Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 1 of 29

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Anne Lai (pro hac vice)
alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law – Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Telephone: (602) 229-5200

Jessica Karp Bansal (pro hac vice)
jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214

Attorneys for Plaintiffs
(Additional attorneys for Plaintiffs listed
on next page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,

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Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.

No. 2:14-cv-01356-DGC
LODGED: PROPOSED PLAINTIFFS’
REPLY TO THE COUNTY
DEFENDANTS’ JOINT RESPONSE IN
OPPOSITION TO PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 2 of 29

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Additional Attorneys for Plaintiffs:
Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
Kathleen E. Brody (SBA No. 026331)
kbrody@acluaz.org
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040

Cindy Pánuco (pro hac vice)
cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 3 of 29

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Anne Lai (pro hac vice)
alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law – Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Telephone: (602) 229-5200

Jessica Karp Bansal (pro hac vice)
jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214

Attorneys for Plaintiffs
(Additional attorneys for Plaintiffs listed
on next page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,
Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.

No. 2:14-cv-01356-DGC
PLAINTIFFS’ REPLY TO THE
COUNTY DEFENDANTS’ JOINT
RESPONSE IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT

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Additional Attorneys for Plaintiffs:
Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
Kathleen E. Brody (SBA No. 026331)
kbrody@acluaz.org
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040

Cindy Pánuco (pro hac vice)
cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600

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TABLE OF CONTENTS
I. THE ONLY APPLICATIONS OF THE WORKER IDENTITY PROVISIONS
THAT THE NINTH CIRCUIT PRESERVED ARE THOSE WHERE AN
EMPLOYEE USES FALSE IDENTITY INFORMATION FOR “NONIMMIGRATION REASONS” ........................................................................................ 2
A. Defendants Are Not Helped by the Law of the Case Doctrine ............................ 2
B. The Ninth Circuit Identified Immigration Preemption Precedents Relevant to
Plaintiffs’ As-Applied Claim and Spoke Positively of the United States’ Amicus
Brief ............................................................................................................................ 6
II. THE COUNTY DEFENDANTS’ THEORY OF PREEMPTION, IN ADDITION
TO BEING UNSUPPORTED BY THE NINTH CIRCUIT’S DECISION, WOULD
RESULT IN AN END RUN AROUND FEDERAL LAW............................................ 6
A. The Federally Preempted Field Has Already Been Defined by This Court ......... 7
B. The County Defendants’ Proposed Scope of Preempted Activity Makes Little
Sense ........................................................................................................................... 8
C. The County Defendants’ Use of the Term “Practical Effect” Demonstrates a
Misunderstanding of Preemption Law ...................................................................... 11
D. Rather Than Respond to the United States’ Amicus Brief, the County
Defendants’ Take the Extreme Position That the Court Should Not Consider It At
All .......................................................................................................................... 13
E. The County Defendants’ Dismissal of the United States’ Position Parallels Their
Dismissal of Federal Interests ................................................................................... 15
III. THE EVIDENCE OF DEFENDANTS’ PRACTICES IS MORE THAN
SUFFICIENT TO WARRANT AN INJUNCTION ..................................................... 17
A. The County Defendants Have Brought Thousands of Cases Under The Worker
Identity Provisions and Forgery Statute Against Undocumented Immigrants
Pursuant to a Policy, Pattern and Practice ................................................................ 17
B. Defendants Raise Numerous Red Herring Issues to Distract the Court from the
Material Evidence ..................................................................................................... 19
C. There Is No Merit to the County Defendants’ Remaining Arguments Against an
Injunction .................................................................................................................. 19
IV. EXPUNGEMENT IS AN APPROPRIATE REMEDY FOR PLAINTIFFS SARA
CERVANTES ARREOLA AND ELIA ESTRADA FERNANDEZ ........................... 20

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 6 of 29

The County Defendants’ response to Plaintiffs’ Motion for Partial Summary

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Judgment (“CD Br.”), Docs. 569, 572, fails to demonstrate why a trial would be

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necessary on Plaintiffs’ as-applied preemption claim. The uncontroverted record shows

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that Defendants they have collectively brought thousands of cases under the worker

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identity provisions1 and state forgery statute against undocumented immigrants over eight

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years, and that the conduct these employees are being punished for is fraud they commit

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in order to present themselves as being authorized to work under federal immigration

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law. Defendants cannot deny that these cases were brought pursuant to a policy, pattern

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and practice sanctioned at the highest levels of their respective agencies. And Defendants

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do not contest Plaintiffs’ standing for injunctive relief.

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In an effort to forestall an injunction in Plaintiffs’ favor, Defendants raise

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numerous collateral issues for the Court’s consideration. Insisting that preemption turns

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on the document that prosecutors choose to file charges on rather than the nature of the

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fraud being punished and whether it interferes with federal authorities’ ability to pursue a

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“delicate balance of [federal] statutory objectives,” Buckman Co. v. Plaintiffs’ Legal

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Committee, 531 U.S. 341, 348-49 (2012), Defendants point to statistical data about the

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number of instances where I-9s were charged alone or with another document.

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Suggesting that there can only be a conflict with federal law if federal authorities had

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sought to grant U/T visas or grant whistleblower protection to an arrested worker, they

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note that none of the Plaintiffs or witnesses in the case have received such status. And

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believing that enforcement activity is justified because Defendants seek retribution for

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crime victims, they refer to evidence of victim harms submitted with their motions for

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summary judgment. But none of the issues raised by Defendants change the core

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questions in the case. “Only disputes over facts that might affect the outcome of the suit

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under the governing law will properly preclude the entry of summary judgment.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986).

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For consistency, Plaintiffs will use the same terminology and acronyms in this brief that
they have used in their summary briefing, including their Motion for Partial Summary
Judgment (“Pls.’ MSJ”), Doc. 538.
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Expedited consideration of Plaintiffs’ motion is appropriate. Plaintiffs have not

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waived their request, and given Defendant Arpaio and Montgomery’s own statements,

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there is a substantial risk that delay will result in additional constitutional violations. The

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parties’ respective motions are fully briefed and the record is ripe for adjudication.

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Plaintiffs request that the Court proceed to judgment.

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I.

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THE ONLY APPLICATIONS OF THE WORKER IDENTITY PROVISIONS
THAT THE NINTH CIRCUIT PRESERVED ARE THOSE WHERE AN
EMPLOYEE USES FALSE IDENTITY INFORMATION FOR “NONIMMIGRATION REASONS”
In its decision on the preliminary injunction appeal, the Ninth Circuit held that a

facial challenge to the worker identity provisions was not likely to succeed because the
provisions had at least some constitutional applications. Puente Arizona v. Arpaio, 821
F.3d 1098, 1108 (9th Cir. 2016). The point the Ninth Circuit disagreed with the District
Court on was how the facial challenge standard in United States v. Salerno, 481 U.S. 739
(1987) should be applied. Id. at 1104, 1108. It did not disturb this Court’s other findings.
Predictably, Defendants try to make much of the reversal of the preliminary
injunction, citing to the “law of the case” doctrine and the mandate rule. See, e.g., CD Br.
at 4. But the Ninth Circuit’s opinion is not nearly as expansive as Defendants have made
it out to be, and those doctrines cannot help them. Indeed, the Ninth Circuit expressly left
open the possibility of an injunction on remand. Puente Arizona, 821 F.3d at 1105-08.
A. Defendants Are Not Helped by the Law of the Case Doctrine
The only “constitutional applications” of the worker identity provisions that the
Ninth Circuit discussed were those where a person “uses another’s identity for nonimmigration reasons.” Id. at 1104, 1106; see also CD Br. at 3. Defendants suggest that
the “law of the case” doctrine forecloses the possibility of an injunction, but they can
only get there by severely distorting what the Ninth Circuit did and defying the plain
meaning of its words.

