PHOENIX -- Gov. Jan Brewer is opening up a new front in her legal battle over the state's 2010 immigration law.
In legal papers filed with the 9th U.S. Circuit Court of Appeals, the governor's lawyers took the first steps to argue that federal Judge Susan Bolton got it wrong earlier this month when she concluded it is illegal for Arizona to make a state crime out of harboring illegal immigrants. They want that order reversed.
If they are successful, that actually would make the second change of course. Bolton originally had found the provision legal in her first ruling two years ago before concluding earlier this month that was a mistake.
At the heart of the battle is a section of SB 1070 that would create a separate crime for someone who is violating any other law to also transport or harbor an illegal immigrant, or to encourage or induce someone to illegally come to or live in the state. The law requires that someone knows the person is in this country illegally or recklessly disregard that fact.
Gubernatorial press aide Matthew Benson said his boss believes this is an important tool for law enforcement.
"We're talking about the transport and harboring of illegal immigrants,' he said. "That's something that leaves a path of crime and violence all over our state.'
He said rival gangs of smugglers get into violent fights with each other.
"We see it in the drop houses where torture and blackmail are commonplace,' Benson continued. "The state has an obligation and a right to protect its citizens.'
In her original 2010 ruling, Bolton rejected arguments by the Obama administration that the provision conflicted with the exclusive right of the federal government to regulate immigration.
"(The section) does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States,' Bolton wrote at that time in refusing to block the law.
But earlier this month, Bolton had a change of heart. The judge concluded that this is strictly a federal issue.
"It is a federal crime to transport or move an unlawfully present alien within the United States; to conceal, harbor, or shield an unlawfully present alien from detection; or to encourage or induce a person to come to, enter or resident in the United States without authorization.' the judge said in her Sept. 5 ruling. And she said federal law also makes it a crime to aid in any of these acts.
"While state officials are authorized to make arrests for these violations of federal law, the federal government retains exclusive jurisdiction to prosecute them,' Bolton ruled.
Benson acknowledged that the incident which concern Brewer likely already can be prosecuted under existing state laws. For example, it already is a crime to kidnap someone or to torture them.
He said, though, that does not make the section of SB 1070 illegal or unnecessary.
"This provision complements federal law and gives state law enforcement one more tool to attack what is an ongoing problem,' Benson said.
But Bolton already has rejected the argument that Arizona can adopt laws designed to do the same things.
"Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted,' the judge wrote. In fact, she said that language is precisely what the U.S. Supreme Court wrote in June when it sided with the Obama administration and ruled that three other sections of SB 1070 are preempted by federal law:
Requiring immigrants carry federal registration papers.
Making it a state crime for someone who is undocumented to seek work or hold a job in Arizona;
Allowing state and local police to arrest suspected illegal immigrants without warrants.
Benson acknowledged the state was rebuffed on those three points. But he said that does not preclude Brewer from making the same arguments to try to preserve the section on harboring.
"That's what courts are for,' he said.
In that June ruling, the high court sided with Arizona on only one issue: requiring police to question those they have stopped if there is reason to believe that they are in this country illegally. The justices said there was no evidence, at least at this point, those kinds of checks are preempted by federal law.
There is separate litigation by civil rights groups challenging that section, not on the basis of preemption but that there is no way to enforce the law without violating the rights of minorities.