Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 1 of 49

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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’
CONSOLIDATED OPPOSITION TO
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT
(ORAL ARGUMENT REQUESTED)

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 2 of 49

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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 575 Filed 08/19/16 Page 3 of 49

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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’ CONSOLIDATED
OPPOSITION TO DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT
(ORAL ARGUMENT REQUESTED)

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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 575 Filed 08/19/16 Page 5 of 49

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TABLE OF CONTENTS

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Page(s)

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INTRODUCTION .............................................................................................................. 1
ARGUMENT ...................................................................................................................... 2
I. IN LIGHT OF THE NINTH CIRCUIT’S OPINION ON THE PRELIMINARY
INJUNCTION APPEAL, THE COURT MAY ENTER SUMMARY JUDGMENT ON
PLAINTIFFS’ FACIAL SUPREMACY CLAUSE CLAIM .......................................... 2
II. DISPUTED ISSUES OF MATERIAL FACT PRECLUDE SUMMARY
JUDGMENT FOR DEFENDANTS ON PLAINTIFFS’ EQUAL PROTECTION
CLAIM ............................................................................................................................ 7
A. The Worker Identity Provisions Classify on the Basis of Undocumented Status 9
1. The Legislative History, Including Contemporaneous Statements by
Legislators, Show They Supported the Worker Identity Provisions Because of
Their Impact on Undocumented Immigrants ........................................................ 10
2. The Historical Background and Sequence of Events Leading Up to Passage of
the Worker Identity Provisions Demonstrate They Were Part of a Larger Strategy
to Make Life Difficult for Undocumented Immigrants ........................................ 13
3. The Legislature Departed from Substantive Norms When it Singled Out
Employment-Related Identity Theft for Aggravated Treatment........................... 15
4. The Disproportionate Impact of the Worker Identity Provisions on
Undocumented Workers is Strong Evidence of Legislative Intent to Adversely
Impact that Group ................................................................................................. 16
5. The Totality of the Evidence on the Arlington Heights Factors Establishes
That the Worker Identity Provisions Were Motivated by Discriminatory Intent . 18
B. The Worker Identity Provisions Cannot Survive Heightened Scrutiny ............ 21
C. The Worker Identity Provisions Cannot Survive Rigorous Rational Basis
Review ...................................................................................................................... 22
1. The Worker Identity Provisions Were Motivated By Animus ....................... 24
D. The Worker Identity Provisions Fail Even Under Traditional Rational Basis
Review ...................................................................................................................... 27
III. THE UNDISPUTED RECORD SHOWS THAT PLAINTIFFS ARE ENTITLED
TO RELIEF ON THEIR AS-APPLIED SUPREMACY CLAUSE CLAIM ............... 28
A. Defendants Fail to Explain Why This Court Should Depart From Its Prior
Finding that Criminal Prosecution of Undocumented Immigrants for Fraud in
Response to the Federal Employment Verification System Is Preempted ............... 28
B. The Record Shows That the County Defendants Indisputably Have a Policy and
Practice of Enforcing the Worker Identity Provisions and Forgery Statute Against
Undocumented Immigrants ....................................................................................... 32
C. Defendants’ Discussion of Victim Harms Is Legally Irrelevant ....................... 33
D. Plaintiffs’ Requested Injunction Would Not Affect Other Applications of the
Challenged Statutes Outside of the Federally Preempted Field................................ 35
IV. MARICOPA COUNTY IS LIABLE FOR THE UNCONSTITUTIONAL
ACTIONS OF SHERIFF ARPAIO UNDER MONELL ............................................... 35

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A. The County Has Provided This Court No Reason to Reconsider Its Prior Rulings
On County Liability In This Case ............................................................................. 35
B. Maricopa County Cannot Escape Its Liability Under Monell for the Policies and
Actions of the Sheriff ................................................................................................ 36
1. The Sheriff Has Final Policymaking Authority for Maricopa County Law
Enforcement Decisions. ........................................................................................ 37
2. The Sheriff Acts for the County in the Area of Law Enforcement ................ 38
C. No Exceptions Asserted by the County Are Relevant Here .............................. 39
D. The County Misunderstands the Role of the Supreme Court’s “Moving Force”
Test in Brown ............................................................................................................ 40
CONCLUSION ................................................................................................................. 40

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INTRODUCTION
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Defendants State of Arizona, Sheriff Arpaio, County Attorney Montgomery and

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Maricopa County have moved for summary judgment on Plaintiffs’ facial preemption

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and equal protection claims, as well as Plaintiffs’ as-applied preemption claim against the

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County Defendants. Docs. 510, 525, 534, and 511, respectively. Maricopa County further

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argues, for the fourth time in this case—that it should not be liable under Monell v. Dep't

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of Soc. Servs., 436 U.S. 658 (1978), for the law enforcement policies and practices of

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Sheriff Arpaio. Doc. 511. For the reasons set forth in the following consolidated

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response, and in Plaintiffs’ separate LRCiv 56.1(b) Controverting/Supplemental

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Statement of Facts filed herewith, Defendants’ motions (except with respect to Plaintiffs’

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facial Supremacy Clause claim) should be denied.
In light of the Ninth Circuit’s judgment on the matter, and reserving their appeal

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rights, Plaintiffs do not object to the entry of summary judgment on their facial

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Supremacy Clause claim on the grounds set forth in the Ninth Circuit’s decision.

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With regard to Plaintiffs’ equal protection claim, Defendants fail to meet the

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standard for summary judgment. Rather, disputed issues of material fact prevent the

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Court from reaching a decision at this stage. The consideration of whether impermissible

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discriminatory intent motivated the worker identity provisions demands a “sensitive”

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inquiry into the direct and circumstantial evidence in support of this claim, one uniquely

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fit for resolution at trial. Defendants’ efforts to assert that the laws were a response to

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identity theft, rather than to target undocumented immigrants, is not credible. Defendants

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further misunderstand the disparate impact analysis and cannot contest that

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undocumented immigrants have been the group most heavily affected by the enforcement

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of the worker identity provisions.

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With regard to Plaintiffs’ as-applied Supremacy Clause claim, Defendants

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continue to confuse the issues, misunderstand the law, and advance arguments with

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limited or no legal relevance. Predictably, they also seek to stretch the Ninth Circuit’s

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opinion far beyond its bounds. Finally, they fail to even address the United States’ amicus

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brief filed in the Ninth Circuit. As set forth in Plaintiffs’ Motion for Partial Summary

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Judgment (“Pls.’ MSJ”), Doc. 519, the law and undisputed facts compel a finding that the

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County Defendants’ policy and practice of enforcing Arizona’s worker identity

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provisions against undocumented immigrants violates the Supremacy Clause and should

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be enjoined.

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Finally, Maricopa County cannot escape liability for the unconstitutional actions

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of Sheriff Arpaio in this case. Every court that has considered the issue—including this

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one—has recognized that Arizona sheriffs are the final policymakers for the County in

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the area of criminal law enforcement, and the County bears liability under Monell.

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ARGUMENT
A court must deny summary judgment unless the moving party demonstrates it is

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entitled to relief beyond any “genuine dispute [of] . . . material fact.” Fed. R. Civ. P.

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56(a). A genuine dispute of fact arises where “the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986). In evaluating whether such a dispute exists, the court must view

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the evidence and all reasonable inferences in the light most favorable to the non-movant.

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Id at 255; Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir. 1987).

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Defendants have failed to meet their burden for summary judgment on both Plaintiffs’

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facial equal protection claim and their as-applied Supremacy Clause claim.

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I. IN LIGHT OF THE NINTH CIRCUIT’S OPINION ON THE
PRELIMINARY INJUNCTION APPEAL, THE COURT MAY ENTER
SUMMARY JUDGMENT ON PLAINTIFFS’ FACIAL SUPREMACY
CLAUSE CLAIM
Plaintiffs disagree with the Ninth Circuit’s decision declining to uphold this

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Court’s preliminary injunction based on United States v. Salerno, 481 U.S. 739

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(1987). See Puente Arizona v. Arpaio, 821 F.3d 1098, 1104, 1108 (9th Cir. 2016). They

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believe this Court got it right when it rejected the notion that an anomalous application of

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a statute outside of a federally regulated field could save an otherwise preempted statute.

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Doc. 133 at 26. Nevertheless, taking the Ninth Circuit’s ruling as binding, there is no
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dispute of material fact that Plaintiffs believe could lead to a different result on summary

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judgment. For that reason, and in order to save the Court and the Parties from spending

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further unnecessary resources on the claim, Plaintiffs do not object to the entry of

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summary judgment at this time.

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Plaintiffs do, however, reserve any and all of their appeal rights on their facial

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Supremacy Clause claim. See Slaven v. Am. Trading Transp. Co., 146 F.3d 1066, 1070

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(9th Cir. 1998) (affirming that a party to a consent judgment does not waive appeal rights

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where such rights are explicitly reserved). There may be a change in law or a change in

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circumstances warranting further court review at a later time in the case, and should that

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come to pass, Plaintiff wish to maintain their right to seek guidance from the Ninth

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Circuit on this Court’s grant of summary judgment as a final, appealable order. To

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preserve their substantive response to Defendants’ motion for summary judgment,

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Plaintiffs hereby incorporate all of the arguments set forth in their motion for preliminary

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injunction, reply, and post-argument briefing and exhibits. See Docs. 30, 95, 130, 136.

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They also incorporate the arguments set forth in their briefing on the preliminary

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injunction appeal, including their Consolidated Answering Brief and Petition for Panel

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Rehearing and Rehearing En Banc. See Puente Arizona v. Arpaio, No. 15-15211 (9th

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Cir.), Docs. 68, 126. Finally, Plaintiffs incorporate the entire factual record on summary

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judgment and, if there should be a trial, the full trial record.

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While Plaintiffs agree that the Court may grant summary judgment to Defendants

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on their facial preemption claim, they urge the Court to do so only on the grounds set

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forth in the Ninth Circuit’s decision. In their briefing, Defendants re-hash other

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arguments raised in their appeal that they believe warranted reversal of the preliminary

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injunction. See, e.g., Arizona’s Motion for Summary Judgment (“AZ Br.”), Doc. 510, at

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7-16. Having failed to gain traction on those arguments at the Ninth Circuit, Defendants

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seek an audience with this Court. But it is unnecessary for this Court to reach those

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arguments, and they are meritless in any event.

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For example, Arizona suggests that the worker identity provisions cannot be
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preempted by the federal laws on employment verification because “the state and federal

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statutes [do not] concern the same activity.” AZ Br. at 8; see also AZ Br. at 15. This is

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because, according to Arizona, “fraud is a different crime from identity theft or forgery.”

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Id. at 9 (capitalization omitted). But this proposition is nonsensical. Fraud, as

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contemplated by the federal employment verification scheme, can take multiple forms,

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including the use of the personal identifying information of another (identity theft) or the

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presentation of false documents (forgery). See Pls.’ MSJ at 4-5. In fact, the record in this

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case confirms this is so: nearly all employment-related identity theft and forgery cases

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prosecuted by the Maricopa County Attorney’s Office (“MCAO”) from 2005 to 2015

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involved undocumented immigrants who were presumably engaging in fraud by

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attempting to demonstrate authorization to work under federal law. See Plaintiffs’

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Separate Statement of Facts (“Pls.’ SOF”), Doc. 520, ¶ 70. The authority cited by

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Arizona, see AZ Br. at 9-10 (discussing Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct.

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1769 (2013)), is therefore inapposite.