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1. “Non-immigration reasons” is not synonymous with non-I-9 fraud
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The “law of the case” doctrine generally precludes a court from reconsidering an

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issue “decided explicitly” or “by necessary implication” in a prior disposition in the same

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case. United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (internal citation

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omitted). By definition, it applies only to issues actually decided; thus, “dicta has no

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preclusive effect.” Milgard Tempering v. Selas Corp. of Am., 902 F.2d 703, 715-16 (9th

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Cir. 1990). Here, Defendants propose that the Ninth Circuit has endorsed their view of

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the scope of preempted activity because “immigration” is synonymous with—and no

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broader than—the “I-9 system” or “IRCA’s federal employment verification system.”

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See, e.g., CD Br. at 4, 16. Thus, they surmise, they are free to use any documents other

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than the I-9—regardless of the context—under the law of the case. There are several

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reasons why Defendants’ reasoning is flawed.

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First, it should be obvious that Defendants cannot make two terms synonymous

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simply by putting an “i.e.,” between them. Cf. CD Br. at 16 (“County Defendants’

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enforcement . . . is not preempted where such enforcement does have a ‘practical effect’

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on immigration, i.e., the I-9 system.”) (emphasis changed). Viewed in context, the Ninth

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Circuit clearly meant something a bit different. When it described the use of another’s

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identity for “non-immigration reasons,” it was referring to examples such as where an

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individual, like a U.S. citizen, “use[s] another’s identity to hide [his or her] criminal

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record.” Puente Arizona, 821 F.3d at 1106; see also id. at 1102. In both places in the

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opinion where the Ninth Circuit referred to use for a “non-immigration” reason, it

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immediately followed those words with this example. Id.2 The Ninth Circuit was not

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talking about cases where an undocumented immigrant uses the same false identity

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information on a document other than the Form I-9. Indeed, even the “system” has to be

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understood as broader than just the Form I-9. See Pls’ MSJ at 15-16.

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While Plaintiffs do not impute any bad intent on Defendants, they note that in the one
place where Defendants included a block quote referencing the “non-immigration
reasons” language, they removed this example from the middle of the quote without
replacing it with any ellipses, giving the impression that the Ninth Circuit provided no
further context for what it meant by the term. See CD Br. at 7.
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Second, the use of documents for an “immigration reason[]” or “immigration-related

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reason[,]” Puente Arizona, 821 F.3d 1102, 1106, has a plain meaning, one that is

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inconsistent with Defendants’ theory. As the Ninth Circuit explained, people prosecuted

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under the worker identity provisions for an “immigration-related reason” included those

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who “used a false identity to prove that they are authorized to work in the United States.”

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Id. at 1102. Plaintiffs have explained elsewhere that undocumented immigrants who

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submit false identity information in the I-9 process have to complete other employment-

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related paperwork to get or maintain a job—and their use of the same false information

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on those other documents to maintain the same identity is still being done for an

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“immigration-related reason,” to “prove that they are authorized to work in the United

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States.” Id.; see also Pls.’ MSJ at 16 & SOF 85. While Defendants suggest that the

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motivation for completing these non I-9 documents is to “comply with employer business

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requirements . . . and/or state/federal tax requirements,” County Defendants’ Response to

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Plaintiffs’ Statement of Facts (“CDCSOF”) ¶ 85,3 that is the motivation for filling them

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out, not the motivation for filling them out with false identity information.

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Defendants’ responses in their controverting statement of facts focus substantially on
materiality. In disputing Plaintiffs’ Statement of Facts at ¶¶ 15, 21-22, and 24-25, Defendants
suggest that Representative Pearce also spoke about public safety concerns during the hearing
discussed by Plaintiffs in those paragraphs, but fail to identify any specific portion of the
respective hearings to support this contention, and cross-reference statements of fact citing to
portions of hearings other than those being discussed. Further, in disputing Plaintiffs’ Statement
of Facts at ¶¶ 65-67, 69, 71, 74-75, 115-117, 120, Defendants include a general boilerplate
statement that they dispute Dr. Earl’s finding/opinions and cite the entirety of Defendants’
experts reports/declarations without identifying any page numbers. Finally, Defendants object to
Plaintiffs’ Statement of Facts at ¶¶ 83, 113, claiming that Plaintiffs misrepresent MCAO policy
or stating simply that they partly dispute Plaintiffs’ statement, without explaining why. In all
these instances, Defendants fail to comply with Local Rule 56.1(b), which provides that a party
disputing a statement of fact must “reference . . . the specific admissible portion of the record
supporting the party’s position if the fact is disputed.” LRCiv. 56.1(b). Their responses to those
paragraphs, in relevant part, should therefore be disregarded. Saddiq v. Trinity Servs. Grp., No.
CV 13-01671-ROS-PHX, 2016 WL 4257157 at *9 & n.10 (D. Ariz. Aug. 3, 2016). Defendants

do not dispute Plaintiffs’ Statement of Facts at ¶¶ 1, 3, 8, 12, 14, 28, 30-31, 42, 46, 49-50,
52-53, 55, 56-58, 61-62, 70, 72-73, 77-80, 84, 86-87, 89-91, 94-95, 97-98, 100-103, 106107, 109, 119, 122-128, 130-132, 134-136, 142, 145, 147, 151, 153, 156-213, 215-216,
218-223, and those paragraphs can therefore “be deemed admitted for purposes of
[Plaintiffs’] motion for summary judgment.” LRCiv 56.1(b). Numerous other paragraphs
in Plaintiffs’ Statement of Facts are not genuinely disputed or disputed only in part.
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Third, Defendants attempt to rely on the Ninth Circuit’s discussion of the

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document use limitation to say that preemption cannot go broader than that. CD Br. at 12.

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That misreads what the court was doing. In that part of the opinion, the court was

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responding to a specific argument made by Plaintiffs based on the express provisions in 8

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U.S.C. § 1324a(b)(5), (d)(2)(F)-(G). It was by no means using its interpretation of the

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express use limitation to foreclose an implied preemption analysis.
2. The Ninth Circuit Did Not Overturn the District Court’s Findings About
Legislative Purpose and Specifically Instructed that Plaintiffs May Produce
Evidence of Legislative Purpose Again on Remand

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Like the State, the County Defendants suggest that the Ninth Circuit somehow

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found state legislative purpose to be irrelevant. MC Br. at 6. Based on this, they argue

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that this Court should not consider materials Plaintiffs submitted with their moving

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papers, including historical legislation, correspondence/emails, or articles. Id. at 6 n.4.

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But rather than treating state legislative purpose as extraneous, the Ninth Circuit affirmed

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that legislative purpose should be analyzed, and specifically invited Plaintiffs to produce

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evidence of intent on remand in connection with their as-applied preemption claim.

