MCSO Loses Appeal On Human Smuggling Enforcement
September 27, 2012

PHOENIX -- The Ninth Circuit Court of Appeals has sided with a federal district judge: Maricopa County Sheriff’s officers can’t detain people and investigate whether they are violating Arizona’s human smuggling statute solely because they are undocumented.

What is interesting is that MCSO's lawyers had tried to appeal the order, while insisting officers didn’t want to do the banned practice anyway.

But first, a little background.

Arizona’s human smuggling statute makes it a felony for a person to receive payment to knowingly transport someone who does not have proper immigration authorization into the country. In Maricopa County, both smugglers and the undocumented immigrants who pay them are routinely charged under the statute.

The issue of how MCSO officers are enforcing the human smuggling statute came up in an almost five-year-old racial profiling case against Sheriff Joe Arpaio and MCSO that went to trial this summer. In that case, Latino plaintiffs alleged that MCSO officers’ immigration enforcement tactics unfairly target Latinos in the county.

In a pre-trial hearing back in 2011, U.S. District Judge Murray Snow was trying to get to the bottom of whether Sheriff’s officers were detaining people just based on a reasonable belief they are in the country illegally.

A court exchange between Judge Snow and MCSO’s attorney went like this, according to a portion of the court transcript reprinted in plaintiffs’ briefs.

Court: [I]f you, as an MCSO officer, have a reasonable belief that someone is in this country illegally—

Counsel: Yes

Court: --that is not sufficient basis to detain them.

Counsel: Yes it is, a sufficient basis to detain them …. just based on one element you can reasonably detain them…

The “one element” MCSO counsel was referring to was one of the three elements that comprise a human smuggling violation. They are 1) The smuggled person is undocumented, 2) the person is being transported, 3) the transport is for a fee.

Lawyers for MCSO argued that if officers had reasonable suspicion of one element of the crime, they could investigate to see if human smuggling was afoot.

But Judge Snow disagreed, and placed an injunction barring them from detaining someone “based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.”

One reason? Unlawful immigration status is a civil violation, not a criminal one. Legal precedent in the Ninth Circuit is that an immigration violation alone can’t be used by police as a basis to form probable cause for a criminal investigation.

MCSO appealed to the Ninth Circuit, and oral arguments were held on Sept. 13 in San Francisco. But MCSO lawyers faced a tough crowd in the three judges panel assigned to hear the case.

Circuit Judge Marcia Berzon grilled MCSO attorney Tim Casey on why he was appealing the injunction.

Judge Marcia Berzon: … Is it the policy of the MCSO to do something that would violate this … injunction? ... That you are detaining people based only on reasonable knowledge or belief that the person is unlawfully in the United States. Are you saying that you want to be able to do that?

Tim Casey: Absolutely not.

Berzon: Well, then you can’t violate the injunction.

Casey’s argument was against the legal analysis behind the injunction, and that it would be difficult to enforce the human smuggling law if officers needed to have reasonable suspicion of all three elements of the crime before they could investigate.

But just a few minutes later, Berzon repeated the above question to Casey. Again, he denied that officers wanted to detain people based solely on illegal immigration status. His reply prompted Circuit Judge Susan Graber to echo Berzon.

“The injunction apparently asks you to not do something you don’t want to do anyway,” Graber said.

That conclusion appeared again in the Ninth Circuit Court of Appeals’ 23-page decision authored by Senior Circuit Judge J. Clifford Wallace.

“The Defendants repeatedly represented during oral argument—in contradiction to their representations to the district court during the summary judgment hearing—that they do not detain individuals based only on immigration status, nor do they desire to do so. The Defendants cannot be harmed by an order enjoining an action they will not take.”

Back at the district court, Judge Snow has yet to rule on the rest of the racial profiling case that spawned this particular legal fight. But even when Snow does rule, this debate over human smuggling enforcement won’t be settled.

There are two challenges to Arizona’s human smuggling statute pending. Plus, this month a federal judge blocked a related statute -- a portion of SB 1070 that makes it a crime to transport or harbor an undocumented immigrant.

On Wednesday, Arizona appealed the injunction, and now that too will go before the Ninth Circuit.

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