54. Some Specific Facts About the Federal Court Injunction Sheriff Arpaio Violated — And the Background Context Surrounding the Present Case

January 6, 2018

Deep Background:  The overarching question is whether a nation has a right to decide who may enter through its borders.  Under the principle of national sovereignty established by the Treaty of Westphalia in 1648, one of the powers that characterizes a nation is that only it may decide who enters and who may not.  On the other hand, there are people who assert the argument, on its face utterly absurd, that national borders should be open to any who want to cross them.  

Though they do not often say it out loud, the open borders position is the one taken by many “globalist” liberals and by most immigrant advocates and organizations.  One way they imply this position is by avoiding the term “illegal immigrant” and referring to those who have sneaked across the border as “immigrants” or at most, “undocumented” people, as if permission to enter a sovereign state were not required.

So the first question we need to consider, if only briefly, is, is there still a reason to have nations (with borders) in this present-day world.  A person’s answer to that question will influence how he or she views the rest of the events in this controversy.

Because of its position on the Mexican border, this controversy has played out in Arizona for many years. Under the Obama administration in the most recent decade, the policy of the federal government was that, by executive order from the president, it would not enforce immigration laws.  Under his Attorney General Eric Holder, Obama’s Department of Justice went even further, asserting that it was not the business of the States — in particular, Arizona — to enforce Federal immigration laws.

One further background element:  When Obama ran for president and some questioned whether he was born in the U.S. as is required of a presidential candidate, the AZ Secretary of State — in charge of elections — asked the Sheriff to investigate whether Obama was eligible to be placed on the ballot.  Arpaio’s investigators found that the birth certificate published by the White House was probably altered in Photoshop and contained some errors suggesting it may have been forged.  Many Arizonans, possibly a majority, have felt that later DOJ investigations of the Sheriff were in retaliation for his investigation of Obama’s birth certificate.

An Attempt to Describe and Clarify the Specific Issues in Sheriff Arpaio’s Case

Specific Background: of the criminal contempt of court for which the Sheriff was just pardoned by the President.

After being told that Arizona could not enforce federal immigration laws even though it is one of only four Mexican border states and is heavily impacted by illegal immigration, the state legislature passed two state laws, criminal statutes 13-2008 and 13-2009, making it a Class 4 or Class 3 felony to steal the identity of another person in order to defraud them or to obtain employment — which can mess up the victim’s social security, unemployment or worker’s compensation accounts.  The laws were also amended to make it a felony under the Legal Arizona Workers Act to assume the identity of a fictitious person to obtain employment.

One effect of these laws was to bring anyone who violated them, including illegal immigrants, under the jurisdiction of Arizona law enforcement officials, including Sheriff Arpaio.

http://www.azleg.gov/ars/13/02008.htm

http://www.azleg.gov/ars/13/02009.htm

A Phoenix-based immigrant rights group (that is careful never to distinguish between legal and illegal immigrants and essentially pretends they are the same thing), filed a class action law suit on June 18, 2014, in the Federal District Court in Arizona, against the Sheriff, the County Attorney and the Director of AZ Public Safety (the state police), challenging the two laws.

http://www.law.uci.edu/academics/real-life-learning/clinics/Puente-v-Arpaio-Complaint-061814.pdf

Ignoring the identity theft aspect, the suit framed the issue in terms of Arizona intending to criminally punish individuals “who do not have federal authorization to work” (because they have entered the country illegally and have stolen someone else’s identity) simply for the act of securing employment.  The suit says the laws were favored by “Arizona nativists”, meaning legal citizens, “to make life difficult for immigrants coming from Mexico and Latin America”.  (Again, the suit seeks to conflate illegal immigrants with legal immigrants.)

The suit alleged that portions of Arizona Statute 13-2008 and 13-2009 are preempted by federal law and violate the Equal Protection Clause of the U.S. Constitution.

Preemption means that if a government, like a state, makes a law, then no lower jurisdiction, like a county or city, can also make a law covering the same subject matter.

