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Tuesday, Jun. 01, 2010 at 2:08 AM
The text of the controversial Arizona law, with comments interspersed. Read it and pass it on. If you're protesting, you owe it to yourself to know the law.
Recently, on John and Ken,
Assemblymember Tony Mendoza was on to discuss SB1070 and some stuff
happening in Costa Mesa, and had his ass torn up and handed back to
him. Dude didn't have his talking points and responses
together. Worse, he hadn't read the law. That's the latest
"thing" the right wing are using - attacking guests who probably
haven't read the law, on the law. This argument is pretty strong
because the immigration laws were written in outer space by angels and
unicorns, and bears little resemblance to reality. It's intricate
like a fucking Dungeon's and Dragons rule book.
So, as a service to allies who
want to discuss this fascist SB1070 law, here's an annotated copy of
the text.
Senate Engrossed
State of Arizona
Senate
Forty-ninth Legislature
Second Regular Session
2010
SENATE BILL 1070
AN ACT
AMENDING TITLE 11, CHAPTER 7, ARIZONA REVISED STATUTES, BY ADDING
ARTICLE 8;
AMENDING TITLE 13, CHAPTER 15, ARIZONA REVISED STATUTES, BY ADDING
SECTION
13-1509; AMENDING SECTION 13-2319, ARIZONA REVISED STATUTES; AMENDING
TITLE
13, CHAPTER 29, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 13-2928 AND
13-2929; AMENDING SECTIONS 23-212, 23-212.01, 23-214 AND 28-3511,
ARIZONA
REVISED STATUTES; AMENDING TITLE 41, CHAPTER 12, ARTICLE 2, ARIZONA
REVISED
STATUTES, BY ADDING SECTION 41-1724; RELATING TO UNLAWFULLY PRESENT
ALIENS.
(TEXT OF BILL BEGINS ON NEXT PAGE)
- i -
S.B. 1070
1 Be it enacted by the Legislature of the State of Arizona:
2 Section 1. Intent
3 The legislature finds that
there is a compelling interest in the
4 cooperative enforcement of federal immigration laws throughout
all of
5 Arizona. The legislature declares that the intent of this act
is to make
6 attrition through enforcement the public policy of all state
and local
7 government agencies in Arizona. The provisions of this act are
intended to
8 work together to discourage and deter the unlawful entry and
presence of
9 aliens and economic activity by persons unlawfully present in
the United
10 States.
11 Sec. 2. Title 11, chapter 7,
Arizona Revised Statutes, is amended by
12 adding article 8, to read:
13
ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS
14 11-1051.
Cooperation and assistance
in enforcement of
15
immigration laws; indemnification
16 A. NO OFFICIAL OR AGENCY OF THIS
STATE OR A COUNTY, CITY, TOWN OR
17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT
LIMITS OR
18 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN
THE FULL
19 EXTENT PERMITTED BY FEDERAL LAW.
This is an attack on states rights
to expand liberty. If it's deemed constitutional, then it makes
it difficult for a state to pass a law legalizing anything (i.e. pot,
cash and carry, etc.)
20 B. FOR ANY LAWFUL CONTACT MADE
BY A LAW ENFORCEMENT OFFICIAL OR AGENCY
21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION
OF THIS
22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN
WHO IS
23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL
BE MADE,
24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.
THE
25 PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL
GOVERNMENT
26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
This mandates that all police ask
people for immigration status.
27 C. IF AN ALIEN WHO IS UNLAWFULLY
PRESENT IN THE UNITED STATES IS
28 CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM
29 IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN
SHALL BE
30 TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES
IMMIGRATION AND
31 CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER
PROTECTION.
This should change nothing - local
agencies should be turning over people to ICE on release.
32 D. NOTWITHSTANDING ANY OTHER
LAW, A LAW ENFORCEMENT AGENCY MAY
33 SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED
STATES
34 AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS
STATE OR TO
35 ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE
36 JURISDICTION OF THE LAW ENFORCEMENT AGENCY.
37 E. A LAW ENFORCEMENT OFFICER,
WITHOUT A WARRANT, MAY ARREST A PERSON
38 IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS
COMMITTED
39 ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED
STATES.
This is slippery. If even
being in the US is considered a public offense, then this allows all
kinds of warrentless arrests.
40 F. EXCEPT AS PROVIDED IN FEDERAL
LAW, OFFICIALS OR AGENCIES OF THIS
41 STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS
OF THIS
42 STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING,
43 RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION
STATUS OF
44 ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER
FEDERAL, STATE
45 OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:
This is ripping a hole in the
ability of government agencies to maintain someone's privacy.
Schools could be used to identify potentially undocumented
parents. It'll be like Facebook took away all their privacy
rules, and handed over everything to the government and their
advertisers.
-1-
S.B. 1070
1 1. DETERMINING
ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE
2 PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL
SUBDIVISION OF THIS
3 STATE.
4 2. VERIFYING ANY
CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF
5 RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE
OR A JUDICIAL
6 ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS
STATE.
7 3. CONFIRMING THE
IDENTITY OF ANY PERSON WHO IS DETAINED.
