Puente’s Answering Brief in Ninth Circuit Preliminary Injunction Appeal

No. 15-15211 No. 15-15213 No. 15-15215

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PUENTE ARIZONA, ET AL.,

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, ET AL.,

Defendant-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Case No. 2:14-CV-01356 The Honorable David G. Campbell United States District Court Judge

APPELLEES’ CONSOLIDATED ANSWERING BRIEF

Anne Lai

University of California, Irvine

School of Law – Immigrant Rights

Clinic

401 E. Peltason Dr., Ste. 3500

Irvine, CA 92616-5479

Telephone: (949) 824-9894

Facsimile: (949) 824-2747

[email protected]

Cindy Pánuco

Joshua Piovia-Scott

Dan Stormer Hadsell Stormer & Renick LLP

127 N. Fair Oaks Ave., Ste. 204

Pasadena, CA 91103

Telephone: (866) 457-2590

[email protected] [email protected] [email protected]

Attorneys for Appellees PUENTE ARIZONA, ET AL.

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 1 of 83

Daniel J. Pochoda

ACLU Foundation of Arizona

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

[email protected]

Jessica Myers Vosburgh

National Day Laborer

Organizing Network

2104 Chapel Hill Rd.

Hoover, AL 35216

Telephone: (215) 317-1481

[email protected]

Jessica Karp Bansal

National Day Laborer Organizing

Network

675 S. Park View St., Ste. B

Los Angeles, CA 90057

Telephone: (213) 380-2214

[email protected]

Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra

Maldonado, PLC

2637 North 16th St., Unit 1

Phoenix, AZ 85006

Telephone: (602) 910-4040

[email protected]

Attorneys for Appellees PUENTE ARIZONA, ET AL.


i

CORPORATE DISCLOSURE STATEMENT

Appellee Puente Arizona, a non-profit organization, states that it

has no parent corporations and there is no publicly held corporation

that owns 10% or more of its stock.

No other Appellee is a corporation.


ii

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ....................................................................... v JURISDICTIONAL STATEMENT ............................................................ 1 STATEMENT OF THE ISSUES ................................................................ 1 STATEMENT OF THE CASE ................................................................... 2 A. Factual Background ................................................................. 2 B. The District Court's Order ....................................................... 9 STANDARD OF REVIEW ........................................................................ 11 SUMMARY OF ARGUMENT .................................................................. 12 ARGUMENT ............................................................................................. 13 I. The District Court Rightly Concluded that Appellees are Likely to Succeed on the Merits of Their Supremacy Clause Claim ................................................................................... 13 A. The Clear Purpose and Effect of Arizona's Worker Identity Provisions Is to Impose Criminal Penalties on Undocumented Workers Who Seek or Engage in Unauthorized Employment ................................................... 15 1. Courts deciding preemption claims examine the purpose and effect of state laws ................................... 15 2. The record demonstrates only one primary purpose and effect of the worker identity provisions ............... 19


iii

B. Arizona's Worker Identity Provisions are Field Preempted ............................................................................... 23 1. Congress has fully occupied the field of fraud in response to the federal employment verification system ............................................................................ 24 2. Appellants fail to acknowledge the federal scheme at issue or its Congressional intent, instead considering statutory provisions out of context ............................... 30 C. Arizona's Worker Identity Provisions are Conflict Preempted ................................................................. 32 1. The Arizona provisions disrupt the congressional calibration of force by imposing additional and different penalties on unauthorized workers .............. 33 2. Arizona's worker identity provisions intrude on the federal government's exclusive prosecutorial power and permit prosecutions unaligned with federal

priorities ........................................................................ 36 D. The Worker Identity Provisions are Unconstitutional in All Their Applications ........................................................ 40 II. The District Court Had Ample Grounds to Find that the Remaining Equitable Factors Weigh in Favor of a Preliminary Injunction ........................................................................................ 42 A. Appellees Will Suffer Irreparable Harm ............................... 42 1. The District Court correctly found that members of Puente were at risk of unconstitutional prosecutions ................................................................... 43 2. The passage of time does not undermine the finding of irreparable harm to Puente ...................................... 46


iv

B. The District Court Correctly Found That the Equities Tipped Sharply in Favor of Appellees and That An Injunction is in the Public Interest ....................................... 47 III. The District Court's Finding Regarding the County's Liability Should Not Be Disturbed ................................................................ 50 A. The Issue of the County's Monell Liability Is Not Appealable at This Stage ....................................................... 50 B. All Courts to Consider the Question Have Found the County Liable for Sheriff Arpaio's Law Enforcement