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Next, Arizona attempts to argue that the text and legislative history of a single

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statute in the federal scheme, 18 U.S.C. § 1028, somehow proves that Congress intended

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to carve out a role for the states. AZ Br. at 11-13; see also Montgomery Motion for

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Summary Judgment (“Montgomery Br.”), Doc. 534, at 7. By considering this statute out

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of the context of 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G) and selectively ignoring other

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parts of the federal scheme, however, see Pls.’ MSJ at 4-5, 14-15, Defendants fail to take

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congressional intent seriously. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)

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(“the purpose of Congress is the ultimate touch-stone in every pre-emption case”)

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(citation omitted). Moreover, the statutory language quoted by Arizona shows only that

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18 U.S.C. § 1028 covers instances where a false identity is used to commit some other

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(presumably non-fraud) state or local (in addition to federal) offense. See AZ Br. at 12

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(citing 18 U.S.C. § 1028(a)(7)). That the statute can also be used in contexts outside of

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the employment of undocumented workers says nothing about whether Congress meant

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to preserve states’ ability to regulate a subset of cases that deal with immigration.
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Arizona’s attempt to use the “legislative history” of 18 U.S.C. § 1028 is similarly

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unavailing. See Plaintiffs’ Response to Arizona’s Statement of Facts (“Pls.’ Resp. to

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AZSOF”) ¶¶ 13-16.
In some places, Arizona misstates what the Ninth Circuit actually held, distorting

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the opinion beyond recognition. At page 15 of its motion, the State suggests that the

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Ninth Circuit rejected a notion that state legislative intent has any relevance in a

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preemption case. AZ Br. at 15 (claiming “[t]he Ninth Circuit put that novel theory to rest

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. . . ”). But rather than treating state legislative history as “irrelevant,” id. at 16, the Ninth

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Circuit specifically stated that legislative purpose should be analyzed—and not only in

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cases where Congress explicitly makes state intent relevant. Puente Arizona, 821 F.3d at

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1106 n.8; cf. AZ Br. at 16 n.2. The court also agreed with the District Court’s finding that

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the 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” and instructed that Plaintiffs may

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produce evidence of intent again on remand for their as-applied claim. Id. at 1106 & n.9.

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Indeed, Oneok, Inc. v. Learjet, Inc., cited by Arizona, AZ Br. at 10, actually reaffirms the

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importance of analyzing intent, in addition to effect, in preemption cases—to discern the

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true “target at which the state law aims.” 135 S. Ct. 1591, 1599-1600 (2015) (emphasis in

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original). For this reason, Defendants’ reliance on a handful of other states’ identity theft

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laws also unpersuasive. See Pls.’ Resp. to AZSOF ¶ 3.1
It is not a surprise that Defendants would try to construe the Ninth Circuit opinion

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as favorably for them as possible. Ultimately, however, rather than undermining

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Plaintiffs’ preemption claim, the court, giving a nod to recent immigration preemption

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precedents, recognized that statutes like the worker identity provisions may well conflict

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Defendants’ suggestion that Hernandez v. State, 639 S.E.2d 473 (Ga. 2007), upheld
Georgia’s employment- specific identity theft statute is misleading. The statute at issue in
that case was Ga. Code. Ann. § 16-9-121, not § 16-9-121.1(a). Id. at 560-61. Ga. Code.
Ann.§ 16-9-121.1(a) was not enacted until 2011. Pls.’ Resp. to AZSOF ¶ 3. The other
state court decisions cited by Defendants either are unpublished, did not involve an
employment-specific statute or the type of preemption theories advanced by Plaintiffs
here, and/or were based on outdated law. See AZ Br. at 11, 16; Montgomery Br. at 6 n.4,
23. They are also not controlling.
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with the comprehensive federal scheme for regulating fraud by undocumented

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immigrants to show authorization to work. Puente Arizona, 821 F.3d at 1106-07. The

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court’s conclusion that a facial challenge should fail was based solely on the grounds that

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the provisions had, in its view, at least some constitutional applications. Id. at 1108.

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However, the only “constitutional applications” discussed by the court were those where

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a person “uses another’s identity for non-immigration reasons.” Id. at 1104, 1106; see

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also AZ Br. at 6.
Two final points relating to Plaintiffs’ facial preemption challenge bear noting.

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First, Defendants appear to be under the mistaken impression that the only type of state

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laws that can be preempted by federal immigration regulations are those that apply solely

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to noncitizens. But that would not be true even for a state law that targeted only I-9

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fraud—which all Parties likely agree would be preempted—because both citizens and

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noncitizens participate in the employment verification process. Contrary to Arizona’s

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impression, see AZ Br. at 10-11, the South Carolina law struck down by the Fourth

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Circuit in United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013), also applied to

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citizens and noncitizens.2 Recently, the Fifth Circuit also invalidated a local ordinance

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making it a crime, among other things, to make a false statement of fact on an application

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for a rental license. Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d

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524, 527-29 (5th Cir. 2013). In reaching its result, the court examined evidence of the

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ordinance’s purpose and determined that lawmakers had been motivated by a desire to

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“prevent aliens not lawfully present in the United States from renting housing” and

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“make it more difficult for individuals who are in th[e] country illegally to reside in

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The statute made it “unlawful for any person to display or possess a false or counterfeit
ID for the purpose of proving lawful presence in the United States.” Id. at 532-33; see
also Act 69, 2011 S.C. Acts (S.B. 20) §6(B). This provision could have applied to a U.S.
citizen whom a state officer suspects of being unlawfully present and demands
identification from, and who, for the purpose of proving lawful presence and complying
with Section 6(B)(1) of the Act, offered a false state driver’s license because she or he
wanted to avoid detection on a warrant. But the court did not accept South Carolina’s
assertion that the provision “address[ed] ordinary fraud[.]”South Carolina, 720 F.3d at
532 (citation omitted).
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Farmer’s Branch.” Id. at 537-38. Certainly, the provision could have applied—as the

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dissent points out—to citizens and legal residents who commit fraud on a rental

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application. Id. at 565 (Jones, J. dissenting). But the court still found the ordinance

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preempted. These foregoing precedents reiterate that it is intent and practical effects of a

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statute, taken together, that matter for preemption analysis, see English v. General

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Electric Co., 496 U.S. 72, 84 (1990), and not some formulaic notion about who a law

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applies to.

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Second, and relatedly, in determining that Defendants had applied the worker
identity provisions to “some authorized aliens and U.S. citizens,” the Ninth Circuit did

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not discuss whether the MCAO’s prosecutions of those individuals were based on

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documents they had submitted in the employment verification process and therefore

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subject to the use limitation in 8 U.S.C. §§ 1324a and 8 C.F.R. § 274a.2(b)(4). If those

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prosecutions had been based on such documents, then it could not be said that those

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applications were “obvious[ly] constitutional.” Puente Arizona, 821 F.3d at 1104; see

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Pls.’ MSJ at 15-16.

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II. DISPUTED ISSUES OF MATERIAL FACT PRECLUDE SUMMARY
JUDGMENT FOR DEFENDANTS ON PLAINTIFFS’ EQUAL
PROTECTION CLAIM
Plaintiffs assert that the worker identity provisions—even if facially neutral—were

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enacted with impermissible discriminatory intent. See, e.g., Second Amended Complaint

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(“SAC”), Doc. 191, ¶¶ 93-98. The seminal case for evaluating such claims is Vill. of

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Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). Because the

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Arlington Heights analysis demands “a sensitive inquiry into such circumstantial and

23

direct evidence of intent as may be available,” id. at , 266, it is one that is uniquely fit for

24

resolution at trial, as opposed to summary judgment. As the Ninth Circuit recently

25

reaffirmed in Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015), “when relying on Arlington

26

Heights to demonstrate that an action was motivated by a discriminatory purpose, a

27

plaintiff need provide ‘very little such evidence to raise a genuine issue of fact; any

28

indication of discriminatory motive may suffice to raise a question of fact that can only
7

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 14 of 49

1

be resolved by a fact-finder.’” Id. at 977-78 (quoting Pac. Shores Props., LLC v. City of

2

Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013)).

3

Defendants have failed to meet their heavy burden of showing there is no

4

indication of discriminatory motive. They barely even mention Arlington Heights.

5

Instead, as set forth below, evidence in this case shows that the worker identity provisions

6

were part of a larger legislative platform of attrition through enforcement, aimed at

7

making life so difficult for a politically unpopular group—undocumented immigrants—

8

that they would “self deport.” The legislative record says little about any other rationale

9

for singling out employment as an area for identity theft legislation. But it is replete with

10

hostile statements towards undocumented immigrants as a group—painting them as

11

undesirable, culturally inferior and unreasonably dangerous, and, therefore, deserving of

12

punishment.

13

Arizona makes two main arguments in support of its case for summary judgment,

14

both unavailing. First, it claims—based on post-hoc, self-serving statements—that

15

legislators were concerned not about undocumented immigrants in particular, but about

16

identity theft in general. See, e.g., AZ Br. at 23. But if the Legislature were truly

17

concerned about identity theft in general, “regardless of [] the perpetrator,” Arizona’s

18

Statement of Facts in Support of Motion for Summary Judgment (“AZSOF) ¶ 11, it

19

would have behaved quite differently. See infra at Pt. II.A.3. There is at least a triable

20

issue of fact as to the Legislature’s motivations. Second, Defendants assert that Plaintiffs

21

have not shown that the worker identity provisions have a disparate impact. See, e.g., AZ

22

Br. at 26-28. But they adopt the wrong analytical measure. The question is not whether

23

undocumented immigrants have been prosecuted at a rate disproportionate to their rate of

24

offending, but whether singling out employment-related identity theft for regulation

25

would have a disproportionate impact on undocumented immigrants as the group most

26

likely to need to use false identity information to work. See infra II.A.4. As the reports of

27

both experts show, undocumented immigrants have indeed been most heavily affected by

28

enforcement of the worker identity provisions. See Pls.’ SOF ¶ 70.
8

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 15 of 49

1

A. The Worker Identity Provisions Classify on the Basis of Undocumented
Status

2

This Court already laid out the proper framework for the consideration of equal

3

protection claims in its order denying Defendants’ motions to dismiss. Doc. 133 at 30-37.

4

As the Court noted, “[t]he first step in determining whether a law violates the Equal

5

Protection Clause is to identify the classification that it draws.” Doc. 133 at 30 (citation

6

omitted).

7

Arizona argues that the worker identity provisions distinguish only “between

8

individuals who steal another person’s identity and those who do not.” AZ Br. at 18. In

9

doing so, Arizona assumes that a classification must be apparent on the face of statute.

10

But that is not what the doctrine teaches. Instead, in the equal protection context, a

11

classification not apparent from the face of a statute may be established by showing the

12

statute was motivated by a discriminatory purpose. Doc. 133 at 31 (citing Hunter v.

13

Underwood, 471 U.S. 222 (1985)).

14

Here, the worker identity provisions classify on the basis of alienage because they

15

were motivated by a desire to target undocumented immigrants for punishment. As

16

discussed above, in reviewing the record presented at the preliminary injunction stage of

17

this litigation, the Ninth Circuit agreed that ““[t]he titles of [HB 2779 and 2745] and the

18

legislative history” show an intent to keep undocumented immigrants out of Arizona.

19

Puente Arizona, 821 F.3d at 1102. Discovery has only further confirmed this impression.

20

To establish discriminatory intent, Plaintiffs “do[] not have to prove that the

21

discriminatory purpose was the sole purpose of the challenged action[.]” Arce, 793 F.3d

22

at 976. Indeed, “[r]arely can it be said that a legislature or administrative body operating

23

under a broad mandate made a decision motivated solely by a single concern, or even that

24

a particular purpose was the ‘dominant’ or ‘primary’ one.” Arlington Heights, 429 U.S. at

25

265. However, because invidious discrimination is “not just another competing

26

consideration,” when it has played any “motivating” role in the decision, “judicial

27

deference is no longer justified.” Id. at 265-66 (emphasis added). The non-exhaustive list

28
9

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 16 of 49

1

of factors that make up Arlington Height’s totality of the evidence test include: (1)

2

legislative history; (2) the historical background of the legislation; (3) the sequence of

3

events leading up to it; (4) departures from normal procedures or substantive

4

considerations; and (5) the impact of the legislation. Id. at 266-68.

