Arpaio’s Use of Identity-Theft Laws to Target Immigrants Upheld

PHOENIX (CN) – A federal judge ruled Tuesday that the Arizona identity-theft laws used by Maricopa County Sheriff Joe Arpaio as a basis to arrest undocumented immigrants are not a violation of federal law.

The decision comes in a 2014 class action filed by Puente Arizona, a human rights group, claiming Arpaio unconstitutionally used the laws to carry out workplace raids and round up undocumented immigrants.

“Arizona’s effort to single out employment by undocumented workers intrudes upon an area of exclusive federal control,” the lawsuit claimed. “The worker identity provisions interfere and conflict with federal laws established by Congress and implemented by the executive branch regulating immigration and employment, and thus violate the Supremacy Clause. They also discriminate on the basis of alienage in violation of the 14th Amendment of the U.S. Constitution.”

Last month, civil rights attorneys argued in court that the laws were still federally preempted because the Arizona Legislature sought to use them specifically to combat illegal immigration.

“The federal scheme has built-in flexibility,” Puente attorney Anne Lai said during the hearing. “The defendants’ focus is simply on retribution and bringing down the hammer.”

In 2007, House Bill 2779 was implemented to create a new offense of aggravated identity theft for people using false information or the information of another person. House Bill 2745 supplemented the act in 2008, by adding intent to gain employment as part of the offense.

In Tuesday’s ruling, U.S. District Judge David Campbell recognized there may have been a legislative intent to crack down on undocumented immigrants, but that was only an element of a larger problem of identity theft in Arizona.

“(T)he court finds that the Arizona Legislature had more than one purpose in enacting the identity-theft laws,” Campbell wrote. “The laws were passed in part for their effect on immigration by unauthorized aliens, but the Legislature was also addressing a pressing criminal problem that adversely affected Arizona residents.”

The ruling cites statistics from the state’s expert that “identity theft in Arizona is more than twice that of other states and costs Arizona residents between $2.8 and $5.1 billion annually.”

A spokeswoman for the Arizona Attorney General’s Office said it was pleased with Campbell’s decision.

“Identity theft costs Arizonans millions of dollars a year,” Attorney General Mark Brnovich said in a statement. “Arizona can now move forward with prosecuting job-related identity theft crimes to protect Arizonans.”

He added, “The Constitution does not protect someone from stealing another person’s identity. Defending this lawsuit has always been about defending the rule of law.”

Campbell did find in favor of the class on one point, that state attorneys may not use I-9 employment forms to prosecute identify theft violations.

“Defendants are field preempted from using the Form I-9 and accompanying documents for investigations or prosecutions of violations of the Arizona identity theft and forgery statutes,” Campbell wrote. “(T)his includes approximately 10 percent of the employment-related identity theft and forgery cases prosecuted between 2005 and 2015.”

Campbell’s findings are a departure from his January 2015 decision that the two Arizona identity-theft laws used by Arpaio to perform the raids were probably preempted by federal law.

“The Arizona identity theft laws include only a criminal sanction. They make the use of false documents to obtain employment a felony offense punishable by a prison term that may exceed five years,” Campbell wrote in 2015. “Under the federal scheme, federal authorities have a range of options,” including penalties, immigration consequences, or prison terms less than five years.

The Ninth Circuit reversed Campbell’s injunction earlier this year, finding there was no bar against Arizona’s legislation.

“Congress could not have intended to preempt the state from sanctioning crimes that protect citizens of the state under Arizona’s traditional police powers without intruding on federal immigration policy,” Ninth Circuit Judge Richard Tallman found. “Thus, we hold that despite the state legislative history, Congress did not intend to preempt state criminal statutes like the identity theft laws.”

Arpaio said in December 2014 that he would disband his Criminal Employment Unit, which performed investigations and raids based on two Arizona identity theft laws passed in 2007 and 2008.

The ruling comes as a bright point in a tough year for the self-proclaimed “America’s Toughest Sheriff.”

Earlier this month, Arpaio lost his re-election bid to Paul Penzone, a Democrat and former Phoenix Police Department sergeant.

Arpaio also faces a criminal contempt trial stemming from violating court orders in another class action.

Puente Arizona director Carlos Garcia said the group would continue to fight against Arpaio’s legacy.

“We will continue to fight – using all tools at our disposal – to make sure that the rights of our community are protected,” Garcia said in a statement. “The workplace raids began in 2007 and our years-long battle against local politicians’ efforts to tarnish our community has only made us stronger. We will not rest until Arpaio’s legacy has been thoroughly rejected.”