Decisions ................................................................................. 53 1. Sheriff Arpaio has final policymaking authority ......... 54 2. Sheriff Arpaio acts for the County in the area of law enforcement ................................................................... 56 CONCLUSION .......................................................................................... 59 CERTIFICATE OF COMPLIANCE ......................................................... 61 STATEMENT OF RELATED CASES ..................................................... 62


v

TTABLE OF AUTHORITIES

Page(s)

FEDERAL CASES Arc of California v. Douglas 757 F.3d 975 (9th Cir. 2014) ............................................... 12, 46, 47 Arizona v. United States 132 S.Ct. 2492 (2012) .............................................................. passim Arizona v. Valle Del Sol, Inc. 134 S.Ct. 1876 (2014) ................................................................ 23, 24 Arizona Dream Act Coalition v. Brewer 757 F.3d 1053 (9th Cir. 2014) ....................................... 16, 18, 39, 47 Brewster v. Shasta County 275 F.3d 803 (9th Cir. 2001) ......................................... 54, 56, 58, 59 Buckman Co. v. Plaintiff’s Legal Committee 531 U.S. 341 (2001) ....................................................... 14, 37, 39, 40 California v. ARC America Corporation 490 U.S. 93 (1989) ........................................................................... 36 California Tow Truck Association v. City & County of San Francisco 693 F.3d 847 (9th Cir. 2012) ............................................... 17, 18, 19 Chamber of Commerce v. Whiting 131 S.Ct. 1968 (2011) ...................................................... 3, 18, 39, 40 Chamber of Commerce of U.S. v. Brown 554 U.S. 60 (2008) ........................................................................... 16 City of Los Angeles v. Lyons 461 U.S. 95 (1983) ............................................................... 43, 44, 45


vi

County of Los Angeles, California v. Goldstein

134 S. Ct. 906 (2014) ....................................................................... 56 Cousins v. Lockyer 568 F.3d 1063 (9th Cir. 2009) ......................................................... 12 Crosby v. National Foreign Trade Council 530 U.S. 363 (2000) ....................................................... 13, 33, 34, 36 Department of Housing & Urban Development v. Rucker 535 U.S. 125 (2002) ......................................................................... 47 Doran v. Salem Inn, Inc. 422 U.S. 922 (1975) ......................................................................... 45 Dougherty v. City of Covina 654 F.3d 892 (9th Cir. 2011) ........................................................... 12 Elrod v. Burns 427 U.S. 347 (1976) ......................................................................... 43 English v. General Electric Co. 496 U.S. 72 (1990) ............................................................... 17, 18, 19 Entergy Nuclear Vermont Yankee, LLC v. Shumlin 733 F.3d 393 (2d Cir. 2013) ................................................. 17, 18, 19 Gade v. National Solid Waste Management Association 505 U.S. 88 (1992) ......................................................... 15, 16, 18, 21 Geier v. America Honda Motor Co. 529 U.S. 861 (2000) ....................................................... 14, 15, 31, 39 Georgia Latino Alliance for Human Rights v. Governor of Georgia 691 F.3d 1250 (11th Cir. 2012) ....................................................... 26 Goldstein v. City of Long Beach 715 F.3d 750 (9th Cir. 2013) ..................................................... 56, 59