8 4. IF THE PERSON IS
AN ALIEN, DETERMINING WHETHER THE PERSON IS IN
9 COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE
II, CHAPTER
10 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT. [linked it for u]
That's the "papers" part.
There's a lot of Dungeons and Dragons fantasy at that link.
11 G. A PERSON MAY BRING AN
ACTION IN SUPERIOR COURT TO CHALLENGE ANY
12 OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER
POLITICAL
13 SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT
LIMITS OR
14 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN
THE FULL
15 EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT
AN
16 ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE
FOLLOWING:
Oh yeah, attack states rights
again. The willingness of the nativists to switch position on
that issue just proves that they don't give a shit about states
rights. It's all racial.
17 1. THAT THE PERSON WHO
BROUGHT THE ACTION RECOVER COURT COSTS AND
18 ATTORNEY FEES.
19 2. THAT THE ENTITY PAY A
CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND
20 DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT
THE POLICY
21 HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS
22 SUBSECTION.
23 H. A COURT SHALL COLLECT
THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G
24 AND REMIT THE CIVIL PENALTY TO THE DEPARTMENT OF PUBLIC SAFETY FOR
DEPOSIT IN
25 THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND
26 ESTABLISHED BY SECTION 41-1724.
27 I. A LAW ENFORCEMENT
OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT
28 OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING
ATTORNEY
29 FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR
30 PROCEEDING BROUGHT PURSUANT TO THIS SECTION TO WHICH THE OFFICER MAY
BE A
31 PARTY BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE
LAW
32 ENFORCEMENT AGENCY, EXCEPT IN RELATION TO MATTERS IN WHICH THE
OFFICER IS
33 ADJUDGED TO HAVE ACTED IN BAD FAITH.
34 J. THIS SECTION SHALL BE
IMPLEMENTED IN A MANNER CONSISTENT WITH
35 FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF
ALL
36 PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES
37 CITIZENS.
This is the clause that gives the
right wing deniability. "It's not racist" they say. What a
lie!
38 Sec. 3. Title 13, chapter
15, Arizona Revised Statutes, is amended by
39 adding section 13-1509, to read:
40 13-1509. Trespassing by
illegal aliens; assessment; exception;
41
classification
42 A. IN ADDITION TO ANY
VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF
43 TRESPASSING IF THE PERSON IS BOTH:
Hold on there. It defines
the presence of these people as trespassing. Look up trespassing.
44 1. PRESENT ON ANY PUBLIC
OR PRIVATE LAND IN THIS STATE.
And they change the definition of
trespassing on private land. On private land, it's a civil, not
criminal issue.
45 2. IN VIOLATION OF 8 UNITED STATES CODE
SECTION 1304(e) OR 1306(a).
- 2 -
S.B. 1070
1 B. IN THE ENFORCEMENT OF
THIS SECTION, THE FINAL DETERMINATION OF AN
2 ALIEN'S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
3 1. A LAW ENFORCEMENT
OFFICER WHO IS AUTHORIZED BY THE FEDERAL
4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS.
5 2. A LAW ENFORCEMENT
OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES
BORDER
7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
8 C. A PERSON WHO IS
SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE
9 FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY
BASIS UNTIL THE
10 SENTENCE IMPOSED IS SERVED.
Ow! So a sentence can't be
altered. It makes every sentence a mandatory minimum. I
guess there's going to be no contention about that issue, but mandatory
sentencing is wrong. Judges should have more say in sentencing in
general. But that's a side issue.
11 D. IN ADDITION TO ANY OTHER
PENALTY PRESCRIBED BY LAW, THE COURT SHALL
12 ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN
THE
13 FOLLOWING AMOUNTS:
Hold on there - the prisoner has
to pay jail costs? That's like a second sentence on top of the
first. Presumably, they're going to be deported - but a prison
debt follows them back to wherever they came from? That's unjust.
14 1. AT LEAST FIVE HUNDRED DOLLARS
FOR A FIRST VIOLATION.
15 2. TWICE THE AMOUNT SPECIFIED IN
PARAGRAPH 1 OF THIS SUBSECTION IF THE
16 PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS
SUBSECTION.
17 E. A COURT SHALL COLLECT THE
ASSESSMENTS PRESCRIBED IN SUBSECTION D OF
18 THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC
SAFETY,
19 WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE
ACCOUNT
20 ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM
ENFORCEMENT
21 MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT
ARE SUBJECT TO
22 LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION
23 ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO
ILLEGAL
24 IMMIGRATION.
I have to say that this part is
pretty clever. So far, twice, they take any fines or awards, and
instead of putting them into the general fund, they funnel the money
into the "gang and immigration intelligence team". That'll turn
into some kind of welfare program for Klan members.
25 F. THIS SECTION DOES NOT APPLY
TO A PERSON WHO MAINTAINS AUTHORIZATION
26 FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.
27 G. A VIOLATION OF THIS SECTION
IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A
28 VIOLATION OF THIS SECTION IS:
29 1. A CLASS 3 FELONY IF THE
PERSON VIOLATES THIS SECTION WHILE IN
30 POSSESSION OF ANY OF THE FOLLOWING:
31 (a) A DANGEROUS DRUG AS DEFINED
IN SECTION 13-3401.