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Puente Arizona, 821 F.3d at 1106 & nn. 8-9.4
In addition, the Ninth Circuit agreed with the District Court’s assessment that the

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legislative purpose of both H.B. 2779 and H.B. 2745 showed a desire “to prevent

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unauthorized aliens from remaining in the state.” Id. at 1106. It did not find any clear

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error on the District Court’s part with respect to findings of fact. While Defendants would

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like to believe that the Ninth Circuit made a “finding” that the legislative purpose of the

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bills was to respond to the high numbers of FTC complaints, CDs Br. at 6, they

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misunderstand the role of an appellate court. The Ninth Circuit does not make factual

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findings in the first instance, and even if it could, the FTC reports do not appear in the

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Contrary to Defendants’ suggestion, CDs Br. at 6 n.4, the Ninth Circuit did not dismiss
evidence of purpose submitted by Plaintiffs from outside the legislative record—the court
simply did not specifically call it out. Such evidence remains probative as before. Further,
the County Defendants objected to several of Plaintiffs’ SOFs discussing emails and
articles on grounds of hearsay. CDCSOF ¶16, 17, 19, 23. Those emails and articles,
however, are admissible as evidence of former Representative Pearce’s state of mind
and/or under FRE 801(d)(1) (declarant-witness’s prior statement).
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legislative record. Thus, the more plausible explanation—and the only one that fits with

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the evidence—is that the Ninth Circuit believed one of the effects of the worker identity

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provisions was to respond to problem of identity theft in Arizona.5

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B. The Ninth Circuit Identified Immigration Preemption Precedents
Relevant to Plaintiffs’ As-Applied Claim and Spoke Positively of the
United States’ Amicus Brief

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Contrary to Defendants’ assertions, the Ninth Circuit decision, rather than helping

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Defendants, is more favorable to Plaintiffs. The court reviewed recent preemption

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precedents such as Valle del Sol, 732 F.3d 1006 (9th Cir. 2012), Arizona Dream Act

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Coal. V. Brewer, 818 F.3d 901 (9th Cir. 2016), and Arizona, v. United States, 132 S. Ct.

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2492, (2012). Puente Arizona, 821 F.3d at 1106-07. While it found them distinguishable

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for purposes of analyzing Plaintiffs’ facial claim, the court specifically explained that the

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cases would be more “persuasive” for their as-applied claim. Id. In addition, the Ninth

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Circuit found the amicus brief submitted by the United States—which Plaintiffs’ cite in

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their motion—to have been “helpful.” Id. at 1105 n.7.

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II. THE COUNTY DEFENDANTS’ THEORY OF PREEMPTION, IN
ADDITION TO BEING UNSUPPORTED BY THE NINTH CIRCUIT’S
DECISION, WOULD RESULT IN AN END RUN AROUND FEDERAL LAW

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The County Defendants fail to argue their case according to the standards of

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preemption law, and instead insist—without support or analysis—that their conduct

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simply has no effect on federal immigration policy. A state law or local enforcement

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policy is preempted when it punishes conduct in a field that “Congress, acting within its

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proper authority, has determined must be regulated by its exclusive governance.”

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Arizona, 132 S.Ct at 2501. Where the federal government has fully occupied a field,

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states may not enter it “in any respect,” even with ostensibly complementary or auxiliary

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activity. Id. at 2501-02 (emphasis added). Alternatively, Defendants’ conduct is conflict

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preempted if it “stands as an obstacle to the accomplishment and execution of the full

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The County Defendants further argue that because they were not responsible for the
State’s enactment of the worker identity provisions, legislative history evidence regarding
their purposes should be disregarded. But the lack of the County Defendants involvement
does not mean legislative history is irrelevant to the as-applied claim. The Ninth Circuit
said as much. Puente Arizona, 821 F.3d at 1106 n.9.
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purposes and objectives of Congress,” id. at 2501 (citations omitted), for example, by

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“undermin[ing] the congressional calibration of force” brought to bear on an activity,

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Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 380 (2000). The investigation,

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arrest, detention and prosecution of undocumented workers for fraud to demonstrate

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authorization to work—whether based on a Form I-9 or another document—is, as already

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determined by this Court, both field and conflict preempted.

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A. The Federally Preempted Field Has Already Been Defined by This Court

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When discussing the “law of the case,” Defendants neglect to mention that this

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Court has already found that Congress has exclusively occupied the field of

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“unauthorized-alien fraud in obtaining employment.” Doc. 133 at 22-23. The Ninth

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Circuit did not disturb this finding, holding instead that the worker identity provisions

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were not preempted because they regulated some conduct outside this field. Puente

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Arizona, at 1106. The difference here with Plaintiffs’ as-applied claim is that focuses

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only on the subset of applications of the worker identity provisions (and forgery statute)

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that fall within the federally preempted field. Defendants’ reference to the Ninth Circuit’s

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reasoning, Ds Br. at 10-11, is therefore unavailing.
Defendants try to manufacture a reason to deny summary judgment by

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misrepresenting the scope of activity Plaintiffs seek to enjoin. They state that the Ninth

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Circuit has rejected Plaintiffs’ “repeated argument here asserting an alleged preemptive

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field of “fraud in employment.” Id. But Plaintiffs made very clear in their moving papers

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what they believe is preempted, Pls.’ MSJ at 3, 13, 15-16, and the field is not so broad.6

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Plaintiffs’ argument is that Arizona’s worker identity provisions and forgery statute are
both field and conflict preempted as applied to individuals who commit fraud: (1) in the
Form I-9 process, and/or (2) to otherwise demonstrate authorization to work under
federal immigration law. Id. The other terms Defendants refer to when they characterize
Plaintiffs’ field as a “moving target,” CDs Br. at 10 n.6—e.g., “fraud by undocumented
immigrants in seeking employment,” “fraud by employees to demonstrate authorization
to work in the United States,” “fraud in response to the federal work authorization
requirement”—are all intended to serve as shorthand for this same field. In a couple
places, Plaintiffs refer to fraud committed by “undocumented immigrants in the
employment context,” Pls.’ MSJ at 14, 16, but that term, when read in context, is also
intended to mean the same thing. Plaintiffs acknowledge there may be a rare case where
an undocumented immigrant commits fraud in employment for reasons other than to
demonstrate authorization to work. In that case, Defendants would be able to show that
7

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 13 of 29

1

Indeed, insisting on a field of all “fraud in employment” would be indeliberate, and that

2

has never been Plaintiffs’ intent, not even for their facial challenge.

3

Notably, this Court found that Congress had occupied the field of “unauthorized-

4

alien fraud” in seeking or obtaining employment assuming a presumption against

5

preemption applies.7 Cf. CDs’ Br. at 4-10, 13, 16, 21, 24, 29.

6

B.