6

1. The Legislative History, Including Contemporaneous Statements by
Legislators, Show They Supported the Worker Identity Provisions Because of
Their Impact on Undocumented Immigrants

7

As described in Plaintiffs’ Motion for Summary Judgment, the legislative history

5

8

of H.B. 2779 and H.B. 2745 (also known as the Legal Arizona Workers Act, or

9

“LAWA”)—including the bill titles, fact sheets, legislators’ floor statements, and the

10

Governor’s signing statement—leave little doubt they were intended to be immigration

11

measures. Pls.’ MSJ at 7-8; Pls.’ SOF ¶¶ 10, 13, 15, 18, 21-26. In deposition testimony,

12

former Representative Barnes, one of H.B. 2779’s prime sponsors, flatly stated that it was

13

“meant to address the illegal immigration problem.” Plaintiffs’ Supplemental Statement

14

of Facts (“Pls.’ SSOF”) ¶¶ 225, 227. Statements from other legislators, constituents, and

15

observers overwhelmingly bear out this understanding. Pls.’ SOF ¶¶15, 21-26; Pls.’

16

SSOF ¶¶ 226-29. For example, Pearce—the lead sponsor and driving force behind both

17

bills—described H.B. 2779 as a “huge step[] in stopping the invasion of illegal aliens”

18

and included it on a list of his “Immigration and Border Security Bills.” Pls.’ SSOF ¶¶

19

224, 226. After it passed, constituents wrote to congratulate him on “the effect it’s having

20

on the local illegal population.” Pls.’ SSOF ¶¶ 228. H.B. 2745 was part and parcel of

21

LAWA, serving to “clean up” H.B. 2779. Pls.’ SOF ¶ 13; Pls.’ SSOF ¶¶ 229. The

22

Arizona Republican Party echoed that H.B. 2745 “clarifie[d] and strengthen[ed]” LAWA.

23

Pls.’ SSOF ¶ 229.

24

Contrary to Defendants’ assertion, AZ Br. at 23-24, there is ample evidence that

25

the worker identity provisions specifically—like the rest of H.B. 2779 and H.B. 2745—

26

were designed to affect illegal immigration.3 Indeed, Pearce and Kavanagh (another of

27
28

3

Rather than being “minor,” less “consequential” parts of H.B. 2779 and H.B. 2745, as
Arizona asserts, AZ Br. at 23, the worker identity provisions were “directly related to . . .
illegal employment,” intended to work hand in hand with employer sanctions. Pls.’ SSOF
10

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 17 of 49

1

H.B. 2779’s prime sponsors) saw identity theft in employment as inextricably intertwined

2

with immigration, and they were not alone. Pls.’ SSOF ¶¶ 225, 230. Both Pearce and

3

Kavanagh wanted to end identity theft in employment because they perceived it would

4

make it harder for undocumented immigrants to work. Pls.’ SSOF ¶¶ 230-31, 239.4

5

Arizona’s claim that the worker identity provisions were about identity theft

6

generally is not supported by the testimony it cites. Rather, the depositions of Pearce,

7

Kavanagh and Barnes, taken in their entirety, show that each understood the worker

8

identity provisions to be part of the larger attrition strategy. See Pls.’ Resp. to AZSOF

9

SOF ¶ 6; see also Pls.’ SSOF ¶¶ 227, 230, 239-40. Indeed, when this Court preliminarily

10

enjoined enforcement of the worker identity provisions, Pearce made his understanding

11

of the provisions’ purpose and effect crystal clear in an op-ed, complaining that it threw

12

“American workers . . . under the bus.” Pls.’ SSOF ¶ 231. He continued, “Those who

13

steal identities in order to steal an American job should receive significant penalties and

14

be jailed and denied citizenship.” Id. (emphasis added). Pearce has also described “ID

15

theft” as “part of the “culture of corruption” brought by undocumented immigrants. Pls.’

16

SSOF ¶ 253. Barnes testified that the only reason he could think of for expanding the

17

definition of aggravated identity theft to include the use of a false identity to obtain

18

employment was because, “This way here, boom, they’re prosecuted right off the bat,

19

sent to jail right off the bat, and they can’t get out because of the fact that they’re illegal

20

aliens.” Pls.’ SSOF ¶ 233.

21

Nothing in the legislative history cited by Defendants or discussed above gives

22

any indication that legislators were concerned about identity theft in isolation from the

23

issue of immigration. To counter the ample evidence of discriminatory intent, Defendants

24

offer one statement from Pearce that they claim show he “focus[ed] on the harm that

25
26
27
28

230 (citing Pearce deposition testimony in Valle del Sol). General statements of
legislators in support of the measures are thus also probative of the provisions’ intent.
4
In addition to sponsoring H.B. 2779, Pearce also championed an initiative measure that
covered much the same ground. The initiative exerted external pressure on the
Legislature and the Governor to approve H.B. 2779 by raising the possibility that, if they
did not, Pearce would sidestep the legislative process entirely. Pls.’ SSOF ¶¶ 244-45.
11

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 18 of 49

1

identity theft causes to its victims, regardless of who the perpetrator is.” AZ Br. at 25.

2

But, when placed in context, the cited statement confirms that Pearce was concerned

3

about identity theft for employment because he saw it as an immigration issue. Pls. Resp.

4

to AZSOF ¶ 11. Indeed, the back and forth between Pearce and Senator Garcia

5

immediately preceding the cited statement explicitly focused on “illegal aliens” and

6

“undocumented workers.” Id. Further, Pearce’s comment that “[w]e have become the

7

carjacking, home invasion, and identity theft capital in the world” was a signature line

8

that he repeated again and again when railing against undocumented immigrants. Id. This

9

exact language appeared in an opinion piece he wrote titled, “Illegal Aliens in Our

10

Country Assaulting, Killing, and Intimidating American Citizens.” Pls.’ SSOF ¶ 232. Far

11

from being a general statement of concern about crime “regardless of the perpetrator,” to

12

Pearce (and those familiar with his advocacy on immigration), it was commentary on the

13

perceived damage done by undocumented immigrants. Finally, George Borjas, the

14

Harvard-based author of the alleged study that Pearce references, is known as “America’s

15

leading immigration economist” and is “widely perceived as playing a central role in the

16

debate over immigration policy in the United States and abroad.” Pls.’ Resp. to AZSOF ¶

17

11. Pearce’s citation to his work thus only further confirms his intent to address an

18

immigration issue, rather than identity theft in general.

19

Other key legislators shared Pearce, Kavanagh and Barnes’ understanding of the

20

worker identity provisions as an immigration measure. During debate on a proposed

21

amendment that would have reduced the penalty for a violation of the worker identity

22

provisions to a Class 6 felony, Senator Bob Burns—a sponsor who moved the bill at that

23

hearing—expressly urged other members not to engage in a consideration of “whether the

24

penalty fits the crime” because adopting the amendment “would be viewed as a

25

weakening of our opposition to illegal immigration[.]” Pls.’ SOF ¶ 21. Senator Tom

26

O’Halloran explained the he wanted to keep the felony class high enough to make sure

27

unauthorized workers “stay[ed] in jail” and “never [were] allowed to be citizens of the

28
12

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 19 of 49

1

United States again.” Id. ¶ 22.5 And Senator Barbara Leff explained that she was

2

opposing the amendment because she viewed stopping identity theft in employment as

3

integral to “solv[ing] the problem of illegal immigration.” Pls.’ Resp. to AZSOF ¶ 12

4

(describing Senator Leff’s comments).

6

2. The Historical Background and Sequence of Events Leading Up to Passage of
the Worker Identity Provisions Demonstrate They Were Part of a Larger
Strategy to Make Life Difficult for Undocumented Immigrants

7

The worker identity provisions were not isolated pieces of legislation. Rather, the

5

8

evidence demonstrates that they were part of a broader, multi-year strategy of “attrition

9

through enforcement” pushed by nativists who found their champion in Russell Pearce.

10

This historical context offers additional evidence that the intent behind the provisions was

11

to target undocumented immigrants.
As described in Plaintiffs’ Motion for Summary Judgment, the goal of attrition

12
13

through enforcement is to make life so difficult for undocumented immigrants that they

14

leave the country (or, in the case of state-level attrition measures, the state). Pls.’ SOF ¶

15

16; see also Pls.’ SSOF ¶ 239. Beginning in the early 2000s, Pearce drafted, introduced,

16

and pushed dozens of referenda and bills aimed at furthering the attrition strategy,

17

including measures to: enlist local police in immigration enforcement, deny citizenship to

18

children of undocumented immigrants, eliminate in-state tuition for undocumented

19

college students, prohibit the citizen children of undocumented immigrants from

20

receiving public benefits, make English the official language, and render all

21

undocumented immigrants in Arizona criminal trespassers under state law. Pls.’ SSOF ¶

22

234. By the time Pearce introduced H.B. 2779, he was growing increasingly successful in

23

his efforts, having secured passage of four ballot initiatives and a bill prohibiting the use

24

of consular identity cards as a valid form of identification. Pls.’ SSOF ¶ 235.

25
26
27
28

5

Pursuant to another Pearce measure, Proposition 100, later held to be unconstitutional,
see Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc), undocumented
immigrants charged with a serious felony offense were categorically ineligible for pretrial
bail.
13

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 20 of 49

1

As a result of Pearce’s efforts, he came to be known as “one of Arizona’s and the

2

nation’s most vigilant activists on illegal immigration.” Pls.’ SSOF ¶ 236. One could say

3

he was “the leader in the Legislature” on the topic. Pls.’ SSOF ¶ 237. Pearce was

4

outspoken in his views, describing unlawful immigration as “a mass invasion of historic

5

proportions” threatening “the very survival of this Great Nation;” suggesting that

6

undocumented immigrants were associated with contagious diseases and rampant violent

7

crime; and questioning “[w]hy anyone would tolerate ‘illegal’ invaders—who take jobs,

8

lower wages, hurt citizens, destroy neighborhoods, drive drunk, [and are] involved in

9

gang and criminal activity.” Pls.’ SOF ¶ 23; Pls.’ SSOF ¶¶ 241, 250, 251. Then-

10

Representative John Kavanagh—as described above, a key champion of H.B. 2779—

11

aligned himself closely with Pearce’s position on illegal immigration and made the issue

12

one of his own legislative priorities. Pls.’ SSOF ¶ 238.

13

Moreover, employer sanctions and measures targeting the use of false identity

14

information to work were key elements of the attrition strategy. Pls.’ SOF ¶ 16; Pls.’

15

SSOF ¶ 239. The year before H.B. 2779 was enacted, Pearce attempted to take the issue

16

on through H.B. 2577, which provided that Arizona’s forgery statute, A.R.S. § 13-2002,

17

be expanded to include the use of false documents by a person not authorized to work

18

“that purports to . . . fulfill[] the requirements for establishing identity, or eligibility to

19

work in the United States pursuant to the federal Immigration Reform and Control Act of

20

1986.” Pls.’ SOF ¶¶ 27-28. The bill was vetoed by the Governor, Pls.’ SOF ¶ 27, but that

21

did not stop Pearce from going back to the Legislature again the very next year and

22

proposing H.B. 2779’s worker identity provision, which Pearce described as “virtually

23

the same” as the forgery provision in H.B. 2577. Pls.’ SSOF ¶ 243; see also Pls.’ SSOF ¶

24

242. That the Legislature advanced a virtually identical provision for employees the year

25

prior to H.B. 2779, which, on its face, applied only to undocumented immigrants seeking

26

to show eligibility to work, provides powerful evidence that the worker identity

27

provisions sought to target undocumented immigrants and that the removal of specificity

28

in H.B. 2779 was merely cosmetic.
14

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 21 of 49

1

Finally, the relevant historical background of H.B. 2779 and H.B. 2745 does not

2

stop at Arizona’s borders. Prominent national proponents of the attrition strategy played

3

an important behind-the-scenes role in drafting and promoting the bills. Kris Kobach and

4

Michael Hethmon—attorneys credited as “the most successful propagators of [the]

5

powerful idea . . . that state and local governments can make life so miserable for illegal

6

immigrants that they would choose to deport themselves”—helped write the measures

7

and provided Pearce with advice and suggested amendments. Pls.’ SSOF ¶¶ 246-47.

8
9
10

The above context offers important insight into the motivation behind the worker
identity provisions: As an element of the attrition strategy, they were designed
specifically to make life difficult for undocumented immigrants.