32 (b) PRECURSOR CHEMICALS THAT ARE
USED IN THE MANUFACTURING OF
33 METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.
Hold on there. A Sudafed
could be considered a precursor.
34 (c) A DEADLY WEAPON OR A
DANGEROUS INSTRUMENT, AS DEFINED IN SECTION
35 13-105.
That section is general. It
could include knives or even a gardening tool like a machete.
36 (d) PROPERTY THAT IS USED FOR
THE PURPOSE OF COMMITTING AN ACT OF
37 TERRORISM AS PRESCRIBED IN SECTION
13-2308.01.
They just had to put that
"terrorism" fear bit in the law. It's part of the rhetoric that
has no basis in reality. Lunatics wrote this law.
38 2. A CLASS 4 FELONY IF THE
PERSON EITHER:
39 (a) IS CONVICTED OF A SECOND OR
SUBSEQUENT VIOLATION OF THIS SECTION.
40 (b) WITHIN SIXTY MONTHS BEFORE
THE VIOLATION, HAS BEEN REMOVED FROM
41 THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229a OR
HAS
42 ACCEPTED A VOLUNTARY REMOVAL FROM THE UNITED STATES PURSUANT TO 8
UNITED
43 STATES CODE SECTION 1229c.
- 3 -
S.B. 1070
1 Sec. 4. Section 13-2319,
Arizona Revised Statutes, is amended to read:
2 13-2319. Smuggling;
classification; definitions
3 A. It is unlawful for a
person to intentionally engage in the
4 smuggling of human beings for profit or commercial purpose.
5 B. A violation of this
section is a class 4 felony.
6 C. Notwithstanding
subsection B of this section, a violation of this
7 section:
8 1. Is a class 2 felony if
the human being who is smuggled is under
9 eighteen years of age and is not accompanied by a family member
over eighteen
10 years of age or the offense involved the use of a deadly weapon or
dangerous
11 instrument.
12 2. Is a class 3 felony if the
offense involves the use or threatened
13 use of deadly physical force and the person is not eligible for
suspension of
14 sentence, probation, pardon or release from confinement on any other
basis
15 except pursuant to section 31-233, subsection A or B until the
sentence
16 imposed by the court is served, the person is eligible for release
pursuant
17 to section 41-1604.07 or the sentence is commuted.
18 D. Chapter 10 of this title does
not apply to a violation of
19 subsection C, paragraph 1 of this section.
20 E. NOTWITHSTANDING ANY OTHER
LAW, A PEACE OFFICER MAY LAWFULLY STOP
21 ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS
REASONABLE
22 SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC
LAW AND
23 THIS SECTION.
Note to self - do not drive a
loaded truck, or with over 100 pounds of stuff in the trunk. This
law says not only can you be pulled over - it implies that you must be
pulled over.
24 E. F. For the purposes of this
section:
25 1. "Family member" means the
person's parent, grandparent, sibling or
26 any other person who is related to the person by consanguinity or
affinity to
27 the second degree.
28 2. "Procurement of
transportation" means any participation in or
29 facilitation of transportation and includes:
30 (a) Providing services that
facilitate transportation including travel
31 arrangement services or money transmission services.
32 (b) Providing property that
facilitates transportation, including a
33 weapon, a vehicle or other means of transportation or false
identification,
34 or selling, leasing, renting or otherwise making available a drop
house as
35 defined in section 13-2322.
36 3. "Smuggling of human beings"
means the transportation, procurement
37 of transportation or use of property or real property by a person or
an
38 entity that knows or has reason to know that the person or persons
39 transported or to be transported are not United States citizens,
permanent
40 resident aliens or persons otherwise lawfully in this state or have
attempted
41 to enter, entered or remained in the United States in violation of
law.
- 4 -
S.B. 1070
1 Sec. 5. Title 13, chapter
29, Arizona Revised Statutes, is amended by
2 adding sections 13-2928 and 13-2929, to read:
3 13-2928. Unlawful stopping
to hire and pick up passengers for
4
work; unlawful application,
solicitation or
5
employment; classification; definitions
Below, we get a bunch of day
laborer laws. These violate our rights to gather and seek work in
public. That's generally considered a fundamental right.
6 A. IT IS UNLAWFUL FOR AN
OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED
7 ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND
PICK UP
8 PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR
VEHICLE BLOCKS OR
9 IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
10 B. IT IS UNLAWFUL FOR A PERSON
TO ENTER A MOTOR VEHICLE THAT IS
11 STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN
OCCUPANT
12 OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT
LOCATION IF
13 THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.
14 C. IT IS UNLAWFUL FOR A PERSON
WHO IS UNLAWFULLY PRESENT IN THE UNITED
15 STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK,
SOLICIT
16 WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT
17 CONTRACTOR IN THIS STATE.
18 D. A VIOLATION OF THIS SECTION
IS A CLASS 1 MISDEMEANOR.
Raises the violation to a
misdemeanor.
