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After SB 1070 Decision, Both Sides Arm For Continued Legal Battle

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Andy Hernandez, carrying a Mexican flag, and Allison Culver, carrying an American flag, argue over SB 1070 outside the State Capitol Building in Phoenix, Ariz.
Andy Hernandez, carrying a Mexican flag, and Allison Culver, carrying an American flag, argue over SB 1070 outside the State Capitol Building in Phoenix, Ariz.

In the hours after the Supreme Court struck down portions of Arizona's SB1070 but left the measure's so called "show me your papers provision" standing, Alessandra Soler, executive director of the American Civil Liberties Union of Arizona, made what amounts to a war room shopping list.

The ACLU needed 15 new phones and the wiring to make each of them work, tables, chairs and hundreds of copies of its SB 1070 civil rights complaint form. By Tuesday, work crews were inside the ACLU's Phoenix offices setting up a phone bank. The ACLU will have a complaint hotline up and running when law enforcement agencies begin to implement what's left of SB1070, Soler said.

While both proponents and opponents of SB 1070 have publicly declared the Supreme Court's decision an unambiguous victory, behind the scenes each side is readying for a prolonged battle of continuing legal questions and disputes. In the quiver of SB 1070's biggest opponents: the Constitution's ban on racial and ethnic profiling by police and unlawful detention of anyone inside the United States. Opponents and several Supreme Court justices have said both are likely to happen as law enforcement officers in Arizona decide who to quiz about immigration status and what to do with these individuals while the truth is ascertained. At the same time, SB 1070 supporters have a weapon of their own: a little-known provision of SB 1070 that gives individual taxpayers the right to sue law enforcement agencies they suspect of failing to rigorously enforce the law.

"We won't hesitate to use the law and make sure that every thing that can be done is being done in Arizona to protect public health and safety," said Tom Fitton, president of Judicial Watch, a Washington, D.C.-based research and advocacy organization that pushes for transparency in government and often advances conservative causes. "Fortunately, SB 1070 includes some nifty options for what I think the law describes for Arizona taxpayers."

Higher-profile Judicial Watch efforts have been aimed at exposing the role of lobbyists like Jack Abramoff in shaping public policy, battling the Bush and Obama administrations for public records and exposing the cost of First Lady Michelle Obama's 2010 trip to Spain. The organization has also warned several states this year that it will sue if efforts are not made to purge dead, disqualified and what Judicial Watch describes as suspect individuals from voter rolls. But, the organization also has what Fitton described as a network of people in Arizona who want to see SB 1070 enforced because the Obama administration and others before it have utterly failed to address the country's immigration crisis.

"We're certainly encouraging people to report what they see," Fitton said, "because we are absolutely prepared to follow through."

In 2010, shortly after Arizona legislators approved SB 1070, the ACLU of Arizona and a group of civil rights organizations filed a suit on behalf of 24 individuals claiming that the law would lead police to engage in ethnic profiling and impinge on a whole range of Constitutional rights guaranteed to anyone inside the United States. They also argued that Arizona did not have the authority to make or enforce immigration policy. The case was put on hold when the Justice Department intervened with a suit that ultimately reached the Supreme Court. That case only asked the court to rule on questions of federal authority over immigration policy.

Now, the ACLU is weighing what to do with its 2010 case, and setting the stage to collect the stories and experiences of people who are quizzed by law enforcement officers about their immigration status. The ACLU is also readying public service announcements in English and Spanish detailing just how SB 1070's remaining provision may be enforced and how to register a complaint in the event of a problem, said Soler, the executive director. The ACLU will also offer training sessions for pastors and priests, clinic workers, community activists and others who are likely to hear from individuals who are asked about their status but may be too afraid or unsure to report police abuse, she said.

"We have a situation in this state where officers responding to a noise complaint or making a traffic stop are now required to determine if they are talking to someone who is in the country illegally," Soler said. "But, what constitutes reasonable suspicion, a legally-justifiable reason to even ask someone about their status? An accent? The color of someone's skin? The ability to speak English? If that's all it is, then we're talking about profiling. And that's against the law. That's not something that we are in any way prepared to ignore."

Brendan Fischer, a law fellow at the Center for Media and Democracy, a Wisconsin-based organization that tracks political spending, influence and origins of public policy, believes that the portions of SB 1070 left standing -- show me your papers combined with the citizen right to sue -- may create more than legal showdowns. More undocumented immigrants may wind up in detention facilities.

"So what you now have in Arizona is a situation where police may identify a growing number of undocumented individuals, create a surge in the population at detention facilities and family members looking for bail bonds," Fischer said, "or face civil suits from individuals if they don't."

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