11

3. The Legislature Departed from Substantive Norms When it Singled Out
Employment-Related Identity Theft for Aggravated Treatment

12

Further evidence that H.B. 2779’s worker identity provisions were motivated by

13

discriminatory intent can be adduced by inquiring whether the legislature departed from

14

substantive or procedural norms when it singled out employment-related identity theft for

15

aggravated treatment.

16

Prior to H.B. 2779, aggravated identity theft was reserved for cases involving

17

multiple acts or a significant amount of monetary harm. Pls.’ SOF ¶ 10 (citing to bill text,

18

which shows changes made to A.R.S. § 13-2009 by H.B. 2779). This makes sense: when

19

selecting a subset of criminal activity for elevated punishment, policymakers would be

20

expected to consider whether that subset of activity entails greater culpability or results in

21

greater harm to the public. But with H.B. 2779, legislators did not make any findings

22

about the relative culpability or harm to the public associated with employment-related

23

identity theft separate from its relationship to illegal immigration. Nor did they consider

24

“whether the penalty fits the crime”—indeed, they were discouraged from doing so by a

25

sponsor because doing so “would be viewed as a weakening of [Arizona’s] opposition to

26

illegal immigration.” Pls.’ SOF ¶ 21.

27
28
15

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 22 of 49

1

Defendants make much of the fact that data from the Federal Trade Commission

2

(FTC) shows that Arizona had a high per capita rate of identity theft complaints, with a

3

high percentage of those complaints being employment-related. See, e.g., AZSOF ¶ 5;

4

Montgomery Br. at 8. But when the Legislature wanted members to consider data from

5

agencies like the FTC, it knew how to make this information available. For example,

6

when the Legislature was considering S.B. 1058, the legislation that created the

7

aggravated identity theft offense in 2005, it actually cited to FTC data in the Senate Fact

8

Sheet. Pls.’ SSOF ¶ 248. In contrast, Defendants can point to no place in the legislative

9

history of H.B. 2779 and H.B. 2745 where FTC data (or any other government data for

10

that matter) was identified by source. The only “data” that appears to have made its way

11

into the legislative record are Pearce’s statements about the threat posed by illegal

12

immigration. See, e.g., Pls.’ Resp. to AZSOF ¶ 11; Pls.’ SOF ¶ 23. Any statistics he

13

presented, including those about identity theft, were divorced from the reference to a

14

reputable government agency.

15
16

These “[d]epartures from the norm[]” offer further evidence of improper purpose.
Arlington Heights, 429 U.S. at 267.

18

4. The Disproportionate Impact of the Worker Identity Provisions on
Undocumented Workers is Strong Evidence of Legislative Intent to Adversely
Impact that Group

19

Plaintiffs have submitted extensive evidence, including evidence from

17

20

Defendants’ expert, Dr. Cohen, that the impact of the worker identity provisions has been

21

felt most heavily by undocumented immigrants. Pls.’ SOF ¶¶ 70-75. This is indicative of

22

a legislative intent to target undocumented immigrants because, as the Supreme Court has

23

explained, “[t]he impact of an official action is often probative of why the action was

24

taken in the first place since people usually intend the natural consequences of their

25

actions.” Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 487 (1997).

26

Arizona’s suggestion that Plaintiffs have not shown disparate impact rests on

27

several key misunderstandings about equal protection law. As a preliminary matter,

28

Arizona is incorrect to suggest that disproportionate impact is an “essential component”
16

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 23 of 49

1

of any equal protection claim. AZ Br. at 27-28. The Arlington Heights test is not so rigid.

2

“[I]mpact provides an important starting point . . . but purposeful discrimination is the

3

condition that offends the Constitution.” Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256,

4

274, (1979) (citations and quotation omitted); see also Washington v. Davis, 426 U.S.

5

229, 242 (1976) (“[I]nvidious discriminatory purpose may often be inferred from the

6

totality of the relevant facts, including the fact, if it is true, that the law bears more

7

heavily on one race than another”).
Moreover, Arizona is mistaken in its assertion that the only type of

8
9

disproportionate impact relevant to discriminatory intent is a disparity in prosecutions

10

compared to the rate of offending. AZ Br. at 26-27; see also Arpaio’s Motion for

11

Summary Judgment (“Arpaio Br.”), Doc. 525, at 16-17; Montgomery Br. at 18. Another

12

variation on this argument is Arizona’s suggestion that the relevant classification can

13

only be defined by a “control group” comparison between undocumented immigrants

14

who violate the worker identity provisions and citizens and legal residents who violate

15

them. AZ Br. at 19-20. But this Court has already rejected the notion that Plaintiffs must

16

identify a “similarly situated class” against whom Plaintiffs’ treatment can be compared.

17

Doc. 133 at 32-33 n.12. That test, the Court affirmed, is only a threshold requirement in

18

“a minority of as-applied equal protection cases,” id., and the only as-applied claim in

19

this case is a preemption claim, not equal protection. Thus, the fact that undocumented

20

immigrants are the group of employees most uniformly disadvantaged by the worker

21

identity provisions—not in spite of but because of their greater likelihood of offending

22

the provisions—is sufficient on its own to show disparate impact for Plaintiffs’ facial

23

claim. Id. at 32.6

24
25
26
27
28

6

Take—by comparison—the case where a civil rights plaintiff challenges a literacy
requirement for voting on the basis that it disproportionately burdens African-Americans.
Under Arizona’s formulation, such a plaintiff could never prevail, since a literacy
requirement technically treats African-Americans who can’t read and other groups who
can’t read the same. But that cannot be right. The point in both cases is that policymakers
imposed a burden that fell most heavily on a particular group, supporting an inference
that they intended to single out that group for adverse treatment.
17

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 24 of 49

1

Unable to walk back from the objective evidence showing the large number and

2

proportion of undocumented immigrants who have been prosecuted, Defendants try to

3

criticize Dr. Earl for being unable to conclude that undocumented immigrants have been

4

prosecuted at rates disproportionate to their rate of offense. See AZ Br. at 27; Arpaio Br.

5

at 9; Montgomery Br. at 18. Dr. Earl did not make that conclusion because such an

6

analysis, as discussed supra, misses the point. Dr. Earl also did not make that conclusion

7

because it would be inappropriate. As even Dr. Cohen acknowledged, the actual rate of

8

offense by undocumented immigrants or any other group is unknown. Pls.’ SOF ¶ 5.

9

Though Defendants try to make much of his analysis of Maricopa County prosecutions in

10

comparison to federal prosecutions under 28 U.S.C. § 1028, he specifically disavowed an

11

attempt to use such a comparison to argue that Defendants’ enforcement has been status-

12

neutral. See Pls.’ Resp. to Arpaio SOF ¶ 39; Pls.’ Resp. to Montgomery SOF ¶ 53.7
In most equal protection challenges, courts can only infer that the disparate impact

13
14

of an official action is one that policymakers intended. Here, the Court has direct

15

evidence that Arizona legislators were pleased with the Defendants’ enforcement patterns

16

against undocumented immigrants. Year after year following LAWA’s passage, the

17

Legislature apportioned monies for the worker identity provisions’ enforcement under a

18

budget line item titled “County attorney immigration enforcement.” Pls.’ SOF ¶ 49. The

19

formula under which these monies were distributed ensured that Maricopa County

20

received the lion’s share of the allocation, see id., because, according to Pearce, they

21

were one of the few counties enforcing the law. Pls.’ SOF ¶ 54.

22

5. The Totality of the Evidence on the Arlington Heights Factors Establishes That
the Worker Identity Provisions Were Motivated by Discriminatory Intent

23

As explained above, the evidentiary showing necessary to defeat summary

24

judgment on the question whether an action was motivated by discriminatory intent is not

25
26
27
28

7

Arizona also believes that a showing of disproportionate enforcement in relation to a
group’s rate of offense is required to show injury for Article III standing. AZ Br. at 2728. But the injury for the standing analysis is the prosecution itself (or threat of
prosecution). Plaintiffs have amply established that they have standing to challenge the
worker identity provisions. See Pls.’ MSJ at 25-30.
18

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 25 of 49

1

demanding. Taken in the light most favorable to Plaintiffs, the extensive evidence that

2

legislators supported the worker identity provisions because they would adversely impact

3

undocumented immigrants is more than sufficient to deny Defendants’ motions.
In arguing otherwise, Arizona inaccurately represents both the governing legal

4
5

standard and the reach of Plaintiffs’ evidence. AZ Br. at 22-24. With respect to the legal

6

standard, Arizona proposes that there is some rigid formula for how “pervasive”

7

discriminatory intent must be to establish a discriminatory motive. But the three cases it

8

cites for this proposition, id. at 22-24, establish no such formula; indeed, they say nothing

9

about the level or type of proof required to establish discriminatory intent in the equal

10

protection context. Golden State Transit Corp. v. City of Los Angeles had no occasion to

11

address the question of proof because the Court, after assuming the challenged action had

12

been intended to discriminate between the plaintiff and other taxicab companies, upheld

13

the City’s decision because it would nevertheless survive the relevant level of review,

14

i.e., rational basis. 686 F.2d 758, 761 (9th Cir. 1982). United States v. O’Brien is a First

15

Amendment case addressing whether it is appropriate for a court to look behind an

16

otherwise constitutional statute on the basis of an “alleged illicit legislative motive” at all.

17

391 U.S. 367, 382-84 (1968). And RUI One Corp v. City of Berkeley is a Contract Clause

18

case that reaches a similar conclusion as to O’Brien. 371 F.3d 1137, 1146 & n.7 (9th Cir.

19

2004). Neither RUI nor O’Brien purport to or can fairly be understood to guide this

20

Court’s review of an equal protection claim, and Golden State Transit Corp, as discussed

21

above, is similarly unhelpful.8
With respect to the record, Arizona argues that Plaintiffs’ evidence is necessarily

22
23
24
25
26
27
28

8

Arizona’s suggestion that Plaintiffs’ equal protection claim fails because former
Governor Napolitano did not exhibit improper motives, AZ Br. at 24, is unfounded. First,
Governor Napolitano’s signing statement shows that she, like others, viewed H.B. 2779
as an immigration measure. See Pls.’ SOF ¶ 26. Moreover, Wis. Educ. Assoc. Council v.
Walker, the out-of-circuit case on which Arizona relies for this point, mentioned
gubernatorial intent in passing, in a portion of its opinion dealing with a First
Amendment viewpoint discrimination claim, and gave no indication that—even in that
context—the governor’s motive would be in any way dispositive. 705 F.3d 640, 652 (7th
Cir. 2013).
19

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1

insufficient to establish discriminatory intent because: (1) Pearce, Kavanagh, and Barnes

2

disclaimed any discriminatory intent in their depositions; (2) legislative history relied on

3

by Plaintiffs pertains only to the E-Verify and employer sanctions provisions of the bill;

4

and (3) Plaintiffs’ evidence amounts to only statements from “one or two legislators,” and

5

a “few documents.” AZ Br. 22-24. Plaintiffs dispute all of these assertions. See, e.g., Pls.’

6

Resp. to AZSOF ¶¶ 6, 11. Moreover, regarding the first point, post-hoc statements of

7

intent carry less weight than legislators’ contemporaneous statements which, as described

8

above, make crystal clear that legislators were motivated by a desire to affect illegal

9

immigration. See Cal. Tow Truck Ass'n v. City & Cty. of S. F., 693 F.3d 847, 865 n.15

10

(9th Cir. 2012) (“Evidence of legislative intent generally arises from the

11

contemporaneous record, although a court may consider testimony from members of the

12

legislative body in question regarding that record. . . . A court should be wary, however,

13

about crediting post hoc . . . rationalizations that conflict with the contemporaneous

14

legislative record.”).

15

Far from being limited to statements from “one or two legislators” and a “few

16

documents,” Plaintiffs’ evidence of discriminatory intent is comparable to (and, indeed,

17

more voluminous than) evidence that has precluded summary judgment in similar cases.

18

See, e.g., Arce, 793 F.3d at 978-79 (holding that district court erred in granting summary

19

judgment for defendants on an equal protection claim where a statement from the sponsor

20

of the challenged bill and testimony from a witness who spoke at two hearings “raise[d]

21

at least a plausible inference that racial animus underlay passage of the legislation); Pac.