The Equal Protection Clause of the 14th Amendment to the Constitution says: “…nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

 In this lawsuit the judge agrees that on the face of it as written, the law applies to citizens as well as immigrants and illegal aliens.  On page 20 of the 48 page decision he says that, however, in a case where federal preemption is in question, the court may look at the intent of the statute in question, and that in this case there is an arguable likelihood that there was an “intent” for it to be applied mostly to illegal aliens, who would almost exclusively be the ones needing to use a false or stolen identity in order to get work.   (Not, as I understand it, that this court will decide the equal protection issue in this hearing, but the judge may have used this reasoning to satisfy one requirement for a “pre-trial” injunction: that the maker of the motion for injunction is likely to win on the Constitutional issue when the trial is finally held.   This is called “a likelihood of success on the merits”. )

The judge also decided that there was a likelihood and not just a mere possibility that the various plaintiffs would suffer irreparable harm if the court did not prevent the enforcement of the law while awaiting the later decision as to whether it was constitutional.

Finally, the court found that pubic interest favored an injunction.  Therefore in January of 2015 it granted the plaintiff’s request and enjoined the Defendants “from enforcing ARS section 13-2009(A)(3) and the portion of ARS section 13-2008(A) that addressed the actions committed ‘with the intent to obtain or continue employment’.”

To see thefull text of the Judgement granting injunction:

In this decision the court was not deciding the equal protection issue, but did consider that issue because it was deciding various motions, e.g. motions to dismiss the charges by the defendants and motions by prospective plaintiffs to be a part of the case.  He found the plaintiffs’ allegations plausible, but was not hearing the case in chief, and not, of course, hearing all the evidence that would later be presented.

[On the matter of the equal protection clause of the 14th Amendment of the Constitution, the Plaintiff’s argument might be said to be analogous to an argument that since 96% of murders committed in the inner city are done by black people, laws making murder illegal violate the Equal Protection clause because they will be enforced largely against black people.  The absurdity of such an argument in that context may be used to support the Constitutionality of the Arizona law against stealing identity or creating a fictional one in order to work illegally, even though that crime would usually be committed by illegal aliens.   The Plaingtiff’s argument may be reframed thusly:  Laws against criminal behavior violate the Equal Protection clause because they fail to protect criminals as much as they do those who are innocent.  This is a bizarre case of circular reasoning that will surely fail when the Constitutional issue is tried and appealed. ]

It was the injunction of the court trying only the motion to enjoin that the Sheriff violated, by continuing to enforce the Arizona laws.

When someone violates a court order or refuses to do what a judge says, he or she is said to be holding that court’s order in contempt and is said to be, “in contempt of court”.  

In many cases the court may find that person in “civil contempt” which is defined as follows:  

Civil contempt generally involves the failure to perform an act that is ordered by a court as a means to enforce the rights of individuals or to secure remedies for parties in a civil action.

However this judge found Arpaio guilty of criminal contempt:

Criminal contempt involves behavior that assaults the dignity of the court or impairs the ability of the court to conduct its work. Criminal contempt can occur within a civil or criminal case. For example, criminal contempt occurs when a witness or spectator shouts or insults the judge during a trial. A civil contempt usually is a violation of the rights of one person, whereas a criminal contempt is an offense against society. Courts use civil contempt as a coercive power, wielding it only to ask that the contemnor comply with the courts’ actions. Criminal contempt is punitive; courts use it to punish parties who have impaired the courts’ functioning or bruised their dignity.

Therefore, he was facing jail time until he received a pardon from the president.  A pardon means that he is declared innocent and the crime is not part of his record.  Every president pardons a dozen or two people, many of them on his last day in office, all of them having been convicted of crimes and many of them while serving their sentences.  These pardons are virtually always “political” in nature.

Though pardoned and declared innocent, Sheriff Arpaio was left with hundreds of thousands of dollars of legal fees, for which to this day he seeks contributions from his many supporters.

END