The County Defendants’ Proposed Scope of Preempted Activity Makes
Little Sense

7

Defendants continue to take the position that the only activity that is preempted is

8

prosecution based on a Form I-9. CDs Br. at 12, 13, 17 (“Plaintiffs do not dispute that

9

90% of Employment Prosecutions do not rely on evidence of the I-9 Form.”). In other

10

words, the only enforcement action Defendants cannot take is that which is expressly

11

prohibited by federal law. But that ignores the well-established rule that Congress may

12

preempt state and local action by implication.8 And as this Court explained and the

13

United States amicus brief echoed, the existence of an express limitation in federal law

14

“‘does not’ bar the ordinary working of [] pre-emption principles.’” Doc. 133 at 26-27

15

(quoting Arizona, 132 S. Ct. at 2504-05; Amicus Brief of the United States (“U.S. Br.”),

16

Puente Arizona v. Arpaio, No. 15-15211, 2016 WL 1181917, at *14-15 (9th Cir. March

17
18
19
20
21
22
23
24
25
26
27
28

prosecution is for another reason and their ability to take enforcement action would not
be affected by Plaintiffs’ requested injunction. Cf. CDs Br. at 26 (describing example of a
person who presents a false driver’s license to demonstrate commercial or passenger
driver’s license credentials or bypasses a criminal background check to enter a secure
area); Plaintiffs’ Consolidated Opposition to Defendants’ Motions for Summary
Judgment (“Pls.’ Opp. to Ds MSJs”), Doc. 588, at 35.
Defendants also suggest that Plaintiffs use of a header relating to the federal field
“governing employment of undocumented immigrants” is improper. CDs Br. at 11 n.6.
But Plaintiffs used this header in the background section to describe relevant federal law,
since the field of fraud in response to the federal work authorization requirement—which
Plaintiffs contend is fully occupied—is part of a broader legal and policy framework
regulating the employment of immigrants—which Plaintiffs do not at this time contend is
preempted. See Pls.’ MSJ at 14 (explaining relevance of broader policy framework in
field preemption analysis under Valle del Sol).
7
In its preliminary injunction ruling, this Court did not explicitly decide whether the
presumption against preemption applies and simply assumed that it did for purpose of its
analysis. Doc. 133 at 27. The Ninth Circuit did reach the issue, and found the
presumption to apply. Puente Arizona, 821 F.3d at 1104. Plaintiffs do not contest that for
purposes of summary judgment, but reserve the issue for trial, if there should be one.
8
This has routinely been the case in the area of immigration. See Pls.’ MSJ at 13-15 and
authorities cited therein.
8

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 14 of 29

1

25, 2016). In fact, it is the other way around. As the case law explains, where a scheme

2

directly evidences an intent to limit the role of the states—such as here, through the

3

express use provision—such evidence serves as further support for preemption of the

4

whole field. Valle del Sol, 732 F.3d at 1026. CDs Br. at 14.

5

As a preliminary matter, as Plaintiffs have pointed out many times before,

6

Defendants reading of the use limitation is itself unreasonably narrow. As the Supreme

7

Court explained, it is not only the I-9 but any information “employees submit to indicate

8

their work status” as part of the employment verification process that is covered. Arizona,

9

132 S. Ct. at 2504. This includes “copies or electronic images of documents . . . used to

10

verify an individual’s identity or employment eligibility,” such as state driver’s licenses

11

and Social Security cards, 8 C.F.R. § 274a.2(b)(4); 8 U.S.C. § 1324a(b)(1)(C)-(D), and

12

any “personal information utilized by the [employment verification] system,” 8 U.S.C. §

13

1324a(d)(2)(C). See also Pls.’ MSJ at 15-16. And the prohibition is not just on reliance of

14

a document as admissible evidence, but any use, including in an investigation. Id. at 16.

15

Even copying of these documents is prohibited unless done for the purposes of

16

complying with federal law. 8 U.S.C. § 1324a(b)(4).
Defendants acknowledge that driver’s licenses and Social Security cards would be

17
18

submitted as part of the verification process, but they apparently take the view that

19

reliance of those documents seized from employers—whether submitted as part of the I-9

20

process or not—is only prohibited if they are charged together with an I-9 in a complaint

21

or indictment.9 This, of course, makes no sense. Under Defendants’ theory, they would be

22

free to charge an undocumented worker for offering a false Social Security card that they

23

know was submitted for the verification process simply by foregoing a separate count

24

based on the I-9.10

25
26
27
28

9

They then argue that the number of cases where that has occurred is not sufficient for
Monell
liability, an argument Plaintiffs address infra at 18.
10
MCAO does not make any effort to avoid using documents obtained from an employer
that were used only for the verification process, and do not try to determine if this is the
case or not. Pls.’ SSOF ¶ 272. Perhaps in an effort to overcome this, Defendants contend
that “offenders routinely use another’s identity on state driver’s licenses/state
identification cards or social scrutiny numbers/cards to complete a variety of [other
9

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 15 of 29

1

However, even if Defendants were not charging anyone based on a document

2

submitted in the employment verification process, that does not end the inquiry.

3

Defendants assert that documents like tax forms11 are not directly regulated by IRCA or

4

federal immigration fraud statutes. CDs Br. at 12. This is not what preemption turns on.

5

In establishing the employment verification scheme and the requirement that all

6

employees have to demonstrate authorized status in order to work, Congress balanced

7

numerous interests discussed at length in Pls.’ MSJ at 4-7. It reserved for federal

8

authorities the prerogative of deciding how to use the array of civil, criminal and

9

immigration penalties to address fraud by undocumented workers (sometimes with the

10

involvement and encouragement of employers) who try to evade that requirement. As set

11

forth more fully in Pls.’ MSJ at 5-6, 14-15, discretion and versatility are “critical” to

12

federal officials’ ability to pursue the “delicate balance of statutory objectives.” Id. at 15

13

(quoting Buckman, 531 U.S. at 348-49). What Defendants propose is that they should be

14

able to prosecute the same individuals for fraud that they commit for the same purpose,

15

so long as by the time it comes time to file charges, prosecutors can identify at least one

16

other document—an employment application, employee manual acknowledgment, tax

17

form, etc.—that an employee has completed with the same name or identifying

18

information while working at a business. See Pls.’ MSJ at 16. But Congress would not

19

have gone through such lengths to create a comprehensive federal scheme just to have

20

federal control so easily wrestled away by enterprising local officials who have a

21

different vision of what should happen to undocumented workers.

22
23
24
25
26
27
28

documents] such as job applications, tax forms . . . .” CDs Br. at 13. But in all cases it
would be the false identity information that is used on those other documents. The fraud
is prompted by the need to demonstrate work authorization status; no driver’s license or
Social Security card is needed once it has been provided for the I-9.
11
Defendants also make much of the fact that they charge many cases based on a W-4 or
A-4 tax withholding forms. See, e.g., CDs Br. at 17. Separate laws restrict the use that
may be made of those documents, see e.g., 26 U.S.C. § 6103; A.R.S. § 42-2003, and it is
not clear if Defendants are complying with those laws. In any event, Defendants’
contention that it is employees’ submission of false identity information on a tax
withholding form (as opposed to a W-2 or other form submitted by the employer to IRS)
that would cause victims financial harm is entirely unsupported. See Pls.’ Resp. to
Montgomery SOF ¶ 6.
10

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 16 of 29

1

Rather than endorsing a “tidal wave of lawlessness,” CDs Br. at 12, 26-27, what

2

Plaintiffs propose is much less extreme. Plaintiffs’ proposal is that the Court restore

3

meaningful control to federal authorities over the punishment of fraud in response to the

4

federal employment verification requirement. Far from immunizing undocumented

5

workers from punishment, this would allow federal authorities to make their own

6

decisions about which individuals to prosecute and carry out policies that further a range

7

of interests. Defendants may not like that result, and equate it with “lawlessness,” but that

8

is not what it is. Put another way, Plaintiffs’ proposal ensures that the federal verification

9

system and the requirement to show authorized status to work is not appropriated for

10

local use. See 8 U.S.C. § 1324a(d)(2)(F) (prohibiting “use[]” of “[t]he system” for any

11

non-enumerated “law enforcement purpose[]”).