vii

Hines v. Davidowitz 312 U.S. 52 (1941) ....................................................................... 7, 24 Hoffman Plastic Compounds, Inc. v. N.L.R.B. 535 U.S. 137 (2002) ............................................................... 4, 24, 28 I.N.S. v. National Center for Immigrants’ Rights, Inc. 502 U.S. 183 (1991) ......................................................................... 37 Kenna v. U.S. District Court for the Central District of California 435 F.3d 1011 (9th Cir. 2006) ......................................................... 49 Kleenwell Biohazard Waste & General Ecology Consultants v. Nelson 48 F.3d 391 (9th Cir. 1995) ............................................................. 45 Kirshner v. Uniden Corporation of America 842 F.2d 1074 (9th Cir. 1988) ......................................................... 58 LaDuke v. Nelson 762 F.2d 1318 (9th Cir. 1985) ......................................................... 45 Lee v. City of Los Angeles 250 F.3d 668 (9th Cir. 2001) ..................................................... 49, 58 Lopez v. Candaele 630 F.3d 775 (9th Cir. 2010) ........................................................... 44 Lopez v. Pacific Maritime Association 657 F.3d 762, 766-67 (9th Cir. 2011) ............................................. 45 Lopez-Valenzuela v. Arpaio 770 F.3d 772 (9th Cir. 2014) ............................................... 40, 41, 48 Loyal Tire & Automobile Center, Inc. v. Town of Woodbury 445 F.3d 136 (2d Cir. 2006) ............................................................. 18 Lozano v. City of Hazleton 724 F.3d 297 (3d Cir. 2013) ................................................. 26, 27, 41


viii

Lydo Enterprises, Inc. v. City of Las Vegas 745 F.2d 1211 (9th Cir. 1984) ......................................................... 46 Lytle v. Carl 382 F.3d 978 (9th Cir. 2004) ........................................................... 55 McMillian v. Monroe County, Alabama 520 U.S. 781 (1997) ............................................................. 54, 56, 57 Medtronic, Inc. v. Lohr 518 U.S. 470 (1996) ......................................................................... 31 Meredith v. Oregon 321 F.3d 807 (9th Cir. 2003) ............................................... 50, 51, 56 Monell v. Department of Social Services of New York 436 U.S. 658 (1978) ................................................................. passim Morales v. Trans World Airlines, Inc. 504 U.S. 374 (1992) ......................................................................... 43 Morris v. Slappy 461 U.S. 1 (1983) ............................................................................. 49 Motor Coach Employees v. Lockridge 403 U.S. 274 (1971) ......................................................................... 33 National Center for Immigrants’ Rights, Inc. v. I.N.S. 913 F.2d 1350 (9th Cir.1990) .......................................................... 37 National Wildlife Federation v. National Marine Fisheries Service 422 F.3d 782 (9th Cir. 2005) ........................................................... 11 New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. 514 U.S. 645 (1995) ......................................................................... 15


ix

Oklevueha Native America Church of Hawaii, Inc. v. Holder 676 F.3d 829 (9th Cir. 2012) ............................................... 10, 43, 45 Oneok, Inc. v. Learjet, Inc. 135 S.Ct. 1591 (2015) ...................................................................... 16 Ortega Melendres v. Arpaio 598 F.Supp.2d 1025 (D. Ariz. 2009) ................................................ 53 Ortega Melendres v. Arpaio 695 F.3d 990 (9th Cir. 2012) ............................................... 11, 43, 47 Perez v. Campbell 402 U.S. 637 (1971) ......................................................................... 18 Poulos v. Caesars World 379 F.3d 654 (9th Cir. 2004) ............................................... 50, 51, 52 Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947) ......................................................................... 15 Rodriguez v. Robbins 715 F.3d 1127 (9th Cir. 2013) ......................................................... 47 Rucker v. Davis 237 F.3d 1113 (9th Cir. 2001) ......................................................... 47 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose 546 F.3d 1087 (9th Cir. 2008) ........................................................ 45 Southern Pacific Transport Co. v. Public Utility Commission of State of Oregon 9 F.3d 807 (9th Cir. 1993) ............................................................... 17 Southwest Voter Registration Education Project v. Shelley 344 F.3d 914 (9th Cir. 2003) ........................................................... 11