22

Shores Props., LLC, 730 F.3d at 1162-64 (holding that district court erred in granting

23

summary judgment for defendants on equal protection claim where contemporaneous

24

statements of constituents and one city council member, in combination with procedural

25

departures and the impact and historical context of the challenged ordinance, created

26

triable issue of fact as to discriminatory intent); Cal. Parents for Equalization of

27

Educational Materials v. Noonan, 600 F. Supp. 2d 1088, 1112 (E.D. Cal. 2009) (denying

28

summary judgment on plaintiff’s equal protection claim because procedural departures,
20

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 27 of 49

1

several contemporaneous statements, and consultation of a biased expert created triable

2

issue of fact regarding discriminatory intent).

3

Arce v. Douglas is particularly instructive. In that case, the Ninth Circuit focused

4

on—and gave significant weight to—the statements and actions of individuals who were

5

the key “force behind the [challenged] enactment,” including the bill’s lead sponsor. 793

6

F.3d at 975-81. As Arce indicates, in assessing legislative intent, greater weight should be

7

given to the words and actions of sponsors and other influential actors. Id.; see also, e.g.,

8

Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (explaining that “a

9

statement of one of the legislation’s sponsors . . . deserves to be accorded substantial

10

weight in interpreting the statute”). Plaintiffs here describe extensive evidence from

11

which a fact finder could discern discriminatory intent on the part of Pearce, Kavanagh,

12

and Barnes, the three “[k]ey Arizona legislators” behind the challenged provisions. See

13

AZSOF ¶ 6; see also Pls.’ SSOF ¶¶ 224-25. This evidence, in combination with the

14

contemporaneous statements of additional members of the legislature, see supra, and the

15

other circumstantial evidence under the Arlington Heights factors, clearly “raise[s] at

16

least a plausible inference” of discriminatory intent. Arce, 793 F.3d at 979.

17

B. The Worker Identity Provisions Cannot Survive Heightened Scrutiny

18

Once it is clear that a challenged law discriminates against a “cognizable class,”

19

the “court must analyze under the appropriate level of scrutiny whether the distinction

20

made between the groups is justified.” Doc. 133 at 31.

21

State classifications based on alienage are ordinarily subject to strict judicial

22

scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971) (“[C]lassifications based on

23

alienage, like those based on nationality or race, are inherently suspect and subject to

24

close judicial scrutiny.”). Undocumented workers are a quintessential example of a

25

“discrete an insular minorit[y]” deserving of heightened scrutiny under the traditional

26

equal protection analysis. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4

27

(1938). As part of a “permanent caste of undocumented resident aliens, encouraged by

28

some to remain here as a source of cheap labor, but nevertheless denied the benefits that
21

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 28 of 49

1

our society makes available to citizens and lawful residents,” Plyler v. Doe, 457 U.S. 202,

2

218-19 (1982), they cannot rely on operation of the political process to protect their

3

rights. Accordingly, the courts have a special responsibility to conduct a “more searching

4

judicial inquiry” of laws—like the worker identity provisions—that single them out for

5

adverse treatment. Carolene Prods. Co., 304 U.S. at 152-53 n.4. The worker identity

6

provisions cannot pass such heightened scrutiny because they were not enacted to serve

7

any compelling or substantial state interest.9

8

C. The Worker Identity Provisions Cannot Survive Rigorous Rational Basis
Review

9

Laws that are motivated by “an improper animus towards a politically unpopular

10

group” are subject to a “more rigorous form of rational basis review.” Doc. 133 at 35

11

(internal quotation marks omitted). As this Court explained:

12

When a law disadvantages an unpopular group, there arises an
“inference that the disadvantage imposed is born of animosity
toward the class of persons affected.” Romer, 517 U.S. at 634. This
inference cannot be overcome by any conceivable rational basis for
the law. See Cleburne, 473 U.S. at 447-50. Rather, the state must
demonstrate that the actual reason for the law was not a desire to
discriminate. See Romer, 517 U.S. at 634. If a court finds that the
only actual reason for the law is a desire to discriminate, the court
will invalidate the law, relying on the maxim that “a bare
congressional desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.” Moreno, 413 U.S. at
534; see also Windsor, 133 S. Ct. at 2693 (finding that laws may not
exist to “impose a disadvantage, a separate status, and so a stigma
upon” those of a particular class).

13
14
15
16
17
18
19
20

Id.
Arizona suggests that equal protection analysis in this case is unique because the

21
22

regulated conduct involves criminal activity. AZ Br. at 20. This Court similarly expressed

23

some uncertainty over whether rigorous rational basis review applies in a case

24

challenging the imposition of penalties for criminal conduct or adversely impacting those

25

who have committed criminal offenses. Doc. 133 at 36. The Court’s hesitancy may

26
27
28

9

Plaintiffs recognize that this Court has already found that the worker identity provisions are not
subject to heightened scrutiny under the traditional equal protection analysis. Doc. 133 at 33-34.
They address this question here only briefly, incorporating by reference the argument made in
their Opposition to Defendants’ Motions to Dismiss, Doc. 83 at 22-23, to preserve the issue for
appeal.
22

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1

reflect the notion—uncontested by Plaintiffs—that a desire to punish people for breaking

2

the law does not itself constitute animus. But, importantly, that does not mean criminal

3

laws can never be a vehicle for animus. Where, as here, evidence suggests legislators

4

supported a criminal law in order to harm members of a group based on a perception that

5

members of that group were inherently dangerous, socially undesirable, and/or culturally

6

inferior, the scenario is a far cry from the unremarkable case where legislators enact laws

7

to protect the public safety.

8

Moreover, nothing in Supreme Court or Ninth Circuit precedent creates any type

9

of carve-out in the animus doctrine for laws that impose penalties for criminal conduct.

10

Any exception permitting group-based animus to drive legislation, so long as it targets

11

members of the group engaged in unlawful conduct, would open the door for politically

12

unpopular groups to be singled out for greater punishment based on legislators’ general

13

antipathy toward them. Cf. Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J.,

14

concurring) (“A law branding one class of persons as criminal based solely on the State’s

15

moral disapproval of that class and the conduct associated with that class runs contrary to

16

the values of the Constitution and the Equal Protection Clause, under any standard of

17

review.”). Rather, the rule governing rigorous rational basis review is framed in general

18

terms: “a bare congressional desire to harm a politically unpopular group cannot

19

constitute a legitimate governmental interest.” United States Dep’t of Agric. v. Moreno,

20

413 U.S. 528, 534 (1973) (emphasis added). Indeed, in Moreno itself the government

21

asserted that the challenged provision was necessary to prevent fraud, but the Supreme

22

Court nevertheless struck it down, finding that the true motivation was to prevent

23

“hippies” and “hippie communes” from taking advantage of food stamp benefits. Id.

24

Here, while the federal government may have a valid interest in regulating fraud in

25

response to the employment verification system, Arizona does not. See, e.g., Pls.’ MSJ at

26

12-16. The evidence shows that the State’s entry into this field can best be understood as

27

an expression of local antipathy against a group that it wanted to expel from within its

28

borders.
23

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 30 of 49

1. The Worker Identity Provisions Were Motivated By Animus

1
2

As set forth above, the Arizona Legislature passed the worker identity provisions

3

as part of its attrition platform. In so doing, legislators acted on their own animus toward

4

undocumented immigrants as well as pressure from a politically influential segment of

5

the public motivated by fear, resentment, and hostility toward immigrants.

6

Legislators’ animus toward undocumented immigrants is most plainly evident in

7

the hostile, hyperbolic, and misleading statements made by Russell Pearce both on and

8

off the legislature floor, including statements conflating undocumented immigrants with

9

individuals of Mexican descent and with criminals. At various times, Pearce

10

characterized undocumented immigrants as “enemies” who threaten to “destroy all that is

11

sacred” in America; “illegal invaders . . . who . . . hurt citizens [and] destroy

12

neighborhoods;” and carriers of dangerous diseases. Pls.’ SSOF ¶¶ 249-51. He

13

complained about “Mexico, which is in its 12th edition of printing a pamphlet on how to

14

break into America and get free stuff” and insinuated that Arizona’s major crime

15

problems were “all related” to illegal immigration. Pls.’ SOF ¶ 23; Pls.’ SSOF ¶ 252.

16

Further, in response to concerns about how H.B. 2577 would impact individuals who are

17

working to support their families he “pointed out [incorrectly] this is not making a felon

18

out of anyone[,] [because] [t]hese individuals already are felons by illegally crossing the

19

border.”10 Pls.’ SSOF ¶ 254.
Former Representative Barnes was similarly up front about his hostility toward

20
21

undocumented immigrants. Upon being served with a subpoena to testify in this case, he

22

told the process server that “[t]he only reason the ACLU is suing Sheriff Arpaio is

23

because they want to bring in all these Mexicans to replace the babies that the Democrats

24

aborted.” Pls.’ SSOF ¶ 255. When confronted with this statement in his deposition, he

25
26
27
28

10

Unlawful entry is a misdemeanor, not a felony, 8 U.S.C. § 1325, and not all
undocumented immigrants enter the country unlawfully at all. See Ortega-Melendres v.
Arpaio, 836 F. Supp. 2d 959, 971 (D. Ariz. 2011), aff'd sub nom. Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012). In any event, even if entering the country unlawfully were a
felony under federal law, Pearce’s answer remains completely non-responsive to the
concern expressed.
24

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1

reflected that “it wouldn’t be uncommon for me to say something like that, because it’s

2

the truth.” Id.

3

While other legislators were not as blatant in their expressions of animus, some

4

spoke in coded language to activate prejudice and irrational fears about immigrants. See

5

Arce, 793 F.3d at 978 (recognizing courts’ duty to look for “camouflaged” intent “given

6

that ‘officials acting in their official capacities seldom, if ever, announce on the record

7

that they are pursuing a particular course of action because of their desire to

8

discriminate”) (internal quotation marks omitted); Doe v. Vill. of Mamaroneck, 462

9

F.Supp.2d 520, 549 (S.D.N.Y. 2006) (analyzing village officials’ statements about

10

Hispanic laborers); United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1318

11

(S.D.N.Y. 1985) (analyzing statement issued by mayor). For example, former Senator

12

Huppenthal stated that he was supporting H.B. 2779 despite his skepticism that it would

13

improve the employment rate for “Caucasians” and wanted “people [to] understand that .

14

. . the reasons for [passing HB 2779] are cultural, they are not economic.” Pls.’ SSOF ¶

15

256. Legislators’ willingness to subject undocumented individuals to harsh penalties in

16

order to trigger deportation or send a political message (regardless of whether the

17

penalties “fit[] the crime”) is further evidence of animosity. Pls.’ SOF ¶¶ 21-22; Pls.’

18

Resp. to AZSOF ¶ 12. The failure of other legislators supporting the measures to

19

challenge these animus-based statements is further indication of an overall climate of

20

hostility toward undocumented immigrants.

21

Legislators were also under strong pressure from members of the public to support

22

legislation that would adversely impact undocumented immigrants, including by

23

punishing the use of false identity information to work. At trial, Plaintiffs would present

24

evidence that legislators received a steady stream of animus-based complaints and

25

demands for action regarding immigration. See Pls.’ SSOF ¶¶ 257-63, 265-56, 268. In

26

these complaints, constituents, like Pearce and Barnes, see supra, often conflated

27

immigrants with individuals of Hispanic or Mexican descent. For example, residents of

28

Pearce’s home district advocated for passage of HB 2577 while expressing grievances
25

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 32 of 49

1

about “a mass invasion of historic proportions” by “an Hispanic ‘migrant army,’”

2

members of whom were “corrupt[ing] our unifying national language while actively

3

disrespecting our culture, society, and country.” Pls.’ SSOF ¶ 257. A sampling of other

4

communications includes such statements as:

5
6
7
8
9
10
11
12
13
14
15

• “It’s sickening how [illegals] are allowed to steal social security numbers
and arrogantly march in the street for rights they think they somehow
should have . . . They should be running like scared rats in fear of
deportation,” Pls.’ SSOF ¶ 259;
• “[I]llegal immigration is . . . produc[ing] not only a lack of security but a
destruction of our country. There are very different cultural values between
our societies and the driving mentality in Mexican society is based on ‘Is it
convenient for me or not?’ The issue of right or wrong, morality, sacrifice
is only met with wry smiles and not valued as virtues,” Pls.’ SSOF ¶ 263;
• “[W]e are allowing about 20 million into this country who are loyal to their
home countries notably Mexico...not the U. S. A. As you know there are
many Hispanic militant groups...and, of course, dangerous gangs as well. In
addition, most are unskilled and uneducated which would not contribute to
our maintaining the status we are used to,” Pls.’ SSOF ¶ 261; and
• “[I]mmigrants come here and we cause delays in AMERICAN’s way of
lives by having to wait for ‘do you want to hear this message in Spanish’
about 18 times a day . . . or our landscapers high immigrants who can’t
speak English, so when they are at our house, they don’t even understand,
‘Please trim this tree back over the fence,” Pls.’ SSOF ¶ 266.

