BY LINDA BENTLEY | MAY 29, 2013

Judge creates new protected class of lawbreakers in Maricopa County

In other words, Arpaio didn’t need a 287(g) MOA for the authority to enforce violations of the INA

PHOENIX – On Friday, U.S. District Judge G. Murray Snow issued a 142-page order granting a permanent injunction against Maricopa County Sheriff Joe Arpaio (l) and MCSO, calling the agency’s LEAR (Law Enforcement Agency Response) policy unconstitutional.

The class action complaint filed in 2007 by the ACLU on behalf of a group of citizens and aliens in the country legally, claiming they were targeted, detained or harassed based solely on their ethnicity, stems from the case of Manuel de Jesus Ortega Melendres.

In December 2011, Snow, a George W. Bush appointee, issued a ruling stating any Hispanic stopped by MCSO deputies between Jan. 1, 2007 and on into the future, could sue the sheriff’s office in a class-action lawsuit while enjoining MCSO from stopping people for being under suspicion of human smuggling law violations.

Janet Napolitano, Department of Homeland Security Secretary, subsequently revoked MCSO’s 287(g) MOA (Memorandum of Agreement) that allowed Arpaio to enforce federal immigration laws.

Snow stated, “[T]he court is not enjoining MCSO from enforcing valid state laws, or detaining individuals when officers have reasonable suspicion that individuals are violating a state criminal law. Instead, it is enjoining MCSO from violating federal rights protected by the United States Constitution in the process of enforcing valid state law based on an incorrect understanding of the law.

“A policy of detaining people pursuant to laws that MCSO has no authority to enforce, or detaining them without reasonable suspicion that they are violating laws it can enforce constitutes ‘continuing, present adverse effects’ and therefore merits injunctive relief.”

Plaintiff Manuel de Jesus Ortega Melendres, a citizen and resident of Mexico, was legally present in the United States on a visitor’s visa.

Melendres was arrested in September 2007, after he was picked up as a day laborer from the Good Shepherd of the Hills Episcopal Church parking lot in Cave Creek where it operated a day labor center for illegal aliens.

MCSO had pulled over the driver on a traffic violation.

While Melendres, a retired school teacher, was in the country legally, he did not have work visa.

The injunction issued by Snow on Friday prohibits MCSO from:

Detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.
Following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County.
Using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant.
Using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization.
Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law.
Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present.
Detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions.

Defense Attorney Timothy Casey stated the plaintiffs presented no evidence that race played a factor in any of MCSO’s traffic stops and said race and ethnicity had nothing to do with any of the individuals stopped. Casey also stated MCSO has never engaged in a saturation patrol that was not based on criminal activity.

While the sheriff’s office will abide by the judge's ruling, Casey said it will most likely appeal.

When Congress passed 8 USC §1252c, authorizing the arrest of illegal aliens by state and local officers for violations of the INA (Immigration and Nationality Act), it was to overcome a perceived federal limitation on the ability of state and local officers to arrest an alien known by them to be dangerous because of past crimes committed in their jurisdiction”

And, in United States v. Vasquez-Alvarez, the defendant, government and court were all unable to identify any pre-§1252c limitations on the powers of state and local officers to enforce federal law.

Section 1252c(b) also mandates cooperation between the U.S. Attorney General and the states to assure that information in the control of the AG, including information in the NCIC, which would assist state and local law enforcement officials in carrying out the duties of §1252c is made available to the states.”

In United States v. Salinas-Calderon, a state trooper pulled over the defendant for driving erratically but soon found six individuals in the back of the defendant’s truck. Because the defendant, who was eventually charged with the crime of illegally transporting aliens did not speak English, the state trooper questioned the passenger (the defendant’s wife) and learned that the driver and the other six individuals were in the country illegally. From this line of questioning, the Tenth Circuit Court determined the trooper had probable cause to detain and arrest all the individuals.

In addition to the probable cause conclusion, the Tenth Circuit determined that a “state trooper has general investigatory authority to inquire into possible immigration violations.”

Congress also seems to have delegated arrest authority to local law enforcement officers in 8 U.S.C. §1324 (INA §274), which establishes a number of criminal penalties for the smuggling, transporting, concealing, and harboring of illegal aliens.

“Authority to Arrest,” under §1324(c), states: “[n]o officer or person shall have authority to make any arrest for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.”

The plain language indicates local law enforcement officers are empowered to make arrests for smuggling, transporting, and harboring offenses.

And, the legislative history of §1324 confirms that understanding. The Senate-passed version of this provision stated arrests for violations only could be made by INS agents and “other officers of the United States whose duty it is to enforce criminal laws.”

However, the House struck the words “of the United States.”

The elimination of that limiting phrase makes it clear Congress intended to authorize all criminal law enforcement officers, federal or otherwise, to enforce §1324.68.

In other words, Arpaio didn’t need a 287(g) MOA for the authority to enforce violations of the INA.

Snow’s ruling has the appearance of elevating Latino/Hispanics and illegal aliens of Latin decent to a preferred, untouchable class of lawbreaker while in Maricopa County.

Founder of Judicial Watch and Freedom Watch, Attorney Larry Klayman, who is representing Citizens for the Preservation of Fair Election Results against Respect Arizona’s unconstitutional recall of Arpaio, called the ruling “a disgrace” from a legal standpoint.

Arpaio announced on Wednesday, “We will appeal this ruling.”