x

Swint v. Chambers County Commission 514 U.S. 35 (1995) ............................................................... 50, 51, 52 United States v. Arizona 641 F.3d 339 (9th Cir. 2011) ................................................. 4, 15, 28 United States v. Hinkson 585 F.3d 1247 (2009) ....................................................................... 42 United States v. Maricopa County 915 F.Supp.2d 1073 (D. Ariz. 2012) ................................................ 53 United States v. Peninsula Communications, Inc. 287 F.3d 832 (9th Cir. 2002) ........................................................... 11 United States v. Salerno 481 U.S. 739 (1987) ......................................................................... 40 United States v. South Carolina 720 F.3d 518 (4th Cir. 2013) .............................................. 27, 28, 36 United States v. South Carolina 840 F.Supp.2d 898 (D.S.C. 2011) .................................................... 36 Valle del Sol Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013) ................................................. passim We Are America v. Maricopa County Board of Supervisors 297 F.R.D. 373 (D. Ariz. 2013) .................................................. 27, 42 Weiner v. San Diego County 210 F.3d 1025 (9th Cir. 2000) ......................................................... 54 Williams v. Zbaraz 442 U.S. 1309 (1979) ....................................................................... 47 Wisc. Department of Industrial, Labor & Human Relations v. Gould Inc. 475 U.S. 282 (1986) ................................................................... 23, 35


xi

Younger v. Harris 401 U.S. 37 (1971) ..................................................................... 45, 51

SSTATE CASES Flanders v. Maricopa County 54 P.3d 837 (Ariz. App. 2002) ......................................................... 53 Hernandez v. Lynch 167 P.3d 1264 (Ariz. Ct. App. 2007) ............................................... 48 Hernandez v. State 639 S.E.2d 473 (Ga. 2007) ............................................................... 23 Hounshell v. White 199 P.3d 636 (Ariz. App. 2008) ....................................................... 58 State v. Lopez-Navarrete 340 P.3d 1235 (Kan. App. 2014) ..................................................... 23 State v. Prentiss 163 Ariz. 81 (1989) ........................................................................... 42

DOCKETED CASES Guillory v. Greenlee County No. CV 05-352 TUC DCB 2006 WL 2816600 (D. Ariz. Sept. 28, 2006) ................................... 53 Lovejoy v. Arpaio No. CV 09-1912-PHX-NVW 2010 WL 466010 (D. Ariz. Feb. 10, 2010) ....................................... 53 Mora v. Arpaio No. CV-09-1719-PHX-DGC 2011 WL 1562443 (D. Ariz. Apr. 25, 2011) ..................................... 53


xii

FFEDERAL STATUTES 8 U.S.C. § 1101(a)(15) ...................................................................................... 6 § 1182(a)(6) ...................................................................................... 26 § 1227(a)(3)(C) ................................................................................. 26 § 1324a ..................................................................................... passim 18 U.S.C. § 1028 ............................................................................. 24, 25, 30, 35

§ 1546 ................................................................................... 25, 28, 31 22 U.S.C. § 7101(b) ........................................................................................... 35 28 U.S.C. § 1292(a)(1) .................................................................................. 1, 50 Federal Rules of Appellate Procedure 28-2.6 ................................................................................................ 62 32(a)(7) ............................................................................................. 61 Federal Rules of Civil Procedure 12(b) .................................................................................................. 10 Public Law 99-603 § 103 ................................................................................................. 25 § 101 ................................................................................................. 25 § 111 ................................................................................................... 6

STATE STATUTES Arizona Constitution Article XII, Section 3 ....................................................................... 57 Arizona Revised Statutes § 11-219 ............................................................................................ 58 § 11-251 ............................................................................................ 57 § 11-253 ............................................................................................ 58


xiii

§ 11-261 ............................................................................................ 56 § 11-401 ............................................................................................ 57 § 11-402 ............................................................................................ 57 § 11-409 ............................................................................................ 57 § 11-441 ............................................................................................ 55