16

These communications reflect a broad-based level of resentment towards undocumented

17

immigrants that likely influenced legislators to support the worker identity provisions.

18

See Pls.’ SSOF ¶¶ 270-71. This is relevant to Plaintiffs’ equal protection claim because,

19

while “[p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or

20

indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). In assessing

21

allegations of impermissible discrimination, courts take into account evidence that a

22

decisionmaking body considered and acted in response to discriminatory statements from

23

individuals. See, e.g., Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 144 (3d Cir. 1977)

24

(inferring discriminatory intent from city’s change in position following “protests by

25

demonstrators manifesting racial bias”); Rivera v. Inc. Vill. of Farmingdale, 784 F. Supp.

26

2d 133, 147-48 (E.D.N.Y. 2011) (considering public comments on the Internet and at

27

board meetings as evidence that village acted with discriminatory intent); Anderson Gr.,

28
26

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 33 of 49

1

LLC v. City of Saratoga Springs, 557 F. Supp. 2d 332, 341 (N.D.N.Y. 2008) (finding

2

discriminatory intent where defendants “bow[ed] to public opinion,” which they

3

understood to be based on “discriminatory animus”); Cmty. Hous. Trust v. Dep’t of

4

Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 227 (D.D.C. 2003) (recognizing

5

that a decision may “become[] tainted with discriminatory intent” even if policymakers

6

“personally have no strong views on the matter” (citation omitted).

7

Taken as a whole, the evidence of animus among both legislators and constituents

8

provides strong evidence from which a fact finder could conclude that the “actual reason

9

for the [worker identity provisions] [wa]s a desire to discriminate.” Doc. 133 at 35. In

10

that case, no deference to the Legislature would be due. Summary judgment for

11

Defendants is therefore inappropriate.

12

D. The Worker Identity Provisions Fail Even Under Traditional Rational
Basis Review

13

Even if subject only to traditional rational basis review, the worker identity

14

provisions fail to pass constitutional muster because there is no “reasonably conceivable

15

state of facts that could provide a rational basis for the classification”—in this case,

16

singling out undocumented workers. Doc. 133 at 34-35 (citing Heller v. Doe, 509 U.S.

17

312, 320 (1993)). Arizona argues that the worker identity provisions can be justified by

18

“the many ways in which identity theft harms its victims.” AZ Br. at 21-22. But the state

19

fails to explain how it could be rational to single out undocumented immigrants (or even

20

identity theft in the employment context generally) for particularly harsh treatment. Id.

21

Moreover, the justification regarding harm to victims fails to take into account the fact

22

that H.B. 2779 § 1 imposed harsher punishment for identity theft “to obtain employment”

23

even if committed with the consent of the other person whose information is used. This

24

distinguishes A.R.S. § 13-2009(A)(3) from all the other types of identity theft punished

25

by A.R.S. § 13-2009(A) and A.R.S. § 13-2008(A). Compare A.R.S. § 13-2009(A)(3)

26

with A.R.S. §§ 13-2008(A), 2009(A)(1)-(2). That alone should render the measure

27

irrational.

28
27

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 34 of 49

1

Given that there is no reasonably conceivable nondiscriminatory reason for

2

Arizona to have singled out identity theft in employment, the State certainly cannot show

3

that it actually would have passed the worker identity provisions without its improper

4

motivation. Cf. AZ Br. at 24. As described above, the totality of the evidence makes clear

5

that the legislature passed the worker identity provisions in order to adversely impact

6

undocumented workers. At a minimum, there is a factual dispute as to the Legislature’s

7

motivation that makes summary judgment for Defendants improper.
III. THE UNDISPUTED RECORD SHOWS THAT PLAINTIFFS ARE
ENTITLED TO RELIEF ON THEIR AS-APPLIED SUPREMACY
CLAUSE CLAIM

8
9
10

Plaintiffs present more than a dispute of Defendants’ facts, but instead law and

11

evidence which compel judgment in their favor on their as-applied Supremacy Clause

12

claim. Defendants try to distract the Court with extraneous issues, but the limited material

13

issues are beyond dispute: Defendants’ policy and practice enforcing the worker identity

14

provisions against undocumented immigrants is preempted.
A. Defendants Fail to Explain Why This Court Should Depart From Its Prior
Finding that Criminal Prosecution of Undocumented Immigrants for
Fraud in Response to the Federal Employment Verification System Is
Preempted

15
16
17

This Court previously determined that Congress has exclusively occupied the field

18

of “unauthorized-alien fraud in seeking employment.” Doc. 133 at 22-23. It also found

19

that the worker identity provisions posed a “conflict in technique . . . disruptive to the

20

[federal] system,” id. at 24-25 (citations omitted), and that prosecutions under the worker

21

identity provisions “divest[] federal authorities of the exclusive power to prosecute”

22

fraud, thus interfering with the “careful balance” Congress struck in IRCA, id. at 25

23

(citations omitted).11 The Ninth Circuit decision reversed this Court’s grant of a

24

preliminary injunction based solely on the standard for a facial claim. Puente Arizona,

25

821 F.3d at 1108 (emphasizing that the “only question” addressed by the Ninth Circuit

26

was whether “every application is unconstitutional”). It did not disturb any of the Court’s

27
28

11

The Court made these findings even while assuming that the presumption against
preemption applies. See Montgomery Br. at 4-5, Arpaio Br. at 7.
28

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 35 of 49

1

findings about the federal scheme and expressly left open the possibility of an injunction

2

on Plaintiffs’ as-applied claim. Id. at 1105-08.
Defendants have taken the remand as an invitation to re-litigate numerous

3
4

questions that they had previously presented to this Court. While that is their prerogative,

5

Defendants have not provided any convincing reason why the Court should reach a

6

different result. For example, Defendants continue to insist that the only state and local

7

enforcement activity preempted by federal law is a prosecution that relies solely on an I-

8

9. See Montgomery Br. at 19-23; AZ Br. at 16. This issue was addressed exhaustively at

9

the preliminary injunction stage, and the Court already found that the federally preempted

10

field was broader than the use limitation in 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G). Doc.

11

133 at 22-23.12 Moreover, as set forth more fully in Plaintiffs’ Motion for Summary

12

Judgment, the use limitation applies to more documents than just the I-9 and the plain

13

language definition of “use” covers more than reliance on a document as legally

14

admissible evidence in a prosecution. See Pls.’ MSJ at 15-16; cf. Montgomery Br. at 19-

15

23; AZ Br. at 16.

16

In addition to ignoring the Court’s prior findings, Defendants also ignore the

17

amicus brief filed by the United States, which made clear not only that the use limitations

18

in IRCA go beyond use of the I-9 in prosecutions, but that the enforcement of criminal

19

laws against undocumented immigrants for employment-related fraud they commit

20

outside of the I-9 process on account of their undocumented status—for example, on

21

employment applications, tax documents and other documents—likewise “intrude[] upon

22

matters that Congress [] brought within its ‘exclusive governance[.]’” Amicus Brief of

23

the United States (“U.S. Br.”), Puente Arizona v. Arpaio, No. 15-15211, 2016 WL

24

1181917, at *14-16 (9th Cir. March 25, 2016).
Defendant Montgomery does make some attempt to address other federal statutes

25
26
27
28

12

Defendant Montgomery’s observation that the Ninth Circuit determined IRCA’s use
limitation to preclude reliance on the “Form I-9 and attached documents,” Montgomery
Br. at 20 (citing Puente Arizona, 821 F.3d at 1108), thus misses the point. See U.S. Br. at
15.
29

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1

in the scheme regulating fraud by undocumented workers. Montgomery Br. at 20. He

2

points to two statutes in the scheme that punish the use of fraudulent documents to satisfy

3

federal immigration requirements. Id. at 20. But in doing so, Defendant Montgomery

4

neglects to address other parts of the federal scheme, including provisions that govern the

5

use of “information” and the employment verification “system.” See Pls.’ at MSJ 15-16.

6

More importantly, Montgomery fails to appreciate that Plaintiffs’ preemption claim goes

7

beyond the literal text of the federal statutes and analyzes whether Defendants’ policies

8

and practices pose “an obstacle to the accomplishment and execution of the full purposes

9

and objectives of Congress.” Arizona v. United States, 132 S. Ct. 2492, 2501 (2012)

10

(citation omitted). As the United States explained, “[t]he circumstances in which an

11

[undocumented] employee may commit [] fraud [to demonstrate authorization to work]

12

are not limited to the attestation in the Form I-9 and supporting documents,” and the

13

prosecution of undocumented immigrants for such fraud outside of the I-9 process can be

14

just as disruptive to the federal scheme. U.S. Br. at *15-16. Indeed, the only

15

“constitutional applications” discussed by the Ninth Circuit were those where a person

16

“uses another’s identity for non-immigration reasons.” Puente Arizona, 821 F.3d at 1104,

17

1106.13
Defendants’ notion of conflict preemption is artificially narrow. They effectively

18
19

ask the Court to parse applications of Arizona’s identity theft and forgery laws within the

20

field of punishing undocumented-worker fraud and speculate on the particular

21

prosecutions would harm federal interests or not. But where, as here, Congress has

22
23
24
25
26
27
28

13

For this reason, Montgomery’s reliance on statistical analysis of the types of
documents used in prosecutions, see Montgomery Br. at 21-22, is unavailing. The
numbers alone do not establish that defendants used the documents for reasons other than
to maintain an identity for work authorization purposes. Further, a substantial percentage
of the documents charged by MCAO included driver’s licenses, Social Security cards and
other documents that may well have been submitted by workers as part of the
employment verification process. Montgomery SOF ¶¶ 60-61; see Pls.’ MSJ at 15-16
(discussing documents that can be used to verify an individual’s identity or work
authorization status). Because MCAO did not attempt to determine if such documents
were seized from an employer merely because an employee had presented it at the time
of the I-9 verification, MCAO cannot establish it has complied with the use limitation in
IRCA. Pls.’ SSOF ¶ 272.
30

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1

reserved “prosecutorial power, and thus discretion” to federal authorities, Valle del Sol v.

