Arpaio's Office Appeals Restrictions On Human Smuggling Enforcement
A photo included with a MCSO Sept. 7 press release about the agency's recent human smuggling arrests.
September 14, 2012

SAN FRANCISCO -- There are a lot of pending lawsuits dealing with immigration enforcement in Arizona right now.

Of course there’s State Bill 1070 and the suits it spawned, but there are also multiple cases alleging discrimination and racial profiling within the Maricopa County Sheriff’s Office’s immigration enforcement efforts, and separate challenges to a 2005 law that made human smuggling a state crime.

And yet, all these pieces of litigation have tentacles that seem to connect and overlap.

“Because the central question of all of these is, 'what is the role of your local police officer in the area of immigration enforcement',” said attorney Annie Lai, outside of the Ninth Circuit Court of Appeals in San Francisco on Thursday, after she debated one detail in this big, messy fight.

Lai is one of the attorneys who represents plaintiffs in a class action racial profiling case against Sheriff Joe Arpaio that went to trial this summer.

The issue in court on Thursday was one small section of the lawsuit, and it deals with whether Arpaio’s deputies are enforcing the state’s human smuggling statute fairly.

Tom Liddy, an attorney for Maricopa County who represents the Sheriff’s Office, says yes, they are.

“What are the indicators of human smuggling?” Liddy said. “Well, someone is obviously being transported, they have to be transported for a profit, and they have to be in the country illegally."

Under Arpaio, deputies have used this statute to arrest on felony charges both the smugglers and the undocumented immigrants who pay them. The sheriff's office says 226 people were arrested during human smuggling operations this year.

Liddy says many of these are discovered through traffic stops, especially in known smuggling corridors.

“Let’s say there's a deputy who sees someone speeding, clearly exceeding the speed limit, pulls them over for that,” Liddy said. “Once that person is stopped for speeding, then, the deputy observes indicators of human smuggling.”

But what deputies are allowed to do next was the topic of courtroom debate in San Francisco in front of three federal appeals judges.

Last year, U.S. District Judge Murray Snow issued an injunction that said deputies could not detain and question people they suspected were engaged in human smuggling solely because they are known or believed to be in the country illegally.

Instead deputies must have grounds for suspecting other factors of human smuggling are afoot-- for example, the passengers actually paid to be smuggled.

The Sheriff's office lawyers are trying to appeal Snow’s order, which they argue is an unfair legal standard. Liddy goes back to the hypothetical traffic stop to explain why.

“You don't have any evidence that a person is being transported for a commercial purpose or not, but you want to detain them for perhaps, four, six, eight minutes to ask them questions to find out,” Liddy said. “That is all the deputies want to do.”

But Annie Lai said the injunction prevents Sheriff’s deputies from doing immigration enforcement under the guise of the human smuggling statute.

“This is not a case about whether or not deputies can fight human smuggling,” Lai said. “This is a case about whether they can stop a person and detain them for speaking Spanish or being a passenger and not having their identification on them.”

During oral arguments, two of the appeals court judges grilled the MCSO's lawyer.

It’s unclear when the panel will weigh in on this. They could wait until after Snow issues a final ruling on the racial profiling suit that is before him.

But this case has become yet another disputed detail in the bigger controversy over exactly what Arizona police can and cannot do when they encounter undocumented immigrants.

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