arizona had not produced evidence that existing laws or other potential laws were insufficient to address “the traffic problems that may attend in street employment solicitation.” Id. (emphasis omitted). The opinion listed specific examples of traffic laws from the Ninth Circuit decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc), “that were broad enough to address the traffic concerns attending in-street employment solicitation without implicating speech.” Id. (listing California traffic laws from Redondo Beach that “prohibit[ed] jaywalking, stopping in traffic alongside a red-painted curb, stopping a car so as to obstruct the normal movement of traffic, standing in a roadway if such action interferes with the lawful movement of traffic and standing or stopping except as near as is physically possible to the building line or the curb line” (internal quotation marks omitted)). The Ninth Circuit found “[n]othing in the record show[ing] that Arizona could not effectively pursue its interest in traffic safety by enforcing or enacting similar kinds of speech-neutral traffic safety regulations.”
The Ninth Circuit also held that “[t]he day labor provisions are a poor fit with Arizona’s interest in traffic safety because, in this context, they are also under inclusive.” (“That the day labor provisions are under inclusive is . . . relevant . . . to whether they satisfy Central Hudson’s no-more-extensive-than-necessary prong.”). The Ninth Circuit explained that the Court properly “emphasized S.B. 1070’s purposes clause,[12] the fact that the day labor provisions provide penalties drastically out-of proportion to those for other traffic violations[,] and the legislative record”—“factors all support[ing] the [C]ourt’s conclusion that the day labor provisions are under inclusive because they are ‘structured to target particular speech rather than a broader traffic problem.’”
The Ninth Circuit concluded the analysis by noting that
Arizona could have advanced its interest in traffic safety directly, without reference to speech. The availability of such obvious and less-restrictive alternatives makes the day labor provisions overinclusive. They are also underinclusive because they draw content-based distinctions that appear motivated by a desire to eliminate the livelihoods of undocumented immigrants rather than to address Arizona’s interest in traffic safety.