12
13
14
15
16
17
18
19
20
21
22
23
24

C. The County Defendants’ Use of the Term “Practical Effect” Demonstrates
a Misunderstanding of Preemption Law
In multiple places, Defendants articulate the test for preemption as turning on
whether or not state or local enforcement activity has a “practical effect” on immigration.
See, e.g., CDs at 6, 26. Defendants seem to use this language because it appears in the
Ninth Circuit decision, id., but they fail to understand its import.
First, the “purpose” and “effects” test is an analytical tool that the Supreme Court
and the lower courts have adopted when a state measure that is textually neutral or that
regulates in a federal area only sometimes is challenged as preempted. See Gade v. Nat'l
Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 105-06 (1992); S. Pac. Transp. Co. v. Pub. Util.
Comm’n of State of Or., 9 F.3d 807, 811 (9th Cir. 1993) (citing English v. Gen. Elec. Co.,
496 U.S. 72, 84, (1999) (requiring that state law have some direct and substantial effect
in federal field). Both prongs are important, and they allow a court to discern the true

25

“target at which the state law aims.” Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-

26

1600 (2015) (emphasis in original). For Plaintiffs’ facial claim, it made complete sense

27

for this Court and the Ninth Circuit to examine evidence of state legislative purpose and

28

practical effect. As discussed above, however, Plaintiffs’ as-applied claim focuses only
11

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 17 of 29

1

on the subset of applications of the worker identity provisions (and forgery statute) that

2

fall within the federally preempted field of punishing fraud to demonstrate authorization

3

to work in the United States. Anything outside of this field is not part of Plaintiffs’ claim.

4

There is therefore no need to analyze whether Defendants’ policies and practices have a

5

substantial “practical effect” on the preempted field. That analysis would be redundant.

6

For Plaintiffs’ conflict preemption argument, however, there is an inquiry the

7

Court must undertake that is similar to—and perhaps easily confused with—a practical

8

effects analysis. To determine whether a state or local policy poses an “obstacle to the

9

accomplishment and execution of the full purposes and objectives of Congress,” Arizona,

10

132 S. Ct. at 2501 (internal citation omitted), a court should evaluate not only its formal

11

terms, but “practical result.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062-

12

63 (9th Cir. 2014) (“In considering whether a state law is conflict-preempted, ‘we

13
14
15
16
17
18
19
20
21
22
23
24

consider the relationship between state and federal laws as they are interpreted and
applied, not merely as they are written.’”) (internal citation omitted). Where, as here,
Congress intended to reserve “prosecutorial power, and thus discretion,” Valle del Sol,
732 F.3d at 1027, to federal officials, a state or local policy that provides for subfederal
prosecution of undocumented workers for fraud to demonstrate authorization to work,
even if not styled as an immigration policy, “inevitably” and actually conflicts with
federal law. Buckman, 531 U.S. at 350 (emphasis added); cf. CDs Br. at 25.
The County Defendants do not contest that their enforcement policies layer
additional and different penalties on top of federal law, see Pls.’ MSJ at 14-15, but they
argue that there is no conflict preemption because they are regulating different activity
than federal law. CDs Br. at 13-14. To understand whether use of a false identity on non-

25

I-9 documents to be consistent with information workers provide in the employment

26

verification status is the same activity for these purposes as use of a false identity on an I-

27

9, this court must view the situation through a practical lens. If local officials come across

28

an undocumented worker who committed fraud in the I-9 process that federal authorities
12

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 18 of 29

1

would choose not to punish—perhaps to encourage reporting of crimes or allow someone

2

who is DACA eligible to receive deferred action—it would defeat the purpose of the

3

government’s exercise of discretion for local officials to arrest, detain and prosecute that

4

same worker. It matters little whether local officials ultimately choose to charge the I-9 or

5

one of the several other documents the worker had to fill out with a name and Social

6

Security number to get the job. As the United States explained, the disruption to the

7

system Congress created is the same. U.S. Br. at *14-21 (describing the reliance on

8

information from other documents to be punishment for “the very same fraud”); cf CDs

9

Br. at 16 (suggesting such prosecution has no effect on immigration).12, 13

10
11

D. Rather Than Respond to the United States’ Amicus Brief, the County
Defendants’ Take the Extreme Position That the Court Should Not
Consider It At All

12

In their moving papers, Plaintiffs cited the United States amicus brief filed with

13

the Ninth Circuit in this matter. Pls.’ MSJ at 2, 4, 5, 7, 15-16. The brief was solicited by

14

the Ninth Circuit and described by the panel as “helpful” to the preemption questions.

15

Puente Arizona, 821 F.3d at 1105 n.7; U.S. Br. at *1. Defendants choose not to contest

16

the points made by the United States on their merits, and argue instead that the brief

17

should be dismissed out-of-hand. CDs Br. at 14-15. Defendants’ attempt to discount the

18

12

19
20
21
22
23
24
25
26
27
28

Plaintiffs submitted with their moving papers ample evidence that undocumented
individuals who were the subject of Defendants’ enforcement actions had used the same
identity information on other employment documents as on the I-9. The Court, applying
common sense, can reasonably infer that their purpose for using false identity
information on the other documents was to present themselves as being authorized to
work. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2317 (2016) (“Courts
are free to base their findings on commonsense inferences drawn from the evidence.”);
see also Pls.’ SOF ¶ 72 (testimony of Vicki Kratovil that it is “legally” and “factually”
obvious that undocumented workers would have to “use someone else’s documents to
work”); CDCSOF ¶¶ 173, 177-78, 182-83 (not disputing statements from Doe declarants
that they had to use false identifying information on documents, including non-I-9
documents, because they are undocumented and don’t have a Social Security number).
13
The County Defendants also try to argue that, if there is any overlap between their
enforcement policies and federal law, it is with respect to only a single statute, 18 U.S.C.
§ 1028. CDs Br. at 14. They cobble together arguments about the text and history of that
statute, federal removal cases and FTC materials that they say evince an intent across
three “branches of the federal government” that their policies can co-exist harmoniously
with the federal scheme. Id. at 14-15. Plaintiffs have extensively addressed Defendants
flawed and problematic reasoning elsewhere, see Pls.’ Opp. to Ds MSJ at 4-5, 30-31;
Pls.’ Resp. to AZSOF ¶¶ 13-16; Pls.’ Resp. to Montgomery ¶ 34-36, and will not repeat
those arguments again here.
13

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 19 of 29

1

United States’ brief is unconvincing.
The arguments put forward by the United States fall within “the classic role of

2
3

amicus curiae”—“assisting in a case of general public interest.” See Funbus Sys, Inc. v.

4

State of Cal. Pub. Utils. Comm’n, 801 F.2d 1120, 1125 (9th Cir. 1986). Federal courts

5

routinely draw on the arguments and expertise of amici who provide “unique information

6

or perspective that can help the court.” NGV Gaming, Ltd. v. Upstream Point Molate,

7

LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005). Moreover, the United States has a

8

special role as amicus curiae in the federal courts, functioning as an always-available

9

expert. FRAP 29(a) (describing standing invitation to the United States to file amicus

10

briefs); see also Universal Oil Prod. Co. v. Root Ref. Co., 328 U.S. 575, 581 (1946).

11

Courts frequently seek out and rely on its views. See, e.g., Astra USA, Inc. v. Santa Clara

12

Cty., Cal., 563 U.S. 110 (2011) (relying on amicus brief when interpreting congressional

13

intent); K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1026, 1027 n.1 (9th Cir.

14

2011) (reaching the conclusion recommended by the United States as invited amicus

15

“with the aid of [its] briefing”).