19 E. FOR THE PURPOSES OF THIS
SECTION:
20 1. "SOLICIT" MEANS VERBAL OR
NONVERBAL COMMUNICATION BY A GESTURE OR A
21 NOD THAT WOULD INDICATE TO A REASONABLE PERSON THAT A PERSON IS
WILLING TO BE
22 EMPLOYED.
23 2. "UNAUTHORIZED ALIEN" MEANS AN
ALIEN WHO DOES NOT HAVE THE LEGAL
24 RIGHT OR AUTHORIZATION UNDER FEDERAL LAW TO WORK IN THE UNITED
STATES AS
25 DESCRIBED IN 8 UNITED STATES CODE SECTION 1324a(h)(3).
26 13-2929. Unlawful transporting,
moving, concealing, harboring
27
or shielding of
unlawful aliens; vehicle
28
impoundment; classification
29 A. IT IS UNLAWFUL FOR A PERSON
WHO IS IN VIOLATION OF A CRIMINAL
30 OFFENSE TO:
31 1. TRANSPORT OR MOVE OR ATTEMPT
TO TRANSPORT OR MOVE AN ALIEN IN THIS
32 STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY
33 DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR
REMAINS IN THE
34 UNITED STATES IN VIOLATION OF LAW.
What does "disregards" mean?
Suppose I have a foreigner in my car. Do I have to ask for
papers? Is that now my responsibility? What kind of
mind-police bullshit is this?
35 2. CONCEAL, HARBOR OR SHIELD OR
ATTEMPT TO CONCEAL, HARBOR OR SHIELD
36 AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY
BUILDING OR
37 ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY
DISREGARDS THE
38 FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE
UNITED STATES
39 IN VIOLATION OF LAW.
My building too? So are
schools and hospitals going to get busted for this. Will school
boards and hopital boards get fined and imprisoned? Are landlords
going to get busted?
Because if landlords are going to get busted, it means anyone who looks
"alien" is going to have a hard time renting an apartment.
40 3. ENCOURAGE OR INDUCE AN ALIEN
TO COME TO OR RESIDE IN THIS STATE IF
41 THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING
TO,
42 ENTERING OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.
43 B. A MEANS OF TRANSPORTATION
THAT IS USED IN THE COMMISSION OF A
44 VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE
IMMOBILIZATION OR
45 IMPOUNDMENT PURSUANT TO SECTION 28-3511.
Ouch. So if there's even
some suspicion, my car can get impounded. I hope those impound
fees, which I am sure will be over 0, don't end up going to that
"gang and immigration" spy ring the state's running.
- 5 -
S.B. 1070
1 C. A PERSON WHO VIOLATES
THIS SECTION IS GUILTY OF A CLASS 1
2 MISDEMEANOR AND IS SUBJECT TO A FINE OF AT LEAST ONE THOUSAND
DOLLARS, EXCEPT
3 THAT A VIOLATION OF THIS SECTION THAT INVOLVES TEN OR MORE
ILLEGAL ALIENS IS
4 A CLASS 6 FELONY AND THE PERSON IS SUBJECT TO A FINE OF AT
LEAST ONE THOUSAND
5 DOLLARS FOR EACH ALIEN WHO IS INVOLVED.
Well, that doesn't affect me at
all, but I imagine it affects those landlords/
6 Sec. 6. Section 23-212,
Arizona Revised Statutes, is amended to read:
7 23-212. Knowingly employing
unauthorized aliens; prohibition;
8
false and frivolous
complaints; violation;
9
classification; license suspension and revocation;
10
affirmative defense
11 A. An employer shall not
knowingly employ an unauthorized alien. If,
12 in the case when an employer uses a contract, subcontract or other
13 independent contractor agreement to obtain the labor of an alien in
this
14 state, the employer knowingly contracts with an unauthorized alien
or with a
15 person who employs or contracts with an unauthorized alien to
perform the
16 labor, the employer violates this subsection.
17 B. The attorney general shall
prescribe a complaint form for a person
18 to allege a violation of subsection A of this section. The
complainant shall
19 not be required to list the complainant's social security number on
the
20 complaint form or to have the complaint form notarized. On receipt
of a
21 complaint on a prescribed complaint form that an employer allegedly
knowingly
22 employs an unauthorized alien, the attorney general or county
attorney shall
23 investigate whether the employer has violated subsection A of this
section.
24 If a complaint is received but is not submitted on a prescribed
complaint
25 form, the attorney general or county attorney may investigate
whether the
26 employer has violated subsection A of this section. This subsection
shall
27 not be construed to prohibit the filing of anonymous complaints that
are not
28 submitted on a prescribed complaint form. The attorney general or
county
29 attorney shall not investigate complaints that are based solely on
race,
30 color or national origin.
Ahh, another protection against
racism. So, they won't investigate claims based soley on race,
color or national origin... but what about language, friends, type of
work, way of seeking work, condition of car, radio station someone's
listening to, or any other markers of "being illegal?"