§ 13-2002 .......................................................................................... 48 § 13-2008 .............................................................................. 3, 42, 48 § 13-2009 ............................................................................ 2, 3, 42, 48 § 13-2929 .......................................................................................... 27 § 38-341 ............................................................................................ 57

RREGULATIONS 8 C.F.R. § 214.14 .............................................................................................. 6 § 274a.2 ........................................................................................ 4, 23 28 C.F.R. § 68.1 ................................................................................................ 26

MISCELLANEOUS

132 Congressional Record, S16879-01 (1986) ..................................... 5, 25 H.R. Rep., 99-682 (1986) ............................................................................. 6


1

JURISDICTIONAL STATEMENT

Appellees agree that the Court has jurisdiction over Appellants’

appeal of the District Court’s preliminary injunction pursuant to 28

U.S.C. § 1292(a)(1). However, Appellant Maricopa County’s attempted

appeal of the District Court’s ruling regarding municipal liability is not

properly before the Court, as it does not meet the criteria for pendent

appellate jurisdiction and is not a collateral order.

STATEMENT OF THE ISSUES

1. Whether the District Court correctly found that the

challenged provisions of Arizona law, enacted with a clear intent and

practical effect of punishing undocumented immigrants1 who use false

identity information to work, constituted a facially invalid state

intrusion into an area of excusive federal control because Congress has

fully occupied the field of regulating fraud in response to the federal

employment verification system;

2. Whether the District Court correctly found that the

challenged provisions pose an obstacle to federal law—and are therefore

conflict preempted—because they disrupt the congressional calibration

of force and interfere with the careful balance struck by Congress with

respect to the employment of undocumented immigrants;

3. Whether the District Court abused its discretion in granting

a preliminary injunction where Appellees made a clear showing of

1 Appellees intend the terms “undocumented immigrant” and

“undocumented worker” to refer to individuals who do not have federal

authorization to work in the United States. They will use these terms

except when quoting materials that use a different term.


2

irreparable harm and the balance of equities and public interest favored

a preliminary injunction; and

4. Whether this Court should disturb the District Court’s

ruling regarding Maricopa County’s liability for Sheriff Arpaio’s law

enforcement decisions where the County has not established appellate

jurisdiction over the issue and every court to have ruled has concluded

the County is liable.

STATEMENT OF THE CASE

A. Factual Background

This case was brought by Appellee Puente Arizona (“Puente”) and

several individuals to challenge two Arizona laws which sought to

criminally punish individuals who do not have federal authorization to

work in the United States for conduct related to securing employment.

Enacted in response to nativist sentiment in Arizona, the measures

formed part of a broader platform by former state legislator Russell

Pearce and other supporters to make life so difficult for immigrants who

had come from Mexico and other parts of Latin America that they would

“self deport.”

Specifically, H.B. 2779, also called the “Legal Arizona Workers

Act,” (“LAWA”), passed in 2007, expanded the grounds of aggravated

identity theft to include using the information of another person,

whether a real or fictitious person, “with the intent to obtain

employment.” Supplemental Excerpts of Record (“SER”) 1-SER-72 (H.B.

2779 §1, amending A.R.S. § 13-2009(A)(3)). H.B. 2745, passed in 2008,

made changes to LAWA, including expanding the non-aggravated


3

identity theft statute to include use of identifying information “with the

intent to obtain or continue employment.” 1-SER-84 (H.B. 2745 §1,

amending A.R.S. § 13-2008(A)).2 The added provisions in A.R.S. § 13-

2009 (A)(3) and § 13-2008(A) (collectively, the “worker identity

provisions”3) were intended to address employment of undocumented

immigrants and, in fact, the titles and official descriptions of the

measures explicitly reflected this purpose. See, e.g., 1-SER-107 (Senate

Amended Fact Sheet for H.B. 2779); 1-SER-118 (House Summary for

H.B. 2745).