16

Reliance on the United States’ amicus briefs is especially appropriate in the

17

preemption context, where—as here—the United States has unique insight into the

18

relevant federal statutory scheme and how state law may interfere with federal law and

19

interests. See Pls.’ MSJ at 2-7, 15-16; see also, e.g., Geier v. Am. Honda Motor Co., 529

20

U.S. 861, 868 (2000) (adopting interpretation of preemption provision advanced in

21

United States); Humana Inc. v. Forsyth, 525 U.S. 299 (1999) (citing government’s

22

amicus brief in discussion of congressional intent); Ariz. Dream Act Coal. v. Brewer, 818

23

F.3d 901, 906, 918 (9th Cir. 2016) (relying on information in United States’ amicus brief

24

regarding the need for prioritization in immigration enforcement).14 There is no question

25
26
27
28

14

Defendants cite a single case to suggest that “the Ninth Circuit and Supreme Court
have consistently rejected” the government’s position on preemption. Id. A single
instance can hardly overcome the many examples of courts citing such briefs
approvingly. Defendants’ assertion that amicus briefs “cannot render unconstitutional an
otherwise valid state law,” CDs Br. at 15, also misses the point. No one is contending that
the United States’ amicus brief in this litigation is the reason for preemption.
14

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 20 of 29

1

that federal district courts may take into account legal arguments in United States’ amicus

2

briefs. See, e.g., Equal Emp’t Opportunity Comm’n v. Peabody W. Coal Co., No. 2:01-

3

cv-01050, 2012 WL 5034276 at *5 n.36 (D. Ariz. Oct. 18, 2012) (citing governmental

4

amicus briefs in three different cases); In re Wash. Mut. Overdraft Prot. Litig., 539 F.

5

Supp. 2d 1136, 1145 (C.D. Cal. 2008) (taking judicial notice of an amicus brief filed by

6

the government at the Ninth Circuit).15

7

E. The County Defendants’ Dismissal of the United States’ Position Parallels
Their Dismissal of Federal Interests

8

Several of the “competing” interests reflected in the federal statutory scheme and

9

which federal officials balance when they carrying it out include securing the cooperation

10

of undocumented immigrants in reporting labor violations and serving as witnesses in

11

high-priority proceedings. Pls.’ MSJ at 5-7, 15; see also U.S. Br. at *18-21. In addition,

12

federal officials have to consider relationships with foreign nations when deciding how to

13

treat undocumented immigrants employed domestically. The ability to protect foreign

14

nationals within our borders from mistreatment has important consequences for the

15

“reciprocal treatment of American citizens abroad.” Pls.’ MSJ at 7 (internal citations

16

omitted). The undisputed record shows that the County Defendants’ enforcement

17

practices fail to take these interests into account, reflecting their further conflict with

18

federal law. Id. at 24.

19

Instead of impugning Plaintiffs’ evidence of federal interests16 or of Defendants’

20

failure to conform enforcement practices to federal law, Defendants focus narrowly on

21

whether there were any workers arrested who would have been eligible for or applied for

22

U/T visas or whether Defendants “inhibited federal agencies from . . . granting protected

23

status to whistleblowers.” CDs Br. at 22-23. This gets the analysis backwards. The

24
25
26
27
28

15
16

It is therefore irrelevant that the brief is not part of the “factual record,” CDs Br. at 14.
In response to Pls.’ SOF ¶ 4, Defendants object on grounds of hearsay and point out
that “72%-46% of ICE’s criminal arrests . . . were employee arrests.” CDCSOF ¶ 4. But
the CRS Report is admissible under FRE 803(8)(a)(i) as a statement of ICE’s activities.
Further, Defendants neglect to mention that the percentage of employees criminal
prosecuted experienced a steep decline after 2009, consistent with ICE’s renewed focus
on “criminally investigating and prosecuting employers.” CRS Report at 7-8.
15

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 21 of 29

1

question is not whether Defendants prevented anyone from getting relief, but whether

2

their enforcement actions have thwarted the underlying policy benefits to be gained by

3

offering federal relief.17 The fact that workers did not complain more reinforces

4

Plaintiffs’ point that enforcement had a detrimental effect on their willingness to come

5

forward and cooperate with authorities. Plaintiffs have also submitted evidence, much of

6

it not genuinely disputed, that Defendants’ enforcement in fact did chill workers from

7

reporting labor violations, at least until they were arrested. Pls.’ SOF ¶¶ 148, 153-55.18
The County Defendants contend that the federal laws and policies Plaintiffs point

8
9

to relating to the labor rights of immigrants “have nothing to do with identity theft and

10

forgery,” CDs Br. at 22, but of course, the potential criminal prosecution of

11

undocumented immigrants for conduct they engage in to work has everything to do with

12

whether or not they would feel comfortable coming forward with reports about abuses.

13

Federal authorities can remove the fear of prosecution (and thereby encourage

14

cooperation), see Pls.’ MSJ at 7, but not if state actors can step in and undo their

15

discretionary decisions.19,20

16
17
18
19
20
21
22
23
24
25
26
27
28

17

For the same reason, it matters little that employees who may receive U and T visas
may eventually not have to continue using false identity information to work. Cf. CDs Br.
at 22.
18
Defendants assert there is no evidence that Fernando Abundez Gonzalez and Valentin
Villanueva Fernandez were victims of U visa qualifying crimes, but Defendants’ list of
qualifying offenses is incomplete. CDs Br. at 23. Defendants exclude extortion,
blackmail, perjury, witness tampering, and obstruction of justice, see USCIS, Victims of
Criminal Activity: U Nonimmigrant Status,
at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victimscriminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrantstatus, some of which appear to have occurred at Uncle Sam’s. See Pls.’ SOF ¶ 154.
While MCAO has moved to unseal the plea/testimonial agreements that Mr. Abundez
Gonzalez and Mr. Villanueva Fernandez entered into, such unsealing is entirely
unnecessary, since neither had to do with their reports of labor rights violations. Abundez
Gonzalez Decl. ¶¶ 17-18; Villanueva Fernandez Decl. ¶¶ 1617.
In addition, Defendants suggest that because undocumented members of Puente still
attend functions that they must not be afraid. CDCSOF ¶ 247. This is flatly contradicted
by the record. Pls.’ SOF ¶ 185-86.
19
Indeed, the trafficking victims statute is explicit about identity theft, stating that
trafficking victims should not be inappropriately prosecuted for “using false documents.”
22 U.S.C. § 7101(b)(19).
20
Defendants protest that the DHS-DOL MOU is not relevant because it addresses only
civil, rather than criminal, enforcement. CDs Br. at 24. But this simply reflects the reality
that much of the federal enforcement activity against undocumented workers is civil, not
criminal. In entering into the MOU, federal authorities recognized that even civil
16

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 22 of 29

1

In addition, Defendants suggest that Chamber of Commerce v. Whiting, 563 U.S.

2

582 (2011) somehow precludes Plaintiffs’ conflict preemption theories. But Whiting dealt

3

with an entirely different issue—namely, whether Arizona’s imposition of sanctions on

4

employers might exacerbate discrimination in the I-9 process. Id. at 605. The issue here is

5

whether enforcement by state and local actors against employees undermines the federal

6

interest in not making workers more vulnerable to exploitation than they already were.

7

See Pls.’ MSJ at 24 (citing Arizona, 132 S. Ct. at 2504).