A complaint that is submitted to a county attorney
31 shall be submitted to the county attorney in the county in which the
alleged
32 unauthorized alien is or was employed by the employer. The county
sheriff or
33 any other local law enforcement agency may assist in investigating a
34 complaint. When investigating a complaint, the attorney general or
county
35 attorney shall verify the work authorization of the alleged
unauthorized
36 alien with the federal government pursuant to 8 United States Code
section
37 1373(c). A state, county or local official shall not attempt to
38 independently make a final determination on whether an alien is
authorized to
39 work in the United States. An alien's immigration status or work
40 authorization status shall be verified with the federal government
pursuant
41 to 8 United States Code section 1373(c). A person who knowingly
files a
42 false and frivolous complaint under this subsection is guilty of a
class 3
43 misdemeanor.
What? A bit of sanity in the
madness.
- 6 -
S.B. 1070
1 C. If, after an
investigation, the attorney general or county attorney
2 determines that the complaint is not false and frivolous:
3 1. The attorney general or
county attorney shall notify the United
4 States immigration and customs enforcement of the unauthorized
alien.
5 2. The attorney general or
county attorney shall notify the local law
6 enforcement agency of the unauthorized alien.
7 3. The attorney general
shall notify the appropriate county attorney
8 to bring an action pursuant to subsection D of this section if
the complaint
9 was originally filed with the attorney general.
10 D. An action for a violation of
subsection A of this section shall be
11 brought against the employer by the county attorney in the county
where the
12 unauthorized alien employee is or was employed by the employer. The
county
13 attorney shall not bring an action against any employer for any
violation of
14 subsection A of this section that occurs before January 1, 2008. A
second
15 violation of this section shall be based only on an unauthorized
alien who is
16 or was employed by the employer after an action has been brought for
a
17 violation of subsection A of this section or section 23-212.01,
subsection A.
18 E. For any action in superior
court under this section, the court
19 shall expedite the action, including assigning the hearing at the
earliest
20 practicable date.
21 F. On a finding of a violation
of subsection A of this section:
22 1. For a first violation, as
described in paragraph 3 of this
23 subsection, the court:
24 (a) Shall order the employer to
terminate the employment of all
25 unauthorized aliens.
26 (b) Shall order the employer to
be subject to a three year
27 probationary period for the business location where the unauthorized
alien
28 performed work. During the probationary period the
employer shall file
29 quarterly reports in the form provided in section 23-722.01 with the
county
30 attorney of each new employee who is hired by the employer at the
business
31 location where the unauthorized alien performed work.
Just a technical point here - it
could be confusing because some undocumented workers are employed by
subcontractors who do janitorial or "temp" work. The workers
perform work in multiple locations. Because they lack a fixed
work-site, the company can quickly fold, and then re-emerge as a
different company and re-hire everyone. See, this law was written
by unicorns from outer space.
32 (c) Shall order the employer to
file a signed sworn affidavit with the
33 county attorney within three business days after the order is
issued. The
34 affidavit shall state that the employer has terminated the
employment of all
35 unauthorized aliens in this state and that the employer will not
36 intentionally or knowingly employ an unauthorized alien in this
state. The
37 court shall order the appropriate agencies to suspend all licenses
subject to
38 this subdivision that are held by the employer if the employer fails
to file
39 a signed sworn affidavit with the county attorney within three
business days
40 after the order is issued. All licenses that are suspended under this
41 subdivision shall remain suspended until the employer files a signed
sworn
42 affidavit with the county attorney. Notwithstanding any other law,
on filing
43 of the affidavit the suspended licenses shall be reinstated
immediately by
44 the appropriate agencies. For the purposes of this subdivision, the
licenses
45 that are subject to suspension under this subdivision are all
licenses that
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S.B. 1070
1 are held by the employer specific to the business location
where the
2 unauthorized alien performed work. If the employer does not
hold a license
3 specific to the business location where the unauthorized alien
performed
4 work, but a license is necessary to operate the employer's
business in
5 general, the licenses that are subject to suspension under this
subdivision
6 are all licenses that are held by the employer at the
employer's primary
7 place of business. On receipt of the court's order and
notwithstanding any
8 other law, the appropriate agencies shall suspend the licenses
according to
9 the court's order. The court shall send a copy of the court's
order to the
10 attorney general and the attorney general shall maintain the copy
pursuant to
11 subsection G of this section.
12 (d) May order the appropriate
agencies to suspend all licenses
13 described in subdivision (c) of this paragraph that are held by the
employer
14 for not to exceed ten business days. The court shall base its
decision to
15 suspend under this subdivision on any evidence or information
submitted to it
16 during the action for a violation of this subsection and shall
consider the
17 following factors, if relevant:
18 (i) The number of unauthorized
aliens employed by the employer.
19 (ii) Any prior misconduct by the
employer.
20 (iii) The degree of harm
resulting from the violation.
21 (iv) Whether the employer made
good faith efforts to comply with any
22 applicable requirements.
23 (v) The duration of the
violation.
24 (vi) The role of the directors,
officers or principals of the employer
25 in the violation.
26 (vii) Any other factors the
court deems appropriate.
