The first lawsuit challenging the legality of a detention and arrest as a consequence of Arizona’s “Papers, Please!” law (SB 1010) was filed this week by the ACLU of Arizona on behalf of Ms. Maria del Rosario Cortes Camacho.
SB 1070, enacted in 2010, requires Arizona state and local law enforcement officers to make “a reasonable attempt …, when practicable, to determine the immigration status of the person” whenever an officer makes a “lawful contact” with any person “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”
Although portions of the law were found unconstitutional, this part of the law was upheld by the Supreme Court in 2012 on the basis that at least this part of the law could be applied Constitutionally, if and only if it was construed solely as creating an obligation on law enforcement officers to “attempt” to verify immigration status without committing other Constitutional violations in the process.
The Supreme Court declined to presume that this “attempt” would necessarily, or in practice, result in more prolonged detention than would otherwise be permitted, or in arrest that wouldn’t otherwise have been made:
There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law…. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.
As we said at that time:
Close reading of the law and the Supreme Court opinion makes clear that the next step for opponents of the law is to test how, in practice, the state of Arizona will answer the questions asked by the Supreme Court: Will people in Arizona be detained, will their detentions be prolonged, or will their releases from custody be delayed (without, in each case, some other lawful basis) merely to check their immigration status?
If any of things happen to people in Arizona, the Supreme Court has explicitly left it open for them to bring new Constitutional challenges to those infringements of human rights.
That is exactly what is now happening in Cortes v. Lakosky. According to the complaint, Ms. Cortes had applied for a special category of U.S. visa for certain victims of mental or physical abuse. That application was eventually granted, and Ms. Cortes lawfully remains in the U.S. But when she was stopped and cited for minor, non-criminal traffic violations (which did not, in themselves, provide a basis for arrest), a Pinal County Sheriff’s deputy demanded evidence of her legal presence in the U.S., basing that demand on SB 10170.
Ms. Cortes actually had a copy of her pending visa application in the glove compartment of her car, but the sheriff’s deputies didn’t want to look at it. Rather than citing her on the spot and letting her go on her way as soon as that was done, the Instead, they detained her, handcuffed her, transported her in custody to an office of the Border Patrol, and turned her over to Border Patrol agents who held her for five more days.
No criminal charges and no allegations of illegal presence or other immigration law violations were ever filed against Ms, Cortes. The sole basis for the prolongation of Ms. Cortes’ detention, her arrest, and her transportation to the Border Patrol office was an (unwarranted) suspicion of unlawful presence in the U.S.
The complaint seeks damages from the sheriff’s deputies, in their individual capacities.