8

Regarding Defendants’ arguments about the impact on foreign relations, the point

9

is not whether there is a federal “policy . . . in favor of identity theft being committed by

10

foreign nationals.” CDs. Br. at 24. Defendants’ singular and systematic focus on criminal

11

punishment of other countries’ nationals who are working in the United States, however,

12

impacts the ability of federal officials to carry out the nation’s foreign policy agenda.

13

Pls.’ MSJ at 7; U.S. Br. at *20.21

14
15
16
17

III. THE EVIDENCE OF DEFENDANTS’ PRACTICES IS MORE THAN
SUFFICIENT TO WARRANT AN INJUNCTION
A. The County Defendants Have Brought Thousands of Cases Under The
Worker Identity Provisions and Forgery Statute Against Undocumented
Immigrants Pursuant to a Policy, Pattern and Practice
Between 2007 and 2015, MCSO submitted at least 697 employment-related

18

identity theft and forgery cases, and MCAO prosecuted a total of 1,864 such cases, the

19

vast majority of which were brought against undocumented immigrants. Pls.’ SOF ¶¶ 70-

20

71, 75-76. Forgery charges played a prominent role in employment-related cases, Pls’

21

SOF ¶ 76. The reliance on forgery in employment-related cases even grew as MCAO

22

charging of forgery cases in general was on the decline. Id.22

23
24
25
26
27
28

enforcement against undocumented workers may interfere with their ability to gain the
workers’ trust and cooperation.
21
Plaintiffs assert no private cause of action under NAFTA, cf. CDs Br. at 24 n.13, but
present
information about the NAALC as probative evidence of federal interests.
22
Defendants appear to criticize Dr. Earl’s findings about the growth in forgery cases
against undocumented individuals in the years after 2007. CDCSOF ¶ 69. But Dr.
Cohen’s criticism of Dr. Earl’s use of forgery as a baseline has nothing to do with the
finding discussed in Pls.’ SOF ¶ 69. Regarding her use of forgery as a baseline when
LEAs referral of employment-related identity theft/forgery cases, her reasons are
explained at pages 33-34 of her rebuttal report.
17

Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 23 of 29

1

Defendants do not genuinely dispute Plaintiffs’ numbers. Instead, they point to

2

what they characterize as low percentages of cases where MCAO charged a Form I-9

3

alone or together with a state driver’s license/identification card or Social Security card.

4

CDs Br. at 12, 17-18. They suggest that these percentages are not sufficient to show a

5

policy or practice for Monell liability. Id. But the policy alleged and challenged by

6

Plaintiffs is the prosecution of individuals for fraud in response to the federal

7

employment verification requirement. Even if the Court were to find that only the use of

8

an I-9 and associated documents is preempted, the instances where MCSO or MCAO did

9

rely on those documents can still be enjoined, because the constitutional violation still

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flows from the broader, officially-sanctioned policy, pattern and practice. See Chew v.

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Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (municipal policy “need only cause [the]

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constitutional violation; it need not be unconstitutional per se[]”).23
Defendants present self-serving statements from Arpaio and Montgomery

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disclaiming any immigration-related purpose for their enforcement policies. CDs Br. at 8

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& n.5. But summary judgment on Plaintiffs’ as-applied claim does not depend on

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Defendants having any such purpose. A systematic pattern of enforcement in the

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federally preempted area endorsed by authorized policymakers is sufficient. See Fuller v.

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City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995) (quoting Pembaur v. City of

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Cincinnati, 475 U.S. 469, 483-4 (1986)). 24 Plaintiffs have submitted ample evidence that

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Defendants Arpaio and Montgomery were well aware of their subordinates’ prosecution

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of undocumented workers and, in some cases, even encouraged it. Pls.’ MSJ at 17-18.25

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28

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For reasons explained in Plaintiffs’ summary judgment opposition papers, MCAO’s
change in policy after the filing of this lawsuit does not moot any claim Plaintiffs may
have against MCAO’s use of Form I-9s. Pls.’ Opp. to Ds. MSJ at 32-33. Of course,
MCSO continued to rely on and seize I-9s until the CEU was disbanded. Pls.’ SOF ¶ 80.
Cf. CDs Br. at 25.
24
Plaintiffs offered such evidence of purpose to reinforce the notion that Defendants’
policies
and practices were not accidental.
25
Plaintiffs discussion of the nature of tips MCSO received to its “Ilegal Immigration
Hotline” was to show that tips were about undocumented immigrants working, not to
suggest that they were not screened before they were acted on. Cf. CDCSOF ¶ 225.
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Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 24 of 29

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B. Defendants Raise Numerous Red Herring Issues to Distract the Court
from the Material Evidence

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On pages 18-21, Defendants raise numerous issues that are irrelevant to Plaintiffs’

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as-applied claim. First, they maintain that there is no evidence that Defendants’ actions

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have caused individuals to leave the state. CDs’ Br. at 18-19. That is not Plaintiffs’

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contention with respect to the County Defendants’ policies. Next, they disclaim any

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differential treatment or targeting of offenders based on immigration status. CDs’ Br. at

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20-21; see also CDs’ Br. at 16-17. Plaintiffs have already addressed this in their summary

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judgment opposition briefing. See Pls.’ Opp. to Ds’ MSJ at 17-18, 21. Third, Defendants

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argue that MCAO’s assignment of employment-related identity theft and forgery cases to

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the Special Crimes Bureau is not a preempted action. CDs’ Br. at 19-20. But Plaintiffs

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presented evidence about the assignment of cases to Special Crimes rather than FITE to

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show that MCAO viewed the cases as related to illegal immigration, not to argue that the

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assignment itself is a preempted action.26
Finally, Defendants re-raise arguments they made in their summary judgment

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motions about victims and victim complaints. CDs’ Br. at 4, 9-10, 26. But like before,

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they do not establish why such information is relevant, since the legality of Defendants’

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actions either rise or fall on federal law. As this Court has explained, it is never equitable

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or in the public interest to violate the constitution. Pls.’ MSJ at 32; Doc. 440 at 3.

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C. There Is No Merit to the County Defendants’ Remaining Arguments
Against an Injunction

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In a final effort to avoid an injunction, Defendants suggest that no injunction

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28

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Dr. Cohen testified that it makes sense for Bureaus to specialize only strengthens
Plaintiffs’ case. CDCSOF ¶ 236. But if any Bureau had the expertise to handle identity
theft and forgery cases, it was FITE. See Pls.’ SOF 100-101, 103, 105. Instead, in 2008,
and then again in 2010, MCAO assigned primary responsibility for employment-related
identity theft and forgery cases to the Bureau that, among other things, was prosecuting
“Illegal Immigrant Crimes.” See Pls.’ SOF 78-79.
As Dr. Cohen notes, for a short time in 2010, the employment-related cases were
directed to the FITE Bureau. Defendants point out that while the number of such cases
handled by FITE was lower, the proportion brought against undocumented immigrants
was similar to that of Special Crimes. Cohen Third Decl., CASOF Ex. 4, Tables 1 & 3.
This seems to reflect little more than the common sense observation, which Plaintiffs
have made elsewhere, that the enforcement of state employment-related identity theft and
forgery cases is most likely to impact undocumented immigrants. See also Pls.’ SOF 72.
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against MCSO would be appropriate unless the Court enjoins every other law

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enforcement agency in Maricopa County. CDs Br. at 25. But there is no rule that a Court

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must enjoin either every actor engaged in illegal conduct or none at all. The absence of

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other agencies from the lawsuit does not make an injunction against MCSO any less

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warranted. Defendants have cited no authority for such a proposition.27
If an injunction imposed, for the reasons Plaintiffs have stated, a Court-supervised

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implementation phase and monitoring would be appropriate. Pls.’ MSJ at 34.