27 2. For a second violation, as
described in paragraph 3 of this
28 subsection, the court shall order the appropriate agencies to
permanently
29 revoke all licenses that are held by the employer specific to the
business
30 location where the unauthorized alien performed work. If the
employer does
31 not hold a license specific to the business location where the
unauthorized
32 alien performed work, but a license is necessary to operate the
employer's
33 business in general, the court shall order the appropriate agencies
to
34 permanently revoke all licenses that are held by the employer at the
35 employer's primary place of business. On receipt of the order and
36 notwithstanding any other law, the appropriate agencies shall
immediately
37 revoke the licenses.
38 3. The violation shall be
considered:
39 (a) A first violation by an
employer at a business location if the
40 violation did not occur during a probationary period ordered by the
court
41 under this subsection or section 23-212.01, subsection F for that
employer's
42 business location.
43 (b) A second violation by an
employer at a business location if the
44 violation occurred during a probationary period ordered by the court
under
- 8 -
S.B. 1070
1 this subsection or section 23-212.01, subsection F for that
employer's
2 business location.
3 G. The attorney general
shall maintain copies of court orders that are
4 received pursuant to subsection F of this section and shall
maintain a
5 database of the employers and business locations that have a
first violation
6 of subsection A of this section and make the court orders
available on the
7 attorney general's website.
8 H. On determining whether
an employee is an unauthorized alien, the
9 court shall consider only the federal government's
determination pursuant to
10 8 United States Code section 1373(c). The federal government's
determination
11 creates a rebuttable presumption of the employee's lawful status.
The court
12 may take judicial notice of the federal government's determination
and may
13 request the federal government to provide automated or testimonial
14 verification pursuant to 8 United States Code section 1373(c).
15 I. For the purposes of this
section, proof of verifying the employment
16 authorization of an employee through the e-verify program creates a
17 rebuttable presumption that an employer did not knowingly employ an
18 unauthorized alien.
19 J. For the purposes of this
section, an employer that establishes that
20 it has complied in good faith with the requirements of 8 United
States Code
21 section 1324a(b) establishes an affirmative defense that the
employer did not
22 knowingly employ an unauthorized alien. An employer is considered to
have
23 complied with the requirements of 8 United States Code section
1324a(b),
24 notwithstanding an isolated, sporadic or accidental technical or
procedural
25 failure to meet the requirements, if there is a good faith attempt
to comply
26 with the requirements.
27 K. IT IS AN AFFIRMATIVE DEFENSE
TO A VIOLATION OF SUBSECTION A OF THIS
28 SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE
EMPLOYER
29 MUST ADMIT BY THE EMPLOYER'S TESTIMONY OR OTHER EVIDENCE THE
SUBSTANTIAL
30 ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT
DEFENSE HAS
31 THE BURDEN OF PROVING THE FOLLOWING BY CLEAR AND CONVINCING EVIDENCE:
32 1. THE IDEA OF COMMITTING THE
VIOLATION STARTED WITH LAW ENFORCEMENT
33 OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.
34 2. THE LAW ENFORCEMENT OFFICERS
OR THEIR AGENTS URGED AND INDUCED THE
35 EMPLOYER TO COMMIT THE VIOLATION.
36 3. THE EMPLOYER WAS NOT
PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE
37 LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE
EMPLOYER TO
38 COMMIT THE VIOLATION.
39 L. AN EMPLOYER DOES NOT
ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS
40 PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW
ENFORCEMENT
41 OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN
OPPORTUNITY TO
42 COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT
OFFICERS OR
43 THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE
CONDUCT
44 OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN
DETERMINING
45 IF AN EMPLOYER HAS PROVEN ENTRAPMENT.
I didn't know police would try to
get somene to hire anyone, whatever their status.
- 9 -
S.B. 1070
1 Sec. 7. Section
23-212.01, Arizona Revised Statutes, is amended to
2 read:
3 23-212.01.
Intentionally employing
unauthorized aliens;
4
prohibition; false and frivolous complaints;
5
violation; classification; license suspension and
6
revocation; affirmative defense
7 A. An employer shall not
intentionally employ an unauthorized alien.
8 If, in the case when an employer uses a contract, subcontract
or other
9 independent contractor agreement to obtain the labor of an
alien in this
10 state, the employer intentionally contracts with an unauthorized
alien or
11 with a person who employs or contracts with an unauthorized alien to
perform
12 the labor, the employer violates this subsection.
13 B. The attorney general shall
prescribe a complaint form for a person
14 to allege a violation of subsection A of this section. The
complainant shall
15 not be required to list the complainant's social security number on
the
16 complaint form or to have the complaint form notarized. On receipt
of a
17 complaint on a prescribed complaint form that an employer allegedly
18 intentionally employs an unauthorized alien, the attorney general or
county
19 attorney shall investigate whether the employer has violated
subsection A of
20 this section. If a complaint is received but is not submitted on a
21 prescribed complaint form, the attorney general or county attorney
may
22 investigate whether the employer has violated subsection A of this
section.
