Appeals Court To Hear Arizona SB 1070 Harboring-And-Transporting Provision
April 02, 2013

PHOENIX -- In 2010, Arizona passed its now infamous SB 1070, one of the strictest state immigration enforcement laws in the country. Since then, three of its most controversial provisions have been struck down following United States Supreme Court review, and others are still being litigated.

Tuesday in San Francisco, the Ninth Circuit takes up one of those remaining sections of the law.

The provision, known as section 13-2929, makes it a misdemeanor to knowingly harbor or transport undocumented immigrants.

Cecillia Wang of the American Civil Liberties Union is one of the attorneys challenging SB 1070 along with a coalition of civil rights groups. Wang says this provision would make everyday activities criminal.

“Like giving your neighbor a ride to grocery store, or to school, or to work, helping someone go to the hospital,” Wang said. “On the theory that if you know that the person is here without papers and you are helping them anyway, or taking them somewhere, that you are transporting them and harboring them in violation of Arizona state law.”

But even that interpretation of the law is in dispute. The state claims its not meant to be that severe since a person must be furthering someone’s illegal presence. Plus it is a secondary offense, which means police have to have another reason to stop someone before they can charge this crime.

Back in 2010 a federal district judge said the law could go forward, and it did for two years. But then this fall the judge put it on hold on the grounds that it conflicts with federal law.

“Section 13-2929 is similar to laws that have now been knocked out in every state that has tried to pass them,” Wang said. “So in Georgia, in Alabama, in South Carolina.”

But lawyers for Arizona disagrees with those rulings, and are appealing to the Ninth Circuit to allow it to be reinstated.

Arizona Governor Jan Brewer’s spokesman Matt Benson says Arizona has a unique need for the harboring and transporting provision.

“Arizona communities are the ones being hit hardest by illegal immigration, the drop houses, the smuggling organizations that are transporting and harboring individuals as part of the human smuggling trade,” Benson said.

Lawyers for the state argue this section mirrors a federal harboring law, so therefore doesn’t conflict with federal law.

“This was one more tool for law enforcement to be able to go after those organizations and to protect these communities,” Benson said.

But was it a tool local law enforcement used when it was in effect for two years?

“I think the total number of cases that we have actually filed at this point is zero,” said Bill Montgomery, the county attorney for Maricopa County.

But he also says the lack of charges in Maricopa County doesn’t necessarily mean there have been no crimes in that category.

“A lot of the activity that SB 1070 identified as criminal conduct, can actually be taken care of under some of the other criminal statutes that we already had,” Mongtomery said.

That's because in addition to SB 1070, the state has also passed a number of human smuggling statutes.

So for example, if police believed you had picked up a carload of migrants who had just crossed the border illegally, and then drove them into Phoenix, you could potentially face charges for violating 13-2929.

“But I could just as readily charge you as an accomplice to human smuggling, which is a higher-class felony,” Montgomery said.

That would be a charge under one of the state’s human smuggling laws.

“And as a prosecutor, if I had that evidence, I would look to the higher-class felony first,” Montgomery said.

But how the Ninth Circuit Court of Appeals rules on this statute could have an impact beyond just that section of the law.

ACLU attorneys say if the courts toss it out, it could also undermine the legal justification for Arizona’s human smuggling laws.