8 IV. EXPUNGEMENT IS AN APPROPRIATE REMEDY FOR PLAINTIFFS SARA
CERVANTES ARREOLA AND ELIA ESTRADA FERNANDEZ
9
The County Defendants do not dispute the standing of Puente or the taxpayer
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Plaintiffs to seek an injunction. They contest only the eligibility of Plaintiffs Cervantes

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Arreola and Elia Estrada Fernandez for expungement of their convictions under A.R.S. §

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13-2009(A)(3). CDs’ Br. at 27-28.

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Defendants’ arguments focus largely on the question of post-conviction relief

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under Arizona law. However, Arizona law does not preclude relief for Ms. Cervantes

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Arreola or Ms. Estrada Fernandez, because Plaintiffs are not seeking expungement under

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Arizona law. Rather, Plaintiffs seek expungement pursuant to the inherent power of the

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Court to expunge criminal records where an arrest or conviction is found to have been

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invalid. See Doc. 133 at 8; Doc. 144 at 3; United States v. Sumner, 226 F.3d 1005, 1014

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(9th Cir. 2000); Maurer v. Los Angeles County Sheriff's Dept., 691 F.2d 434, 437 (9th

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Cir.1982) (“It is well settled that the federal courts have inherent equitable power to order

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‘the expungement of local arrest records as an appropriate remedy in the wake of police

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action in violation of constitutional rights.’”). This distinguishes Plaintiffs’ request from

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27
28

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The County Defendants suggest that Plaintiffs “conflate[d] and confuse[d]” the issues
by discussing them together in Plaintiffs’ briefing. CDs Br. at 2 n.1. But there is nothing
improper about addressing issues jointly when they are common to more than one party
in the interests of efficiency. Of course the County Defendants are each separate entities
and Plaintiffs trust that the Court is capable (as are the parties) of keeping that in mind. If
this Court should find, for example, that only one of the agencies has engaged in
preempted conduct, than it may enjoin Defendant Arpaio without enjoining Defendant
Montgomery and vice versa. Of course, Maricopa County’s liability is based on the
actions and policies of Defendant Arpaio. Pls.’ Opp. to Ds’ MSJ at 35-40; cf. CDs Br. at
21-22.
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the case where a court expunges a “valid arrest and conviction solely for equitable

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considerations.” Doc. 538 at 27 (citing United States v. Crowell, 374 F.3d 790, 793 (9th

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Cir. 2004) (emphasis added).

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Defendants contend that Plaintiffs’ guilty pleas make expungement inappropriate.

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CDs Br. at 28. But “a ‘guilty plea does not foreclose a subsequent challenge” where “the

6

charge to which [the defendant] pleaded guilty is one which the State may not

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constitutionally prosecute.” Lemke v. Ryan, 719 F.3d 1093, 1096 (9th Cir. 2013) (internal

8

citation omitted) (explaining that “a waiver of collateral attack must be express, and that

9

a plain waiver of appeal does not suffice”). Further, Defendants suggest that Plaintiffs

10

must have tried to promptly seek habeas or other relief in order to be eligible for relief

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under § 1983. CDs Br. at 28. While § 1983 relief is unavailable where a plaintiff “let the

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time for [a habeas] petition expire,” Nonnette v. Small, 316 F.3d 872, 877 & n.6 (9th Cir.

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2002), there is no bar when federal habeas was unavailable “because of the shortness of

14

[plaintiff’s] prison sentence.” Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006); see also

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Nonnette, 316 F.3d at 875-77 & n.6 (permitting plaintiff to challenge deprivation of

16

good-time credits in a § 1983 action). As Defendants concede, Plaintiffs here were

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simply not “in custody” for purposes of habeas jurisdiction long enough to exhaust state

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remedies—a prerequisite to filing a habeas petition. 28 U.S.C. § 2254(b); CDCSOF ¶ 223

19

(admitting that it would not be possible to litigate a motion for post-conviction relief

20

within 7 months);28 Pls. SOF ¶¶ 218-221 (setting forth Plaintiffs’ length of incarceration

21

and/or probation). There was no sense in Plaintiffs initiating a process that could not have

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26
27
28

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Defendants have moved to strike the Declaration of Harold Higgins on the ground that
it constitutes a late-disclosed expert opinion. CDs Br. at 28. Since Defendants don’t
contest the timeline for litigating a Rule 32 motion under Arizona law, the Higgins
Declaration is not necesasry. Nevertheless, should the Court wish to consider it, it may.
Mr. Higgins’ declaration is based on his own experience as a criminal attorney and not on
any scientific, technical or other specialized knowledge. See FRE 701; Range Rd. Music,
Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1153 (9th Cir. 2012) (“[T]he distinction
between lay and expert witness testimony is that lay testimony results from a process of
reasoning familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field.”) (citing FRE 701
Advisory Committee Note). And Plaintiffs properly disclosed Mr. Higgins as a fact
witness. See Plaintiffs’ Sixth Supplemental Disclosure Statement, attached hereto as
Exhibit 1.
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Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 27 of 29

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been completed in time.29

2
RESPECTFULLY SUBMITTED this 16th day of September, 2016.

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4

By

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Jessica Karp Bansal
Emilou MacLean
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057

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10
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Jessica Myers Vosburgh
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216

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14
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Sarah Anchors
Hector Diaz
Edward J. Hermes
Jose A. Carrillo
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391

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17
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Cindy Pánuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103

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Katheleen E. Brody
Daniel J. Pochoda

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/s/ Anne Lai
Anne Lai
Sameer Ashar
University of California, Irvine School of
Law – Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479

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Finally, the County Defendants suggest that they are not the proper parties to be subject
to an expungement order. CDs Br. at 27. While Plaintiffs agree that any expungement
order should also run to the State, which generally controls the distribution of criminal
history records, see A.R.S. § 41-1750, and be shared with the Maricopa County Superior
Court, the County Defendants also maintain records of Plaintiffs’ arrests and convictions,
see, e.g., Montgomery SOF ¶¶ 66-67, and they should be required to update their records
to reflect any expungement order issued by this Court.
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Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 28 of 29

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ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Ray A. Ybarra Maldonado
Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
On the brief:
Elizabeth Hercules-Paez
Kate Huddleston
Yoon (Jennifer) Kim
Rochelle Rotea

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Case 2:14-cv-01356-DGC Document 600 Filed 09/16/16 Page 29 of 29

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CERTIFICATE OF SERVICE

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I hereby certify that on the 16th day of September, 2016, I electronically

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transmitted the attached document to the Clerk's Office using the CM/ECF System for

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filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's

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electronic filing system or by mail as indicated on the Notice of Electronic Filing.

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Dated: September 16, 2016
Irvine, CA

/s/ _Anne Lai
Anne Lai

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Puente Arizona et al v. Arpaio et al, Docket No. 2:14-cv-01356 (D. Ariz. Jun 18, 2014), Court Docket

General Information

Court

United States District Court for the District of Arizona; United
States District Court for the District of Arizona

Federal Nature of Suit

Constitutionality of State Statutes[950]

Docket Number

2:14-cv-01356

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