2

Whiting, 732 F.3d 1006, 1027 (9th Cir. 2013), state prosecutions within that field

3

“inevitably conflict” with federal law, and are thus preempted. Buckman Co. v. Plaintiffs’

4

Legal Comm., 531 U.S. 341, 350 (2001). Defendants’ suggestion that Arizona

5

prosecutions of undocumented workers can complement or exist harmoniously with

6

federal law is thus unfounded. See, e.g., Montgomery Br. at 7-8.14
Defendants Montgomery and Arpaio also assert that their policies and practices in

7
8

enforcing the challenged provisions against undocumented workers are not preempted

9

because they do not take make individual enforcement decisions based on the

10

immigration status of the suspect or take enforcement actions for the purpose of affecting

11

the suspect’s immigration status. Montgomery Br. at 8, 16; Arpaio Br. at 10. But this is a

12

red herring. Plaintiffs’ as-applied preemption claim does not depend on the County

13

Defendants having an intent to discriminate.15
Finally, the Defendants make a circular argument—as they have before—that

14
15

because an undocumented worker may be deported under federal removal statutes based

16

on a conviction for the violation of the worker identity provisions or the Arizona forgery

17

statute, Congress must have somehow intended to reserve a role for states. Montgomery

18

Br. at 7; Arpaio Br. at 7-8. But the fact that a (state or federal) conviction can lead to

19

deportation does not suggest any design by Congress to save an otherwise preempted

20

prosecution. The federal immigration courts and Courts of Appeals generally do not

21

review convictions triggering removability for legal validity, and none of the removal

22

cases cited by Defendants address the issue of preemption. Those cases therefore cannot

23

be used to support the contention that Defendants’ arrests and prosecutions have been

24

“validat[ed]” by the Ninth Circuit. Montgomery Br. at 7. If Defendants were correct in

25
26
27
28

14

Montgomery’s contentions about the text and history of 18 USC § 1028, Montgomery
Br.
at 7, 13 n.7, have been addressed supra at 4-5.
15
Indeed, the Defendants did not need to make decisions based on the status of the
offender to arrest and prosecute large numbers of undocumented immigrants, since it is
“legally” and “factually” obvious that undocumented workers would have to “use
someone else’s documents to work.” Pls.’ Resp. to Montgomery SOF ¶ 47 (quoting Vicki
Kratovil).
31

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1

their hypothesis that all state convictions encompassed in the generic categories of crimes

2

triggering removability cannot be preempted, then even convictions that Defendants

3

agree would be at odds with the federal scheme—such as those based on an I-9

4

document—would be included.

6

B. The Record Shows That the County Defendants Indisputably Have a
Policy and Practice of Enforcing the Worker Identity Provisions and
Forgery Statute Against Undocumented Immigrants

7

For the reasons set forth in Plaintiffs’ Motion for Summary Judgment, it is quite

8

clear that the County Defendants have a policy and practice of enforcing the challenged

9

provisions against undocumented immigrants in violation of the Supremacy Clause. See

5

10

Pls.’ MSJ at 17-20.

11

Defendants’ assertions to the contrary do little to undermine this stark reality.

12

Defendant Montgomery takes great pains to distance himself from the controversial,

13

high-profile worksite investigations that MCSO conducted in partnership with MCAO for

14

a number of years. See, e.g., Montgomery Br. at 26-27. Sheriff Arpaio, for his part,

15

justifies the worksite operations as an “exceptionally efficient [enforcement] tool.”

16

Arpaio Br. at 9, 14. It is certainly the case that the worksite operations represented a

17

concerted, proactive effort to arrest high numbers of undocumented immigrants for

18

employment-related fraud. Both agencies are responsible for the suffering that the

19

worksite operations caused. See Pls.’ MSJ at 20-24; see also Pls.’ SOF ¶ 108; Pls.’ Resp.

20

to Montgomery SOF ¶ 84. But the worksite raids were not the only cases brought by

21

Defendants that offend federal law. Moreover, whether a prosecution is preempted does

22

not turn on whether or not there is an identifiable victim in the case.

23

Defendant Montgomery’s implementation of a formal written policy regarding I-

24

9s also does not change the analysis. Cf. Montgomery Br. at 23-24. First, as discussed

25

above at supra Pt. III.B, this policy does not address nearly the full scope of preempted

26

conduct by his agency. Second, the policy, established for the first time on September 17,

27

2014, was initiated after this litigation was filed, apparently because Mr. Montgomery

28

felt there was a need to address it explicitly. Pls.’ SOF ¶ 83. Post-filing voluntary
32

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1

cessation of illegal conduct generally will not moot a claim. See City of Mesquite v.

2

Aladdin's Castle, Inc., 455 U.S. 283, 289 n.10 (1982).
In sum, consistent with the worker identity provisions’ legislative purpose, the

3
4

County Defendants have prosecuted large numbers of undocumented immigrants over

5

nearly a decade. In doing so, they have failed to balance their zealousness for

6

enforcement—regardless of the motivation—with any of the other considerations present

7

in the federal system. See Pls.’ MSJ at 19-20. The result has been widespread devastation

8

for arrested workers and their families, fear, stigma, and a negative impact on workers’

9

rights. Id. at 10-11.16 As the record is now fully developed and ripe for adjudication on

10

Plaintiffs’ as-applied claim, the Court should grant Plaintiffs the relief they seek.

11

C. Defendants’ Discussion of Victim Harms Is Legally Irrelevant

12

Defendants devote a substantial portion of their briefing and evidentiary

13

submissions to the issue of harm to victims. While Plaintiffs are not unsympathetic to the

14

impact that use of false identifying information can have on individuals whose

15

information ends up being used,17 Defendants have failed to make one critical showing

16

with respect to these submissions—legal materiality.
Defendants may attempt to argue that because Plaintiffs are requesting equitable

17
18

relief, the Court should “balance the interests” of Plaintiffs against that of victims. But as

19

this Court ruled earlier this year on a discovery issue “equitable balancing is

20

inappropriate where a party’s constitutional rights are at stake.” Doc. 440 at 3. “Stated

21

differently, ‘enforcement of an unconstitutional law is always contrary to the public

22

interest.’” Id. (citing Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)).

23
24
25
26
27
28

16

In a surprising turn, Sheriff Arpaio makes a completely unsupported claim that the
worksite operations were somehow designed, in part, to protect undocumented workers
from labor abuse. Arpaio Br. at 13 n.9 On the contrary, the only abuses that the MCSO
ever investigated against employers was related to the hiring of undocumented workers,
not their treatment. Pls.’ SOF ¶¶ 149, 151-55. Sheriff Arpaio fails to even grasp the
chilling effect that criminal enforcement against undocumented workers can have. See
Pls.’ SOF ¶¶ 5, 148.
17
Contrary to Defendants’ representation, Montgomery Br. at 11, Plaintiffs have never
claimed in this case that fraud in response to the federal immigration laws “cannot harm
anyone.”
33

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If the Defendants’ policies and practices are constitutional, then the Court cannot

1
2

disturb them, regardless of what Defendants’ motives were for pursuing them. If,

3

however, Defendants’ arrest and prosecution of undocumented workers is

4

unconstitutional, then their appeal to victims’ rights does not legitimate their actions. No

5

one would argue that Defendants could regularly violate the Fourth Amendment or Brady

6

obligations in order to vindicate victims’ rights. As political actors, Defendants may wish

7

to try to defend their policy choices in the court of public opinion. Those appeals,

8

however, do not appropriately belong before this Court.
Because Defendants’ evidence about victim harms is largely inadmissible,

9
10

Plaintiffs will leave specific responses to that evidence to their separate Rule 56.1(b)

11

Controverting/Supplemental Statement of Facts. One point is worth highlighting here.

12

Defendant Montgomery makes a suggestion that the only way some individuals will be

13

able to resolve their tax or benefits issues is by seeking criminal prosecution. See

14

Montgomery Br. at 13. He asks the Court to take judicial notice of several government

15

websites where victims of identity theft are directed to file complaints with local police.

16

Montgomery Br. at 2, 12-13.18 However, Defendant Montgomery has not established that

17

it is criminal prosecution by state and local authorities—as opposed to the filing of a

18

police complaint—that is necessary to resolve tax and benefits issues with other

19

government agencies. Plaintiffs’ requested injunction would not prevent Defendants from

20

taking such complaints and referring them to the appropriate federal authority. See Pls.’

21

Resp. to Montgomery SOF ¶¶ 34, 38.19

22
23
24
25
26
27
28

18

If this Court should find the information relevant at all, Plaintiffs do not object to the
Court taking judicial notice of the existence and authenticity of the websites, as well as
the other records that Montgomery requests judicial notice of (i.e., criminal court
records). However, judicial notice cannot extend to the veracity of any statements made
in those documents or other content that is subject to reasonable dispute. See Lee v. City
of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
19
The FTC and IRS’s general instruction to the public to file complaints with local
police certainly cannot be taken as a legal endorsement of state and local authorities
taking action in any particular case. Cf. Montgomery Br. at 13.
34

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1

D. Plaintiffs’ Requested Injunction Would Not Affect Other Applications of
the Challenged Statutes Outside of the Federally Preempted Field

2

For their as-applied preemption claim, Plaintiffs do not contend that the Court

3

should enjoin applications outside of the federally preempted field. For this reason,

4

examples offered by Defendants of individuals being prosecuted for securing financial

5

benefits, concealing criminal history from their employer, posing as someone else with a

6

professional or trade license or evading security in a critical area do not preclude

7

summary judgment for Plaintiffs (or entitle Defendants to summary judgment). Cf.

8

Arpaio Br. at 10; Montgomery Br. at 25; see Pls.’ Resp. to Montgomery SOF ¶¶ 28-29,

9

77-79. If those cases do not involve the use of false identifying information in the

10

employment verification process and/or to otherwise demonstrate eligibility to work

11

under federal law, Defendants’ ability to prosecute the cases would remain unaffected.

12

IV. MARICOPA COUNTY IS LIABLE FOR THE UNCONSTITUTIONAL
ACTIONS OF SHERIFF ARPAIO UNDER MONELL

13

The County is liable for the unconstitutional law enforcement actions of Sheriff

14

Arpaio. The County’s assertion otherwise ignores the previous judgments of this Court

15

and is without merit. Every court that has considered this question, including this one, has

16

recognized Maricopa County liability for the Sheriff’s law enforcement decisions.

17

Further, the County’s argument that it was not the “deliberate moving force” behind the

18

actions in question, Maricopa County Motion for Summary Judgment (“County Br.”),

19

511, at 9-10, misstates the law.

20
21

A. The County Has Provided This Court No Reason to Reconsider Its Prior
Rulings On County Liability In This Case

22

The County is bound by the earlier decisions of this Court. Under the law of the

23

case doctrine, “a court is generally precluded from reconsidering an issue previously

24

decided by the same court, or a higher court in the identical case.” Herrington v. Cnty. of

25

Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (quoting Milgard Tempering, Inc. v. Selas

26

Corp. of America, 902 F.2d 703, 715 (9th Cir. 1990)). The law of the case applies where

27

the issue has been decided “explicitly,” id., as this Court has done twice. Docs. 133 at 38-

28

40; Doc. 164.
35

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 42 of 49

The County may not here re-litigate issues that have already been thoroughly

1
2

adjudicated merely because it does not like the outcome. The County provides no new

3

law or evidence that would mandate or suggest a different outcome. The Court should not

4

disturb its prior well-considered conclusion on the same issue.

5

B. Maricopa County Cannot Escape Its Liability Under Monell for the
Policies and Actions of the Sheriff

6

Under Monell, Maricopa County is liable for the actions of “those officials or

7

governmental bodies who speak with final policymaking authority” for the County.

8

McMillian v. Monroe Cty., Ala., 520 U.S. 781, 784-85 (1997) (quoting Jett v. Dallas

9

Independent School Dist., 491 U.S. 701, 737 (1989)). The law clearly compels County

10

liability for the unconstitutional law enforcement actions of the Sheriff.20

11

Every court that has considered this question, including this one, has recognized

12

that Maricopa County is liable for its Sheriff’s law enforcement decisions. See United

13

States v. Maricopa Cnty., 915 F. Supp. 2d 1073, 1083-84 (D. Ariz. 2012) (finding that as

14

a matter of law, the County is liable for the Sheriff’s policies); Mora v. Arpaio, No. CV-

15

09-1719-PHX-DGC, 2011 WL 1562443, at *7 (D. Ariz. Apr. 25, 2011) (same); Lovejoy

16

v. Arpaio, No. CV 09–1912–PHX–NVW, 2010 WL 466010, at *12 (D. Ariz. Feb. 10,

17

2010) (same); Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1038-39 (D. Ariz.