23 This subsection shall not be construed to prohibit the filing of
anonymous
24 complaints that are not submitted on a prescribed complaint
form. The
25 attorney general or county attorney shall not investigate complaints
that are
26 based solely on race, color or national origin. A complaint that is
27 submitted to a county attorney shall be submitted to the county
attorney in
28 the county in which the alleged unauthorized alien is or was
employed by the
29 employer. The county sheriff or any other local law enforcement
agency may
30 assist in investigating a complaint. When investigating a complaint,
the
31 attorney general or county attorney shall verify the work
authorization of
32 the alleged unauthorized alien with the federal government pursuant
to
33 8 United States Code section 1373(c). A state, county or local
official
34 shall not attempt to independently make a final determination on
whether an
35 alien is authorized to work in the United States. An alien's
immigration
36 status or work authorization status shall be verified with the
federal
37 government pursuant to 8 United States Code section 1373(c). A
person who
38 knowingly files a false and frivolous complaint under this
subsection is
39 guilty of a class 3 misdemeanor.
40 C. If, after an investigation,
the attorney general or county attorney
41 determines that the complaint is not false and frivolous:
42 1. The attorney general or
county attorney shall notify the United
43 States immigration and customs enforcement of the unauthorized alien.
44 2. The attorney general or
county attorney shall notify the local law
45 enforcement agency of the unauthorized alien.
- 10 -
S.B. 1070
1 3. The attorney
general shall notify the appropriate county attorney
2 to bring an action pursuant to subsection D of this section if
the complaint
3 was originally filed with the attorney general.
4 D. An action for a
violation of subsection A of this section shall be
5 brought against the employer by the county attorney in the
county where the
6 unauthorized alien employee is or was employed by the employer.
The county
7 attorney shall not bring an action against any employer for any
violation of
8 subsection A of this section that occurs before January 1,
2008. A second
9 violation of this section shall be based only on an
unauthorized alien who is
10 or was employed by the employer after an action has been brought for
a
11 violation of subsection A of this section or section 23-212,
subsection A.
12 E. For any action in
superior court under this section, the court
13 shall expedite the action, including assigning the hearing at the
earliest
14 practicable date.
15 F. On a finding of a
violation of subsection A of this section:
16 1. For a first violation,
as described in paragraph 3 of this
17 subsection, the court shall:
18 (a) Order the employer to
terminate the employment of all unauthorized
19 aliens.
20 (b) Order the employer to
be subject to a five year probationary
21 period for the business location where the unauthorized alien
performed work.
22 During the probationary period the employer shall file quarterly
reports in
23 the form provided in section 23-722.01 with the county attorney of
each new
24 employee who is hired by the employer at the business location where
the
25 unauthorized alien performed work.
26 (c) Order the appropriate
agencies to suspend all licenses described
27 in subdivision (d) of this paragraph that are held by the employer
for a
28 minimum of ten days. The court shall base its decision on the length
of the
29 suspension under this subdivision on any evidence or information
submitted to
30 it during the action for a violation of this subsection and shall
consider
31 the following factors, if relevant:
32 (i) The number of
unauthorized aliens employed by the employer.
33 (ii) Any prior misconduct
by the employer.
34 (iii) The degree of harm
resulting from the violation.
35 (iv) Whether the employer
made good faith efforts to comply with any
36 applicable requirements.
37 (v) The duration of the
violation.
38 (vi) The role of the
directors, officers or principals of the employer
39 in the violation.
40 (vii) Any other factors
the court deems appropriate.
41 (d) Order the employer to
file a signed sworn affidavit with the
42 county attorney. The affidavit shall state that the employer has
terminated
43 the employment of all unauthorized aliens in this state and that the
employer
44 will not intentionally or knowingly employ an unauthorized alien in
this
45 state. The court shall order the appropriate
agencies to suspend all
- 11 -
S.B. 1070
1 licenses subject to this subdivision that are held by the
employer if the
2 employer fails to file a signed sworn affidavit with the county
attorney
3 within three business days after the order is issued. All
licenses that are
4 suspended under this subdivision for failing to file a signed
sworn affidavit
5 shall remain suspended until the employer files a signed sworn
affidavit with
6 the county attorney. For the purposes of this subdivision, the
licenses that
7 are subject to suspension under this subdivision are all
licenses that are
8 held by the employer specific to the business location where
the unauthorized
9 alien performed work. If the employer does not hold a license
specific to
10 the business location where the unauthorized alien performed work,
but a
11 license is necessary to operate the employer's business in general,
the
12 licenses that are subject to suspension under this subdivision are
all
13 licenses that are held by the employer at the employer's primary
place of
14 business. On receipt of the court's order and notwithstanding any
other law,
15 the appropriate agencies shall suspend the licenses according to the
court's
16 order. The court shall send a copy of the court's order to the
attorney
17 general and the attorney general shall maintain the copy pursuant to
18 subsection G of this section.
19 2. For a second violation, as
described in paragraph 3 of this
20 subsection, the court shall order the appropriate agencies to
permanently
21 revoke all licenses that are held by the employer specific to the
business
22 location where the unauthorized alien performed work. If the
employer does
23 not hold a license specific to the business location where the
unauthorized
24 alien performed work, but a license is necessary to operate the
employer's
25 business in general, the court shall order the appropriate agencies
to
26 permanently revoke all licenses that are held by the employer at the
27 employer's primary place of business. On receipt of the order and
28 notwithstanding any other law, the appropriate agencies shall
immediately
29 revoke the licenses.