18

2009) (same); see also Guillory v. Greenlee Cnty, No. CV 05–352 TUC DCB, 2006 WL

19

2816600, at *4-5 (D. Ariz. Sept. 28. 2006) (same for Greenlee County); see also

20

Flanders v. Maricopa Cnty, 54 P.3d 837, 847 (Ariz. App. 2002) (as a matter of law, the

21

County is liable for the Sheriff’s policies as to jail management).21

22

The County here fails to analyze this issue under the relevant two-part test. A

23
24
25
26
27
28

20

As this Court has already recognized, given that the County is the proper defendant
under Monell with regard to the Sheriff, it is not necessary for the Court to reach a
decision with regard to whether County Attorney Montgomery. Doc. 133 at 40.
21
Last year, the Ninth Circuit ordered that the County be substituted for the Maricopa
County Sheriff’s Office (“MCSO”) as a defendant in Melendres v. Arpaio, 784 F.3d
1254, 1260 (9th Cir. 2015). The County petitioned for a panel rehearing and an en banc
determination. County’s Pet. for Panel Reh’g and En Banc Determination, Melendres,
No. 13-16285, Doc. 77. The panel unanimously denied the County’s petition, and no
judge requested a vote in response to the petition for rehearing. Id., Doc. 87 (9th Cir. June
26, 2015).
36

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1

municipality is liable under Monell for the actions of “those officials or governmental

2

bodies who speak with final policymaking authority for the [municipality] concerning the

3

action alleged to have caused the particular constitutional or statutory violation at issue.”

4

McMillian, 520 U.S. at 785 ( (quoting Jett v. Dallas Independent School Dist., 491 U.S.

5

701, 737 (1989)). The Monell two-part test requires a consideration of whether “the

6

official (1) had final policymaking authority ‘concerning the action alleged to have

7

caused the particular constitutional or statutory violation at issue’ and (2) was the

8

policymaker for the local governing body for the purposes of the particular act.” Weiner

9

v. San Diego Cty., 210 F.3d 1025, 1028 (9th Cir. 2000) (quoting McMillian, 520 U.S. at

10

785); see also Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir. 2013), cert.

11

denied, 134 S.Ct. 906 (U.S. Jan 13, 2014). “Liability is imposed, not on the grounds of

12

respondeat superior, but because the agent’s status cloaks him with the governmental

13

body’s authority.” Flanders, 54 P.3d at 847. Here, the Sheriff holds final authority for

14

law enforcement and is the County’s policymaker for these purposes.

15
16

1. The Sheriff Has Final Policymaking Authority for Maricopa County Law
Enforcement Decisions.
The County misunderstands the first essential question required in a Monell

17

analysis. Monell requires that the Court adjudge whether the Sheriff—not whether the

18

County—is the final policymaker. McMillian, 520 U.S. at 785; see Doc. 511 at 2

19

(improperly disputing “whether the County is a ‘final policy maker’ for any of the other

20

defendants”). In Arizona, state law compels a finding that the Sheriff is the final

21

policymaker for the County on law enforcement matters. See Doc. 133 at 39.

22

“[T]o determine whether an official is a final policymaker, ‘courts consider

23

whether the official’s discretionary decisions are constrained by policies not of that

24

official’s making and whether the official’s decisions are subject to review by the

25

municipality’s authorized policymakers.” Lytle v. Carl, 382 F.3d 978, 985 (9th Cir. 2004)

26

(citation omitted). Here the County effectively acknowledges that the Sheriff is the final

27

policymaker. Doc. 511 at 4 (affirming that no county entity or official can review the

28
37

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1

Sheriff’s law enforcement decisions). The County’s arguments that it should not be held

2

liable because of the County’s “horizontal[]” structure and because the County “cannot

3

control or direct the Sheriff or County Attorney” are unpersuasive, County Br. at 3-6, and

4

indeed further support this Court’s holding that the Sheriff is the final policymaker.

5

2. The Sheriff Acts for the County in the Area of Law Enforcement

6

The Sheriff also acts on behalf of the County in pursuing its law enforcement

7

functions. As the County acknowledges, the relevant inquiry is one of state law, and

8

includes a consideration of a state’s constitution, statutes and case law. McMillian, 520

9

U.S. at 786; Brewster v. Shasta Cty., 275 F.3d 803, 806 (9th Cir. 2001). This Court

10

properly found, as have all other courts to have considered this question, see Doc. 133 at

11

39, that Arizona state law provides that the Sheriff acts for the County, and not the State,

12

in its criminal investigative functions. Id. at 38-40; Doc. 164.

13

The fact that the Sheriff’s powers come from State law, see County Br. at 6, citing

14

Merrill v. Phelps, 84 P.2d 74, 76 (Ariz. 1938), is unremarkable. As this Court has found,

15

the manner in which the Arizona Constitution and Arizona state law establish the office

16

and duties of the Sheriff actually support the ultimate conclusion that the Sheriff acts for

17

the County in the area of law enforcement.22 The fact that the County Defendant can

18

point to cases finding that sheriffs in other states act on behalf of the State and not the

19

County, Doc. 511 at 10, is irrelevant to the question of whether Arizona state law

20

recognizes that its sheriffs act on behalf of their respective counties. See Brewster, 275

21

F.3d at 806.

22

The County improperly disregards the significance of its role in setting the

23

Sheriff’s budget, and its indemnification of civil claims against its officers. County Br. at

24

6-8. While not dispositive, both are considered relevant as to the question of county

25
26
27
28

22

The Arizona Constitution explicitly identifies sheriffs as county officers. Ariz. Const.
Art. XII, Sec. 3; A.R.S. § 11-401; see also Merrill v. Phelps, 84 P.2d 74, 76 (Ariz. 1938)
(“the sheriff is a county officer”). Maricopa County voters elect the Sheriff, and the
County’s Board is the sole judge of his qualifications. A.R.S. § 11-402. A County grand
jury may initiate proceedings for his removal. A.R.S. § 38-341 et seq.
38

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liability under Monell.23,24 The County’s focus on its relative lack of control over the

2

Sheriff is likewise misguided. County Br. at 3-4, 6. As with the County’s other

3

arguments, this argument has already been considered and rejected by this Court. Doc.

4

133 at 39; Doc. 164 at 3-4. The Sheriff’s relative “independen[ce] of other political

5

entities within the county does not mean that he does not act for the county.” Brewster,

6

275 F.3d at 810 (emphasis in original).25 Moreover, the suggestion that the County is

7

effectively powerless to act over the Sheriff is inaccurate.26

8

C.

9

There is no exception for cases involving injunctive relief. See infra at 36 (listing

10

No Exceptions Asserted by the County Are Relevant Here

several injunctive relief cases where the County has been held liable). The County’s

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13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

23

The Ninth Circuit has identified a County’s indemnification of claims as a “‘crucial
factor’ [that] weighed ‘heavily’” in the direction of county liability. Brewster, 275 F.3d at
807 (quoting Streit v. Cty of L.A., 236 F.3d 552, 562 (9th Cir. 2001). The cases cited by
the County to suggest these factors are irrelevant as to liability are inapplicable. Jones v.
City of N.Y., 988 F. Supp.2d 305, 314 (E.D.N.Y. 2013) (lack of Monell liability upon a
finding that prosecutors are regulated by the State and not the municipality—with the
payment of budgets not a primary factor in the court’s review); Franklin v. Zaruba, 150
F.3d 682, 685-86 (7th Cir. 1998) (considering a different issue—whether the Eleventh
Amendment barred a suit against the Sheriff—and noting that “sheriffs occupy a
somewhat unique position under Illinois law”); Pellitteri v. Prine, 776 F.3d 777, 783
(11th Cir. 2015) (also considering Eleventh Amendment immunity and not Monell
liability).
24
Although Plaintiffs request only declaratory and injunctive relief and not damages, the
County’s participation as a defendant has some meaning, since Plaintiffs seek to halt the
Couny’s expenditure of tax revenues to finance arrests, detentions and prosecutions under
the worker identity provisions. SAC ¶¶ 18, 151.
25
The fact that A.R.S. § 11-251 neglects to mention what sort of authority, if any, the
County should exert over the Sherriff or Attorney’s office “has no obvious bearing” over
whether the County should be liable for the Sherriff and Attorney’s actions. Goldstein,
715 F.3d at 755 (a court’s “task . . . is not merely to weigh the amount of control that the
[state] and county board of supervisors possess over [the Sheriff]” but “whether the
[Sheriff] was acting on behalf of the state or the county” (emphasis in original)).
26
The County Board of Supervisors is empowered to “[s]upervise the official conduct of
all county officers . . . charged with assessing, collecting, safekeeping, managing or
disbursing the public revenues,” A.R.S. § 11-251(1). The Board approves the Sheriff’s
appointed deputies and sets their salaries. A.R.S. § 11-409; State v. Stago, 312 P.2d 160,
162 (Ariz. 1957). It may compel the Sheriff’s attendance at their meetings to preserve
order and direct him to serve subpoenas, notices, or citations. A.R.S. § 11-219.
Furthermore, it “may require [him] to make reports under oath on any matter connected
with the duties of his office, and may require [him] to give such bonds or further bonds as
may be necessary for the faithful performance of his respective duties.” A.R.S. § 11-253.
If the Sheriff “neglects or refuses” to make such a report, or to give the bond within ten
days of the request, the Board may remove the Sheriff from office. Id.; see also, e.g.,
Hounshell v. White, 199 P.3d 636 (Ariz. App. 2008).
39

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1

argument that it should not be liable because the County “could not be held in contempt”

2

for disregarding a court order, Doc. 511 at 5, is misplaced. The Court need not decide

3

now whether the County would be subject to coercive sanctions in civil contempt, only

4

that it is a proper party to be enjoined. See Doc. 133 at 39-40. Moreover, in Melendres,

5

the Court recently recognized that Maricopa County could be a party in a contempt

6

proceeding and subject to financial responsibility for remedies in the event of a finding of

7

civil contempt by the Sheriff. Melendres v. Arpaio, No. 07-CV-2513, Transcript of May

8

31, 2006, Tr. 10:22-14:10.
D. The County Misunderstands the Role of the Supreme Court’s “Moving
Force” Test in Brown

9
10

The County’s contention that it was not the “deliberate moving force” behind the

11

challenged actions, County Br. at 9, misunderstands the law. The County misstates the

12

Supreme Court’s holding in Bd. of Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 405,

13

408 (1997) (rejecting liability of a county sheriff for a deputy’s single, isolated act with

14

claim premised upon the Sheriff’s inadequate review of the deputy’s hiring record). In the

15

instant case, the issue is not whether the Sheriff or the County should be liable for a

16

single officer’s isolated act, but whether the County is liable for the Sheriff’s pattern of

17

unconstitutional law enforcement. Maricopa County’s responsibility is not based on

18

respondeat superior liability for tort actions. Rather, “[Maricopa] County is liable [under

19

Monell] as a matter of law.” See, e.g., Flanders, 54 P.3d at 847.27

20
CONCLUSION

21
22

For the reasons set forth above, and in Plaintiffs’ Motion for Partial Summary

23

Judgment, this Court should deny summary judgment on Plaintiffs’ equal protection

24

claim and grant Plaintiffs relief on their as-applied preemption claim. Plaintiffs do not

25

oppose entry of summary judgment on their facial preemption claim on the limited

26
27
28

27

Defendant Montgomery also argues that “there is no evidence that Montgomery’s
official policies and practices were the ‘moving force’” behind enactment of Arizona’s
worker identity provisions or the submittals by individual law enforcement agencies.
Montgomery Br. at 15, 18, 28. These assertions thus have no apparent purpose, since
County Attorney Montgomery’s liability does not depend on Monell liability.
40

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grounds laid out in the Ninth Circuit’s opinion.

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RESPECTFULLY SUBMITTED this 19th day of August, 2016.

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By

/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
Jessica Karp Bansal
Emilou MacLean
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Jessica Myers Vosburgh
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Sarah Anchors
Hector Diaz
Edward J. Hermes
Jose A. Carrillo
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Cindy Pánuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Katheleen E. Brody
Daniel J. Pochoda
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
41

Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 48 of 49

Phoenix, AZ 85016
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On the brief:
Kate Huddleston

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Case 2:14-cv-01356-DGC Document 575 Filed 08/19/16 Page 49 of 49

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CERTIFICATE OF SERVICE

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I hereby certify that on the 19th day of August, 2016, I electronically transmitted

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the attached document to the Clerk's Office using the CM/ECF System for filing. Notice

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

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

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Dated: August 19, 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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