30 3. The violation shall be
considered:
31 (a) A first violation by an
employer at a business location if the
32 violation did not occur during a probationary period ordered by the
court
33 under this subsection or section 23-212, subsection F for that
employer's
34 business location.
35 (b) A second violation by an
employer at a business location if the
36 violation occurred during a probationary period ordered by the court
under
37 this subsection or section 23-212, subsection F for that employer's
business
38 location.
39 G. The attorney general shall
maintain copies of court orders that are
40 received pursuant to subsection F of this section and shall maintain
a
41 database of the employers and business locations that have a first
violation
42 of subsection A of this section and make the court orders available
on the
43 attorney general's website.
44 H. On determining whether an
employee is an unauthorized alien, the
45 court shall consider only the federal government's determination
pursuant to
- 12 -
S.B. 1070
1 8 United States Code section 1373(c). The federal government's
determination
2 creates a rebuttable presumption of the employee's lawful
status. The court
3 may take judicial notice of the federal government's
determination and may
4 request the federal government to provide automated or
testimonial
5 verification pursuant to 8 United States Code section 1373(c).
6 I. For the purposes of this
section, proof of verifying the employment
7 authorization of an employee through the e-verify program
creates a
8 rebuttable presumption that an employer did not intentionally
employ an
9 unauthorized alien.
10 J. For the purposes of this
section, an employer that establishes that
11 it has complied in good faith with the requirements of 8 United
States Code
12 section 1324a(b) establishes an affirmative defense that the
employer did not
13 intentionally employ an unauthorized alien. An employer is
considered to
14 have complied with the requirements of 8 United States Code section
1324a(b),
15 notwithstanding an isolated, sporadic or accidental technical or
procedural
16 failure to meet the requirements, if there is a good faith attempt
to comply
17 with the requirements.
18 K. IT IS AN AFFIRMATIVE DEFENSE
TO A VIOLATION OF SUBSECTION A OF THIS
19 SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE
EMPLOYER
20 MUST ADMIT BY THE EMPLOYER'S TESTIMONY OR OTHER EVIDENCE THE
SUBSTANTIAL
21 ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT
DEFENSE HAS
22 THE BURDEN OF PROVING THE FOLLOWING BY CLEAR AND CONVINCING EVIDENCE:
23 1. THE IDEA OF COMMITTING THE
VIOLATION STARTED WITH LAW ENFORCEMENT
24 OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.
25 2. THE LAW ENFORCEMENT OFFICERS
OR THEIR AGENTS URGED AND INDUCED THE
26 EMPLOYER TO COMMIT THE VIOLATION.
27 3. THE EMPLOYER WAS NOT
PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE
28 LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE
EMPLOYER TO
29 COMMIT THE VIOLATION.
30 L. AN EMPLOYER DOES NOT
ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS
31 PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW
ENFORCEMENT
32 OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN
OPPORTUNITY TO
33 COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT
OFFICERS OR
34 THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE
CONDUCT
35 OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN
DETERMINING
36 IF AN EMPLOYER HAS PROVEN ENTRAPMENT.
I'm kind of lost here - why was
this section repeated?
37 Sec. 8. Section 23-214, Arizona
Revised Statutes, is amended to read:
38 23-214. Verification of
employment eligibility; e-verify
39
program; economic development incentives; list of
40
registered employers
41 A. After December 31, 2007,
every employer, after hiring an employee,
42 shall verify the employment eligibility of the employee through the
e-verify
43 program AND SHALL KEEP A RECORD OF THE VERIFICATION FOR THE DURATION
OF THE
44 EMPLOYEE'S EMPLOYMENT OR AT LEAST THREE YEARS, WHICHEVER IS LONGER.
Wonder if this is
retroactive. So if you hired someone in 2008, are you
culpable if you don't keep the records until 2011?
- 13 -
S.B. 1070
1 B. In addition to any other
requirement for an employer to receive an
2 economic development incentive from a government entity, the
employer shall
3 register with and participate in the e-verify program. Before
receiving the
4 economic development incentive, the employer shall provide
proof to the
5 government entity that the employer is registered with and is
participating
6 in the e-verify program. If the government entity determines
that the
7 employer is not complying with this subsection, the government
entity shall
8 notify the employer by certified mail of the government entity's
9 determination of noncompliance and the employer's right to
appeal the
10 determination. On a final determination of noncompliance, the
employer shall
11 repay all monies received as an economic development incentive to the
12 government entity within thirty days of the final determination. For
the
13 purposes of this subsection:
14 1. "Economic development
incentive" means any grant, loan or
15 performance-based incentive from any government entity that is
awarded after
16 September 30, 2008. Economic development incentive does not include
any tax
17 provision under title 42 or 43.
18 2. "Government entity" means
this state and any political subdivision
19 of this state that receives and uses tax revenues.
20
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