Legislators supporting passage of the worker identity provisions

were not shy to express their view that Arizona should punish

undocumented workers harshly because doing otherwise “would be

viewed as a weakening of our . . . opposition to illegal immigration.” 1-

SER-187 (statement of co-sponsor Sen. Robert Burns). Primary sponsor

and then Representative Pearce explained during the debate that state

action was necessary because “the Feds have not done their job” to quell

2 Other provisions of H.B. 2779 and H.B. 2745 required employers to

check employees’ employment authorization status and imposed

sanctions in the form of license suspensions on employers that

knowingly employed unauthorized immigrants. The sanctions on

employers were found permissible under an express savings clause in 8

U.S.C. § 1324a. Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1973

(2011). 3 Appellees use this term rather than “Identity Theft Laws” to

distinguish them from the remainder of A.R.S. §§ 13-2008 and 13-2009,

which address identity theft unrelated to employment and are not at

issue in this case. See Appellees’ Addendum (reproducing A.R.S. §§ 13-

2008, 13-2009 and highlighting portions affected by the District Court’s

order).


4

what he described as a “national epidemic” of unlawful immigration

that threatened the “destruction of our country,” and so “[Arizona]

need[s] to step up to the plate.” 1-SER-149-51 (statement of Rep.

Pearce). And Senator Chuck Gray explained that he supported LAWA

because it “advances the cause of protecting our citizens against

something that the Federal Government won’t do.” 1-SER-160

(statement of Sen. Gray).

In their bid to show disapproval of federal policy in this area,

Arizona legislators created state crimes in an area that had already

been comprehensively regulated by Congress. More than 20 years

earlier, Congress had “made combating the employment of illegal aliens

central to the policy of immigration law.” Hoffman Plastic Compounds,

Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002) (citation omitted). Through

the Immigration Reform and Control Act of 1986 (“IRCA”),4 Congress

created a “complex,” United States v. Arizona, 641 F.3d 339, 358 (9th

Cir. 2011), rev’d in part, 132 S. Ct. 2492, “comprehensive,” Arizona, 132

S.Ct. at 2504, and “careful[ly] balance[d],” id. at 2505, scheme to

regulate the employment of undocumented immigrants at the national

level. This scheme includes a detailed procedure for verifying

prospective employees’ eligibility for employment under federal law, see

8 U.S.C. § 1324a(b); 8 C.F.R. §274a.2, as well as a graduated series of

civil and criminal sanctions for employers who knowingly employ

undocumented immigrants, see 8 U.S.C. § 1324a(e)-(f).

4 Pub. L. 99-603, codified at 8 U.S.C. § 1324a et seq.


5

Congress anticipated that some individuals might respond to the

new employment verification system by relying on false information or

documents. See, e.g., The Knowing Employment of Illegal Immigrants:

Hearing before the Subcomm. on Immigration and Refugee Policy of the

S. Comm. on the Judiciary, 97th Cong. 53, 14 (1981), available at

http://babel.hathitrust.org/cgi/pt?id=pst.000047041790;view=1up;seq=7

(statement of Doris Meissner, Acting Comm’r, Immigration and

Nationality Service) (“The Department of Justice recognizes the

likelihood that with employer sanctions there will be a significant

increase in the use of fraudulent documentation by illegal aliens[.]”).

Accordingly, Congress provided federal authorities with a variety of

tools to address this concern. See 132 Cong. Rec. S16879-01 (1986)

(statement of co-sponsor Sen. Simpson) (legislators “paid close attention

to” the issue of document fraud and “provide[d] for this reality” by

creating civil and criminal penalties). The federal tools are versatile and

comprehensive. See infra at 25-26.

In implementing the federal scheme governing the employment of

undocumented immigrants, the Department of Homeland Security’s

(“DHS”) Immigration and Customs Enforcement (“ICE”) agency has

utilized the built-in versatility to rely heavily on civil, rather than

criminal, measures. See Andorra Bruno, Cong. Research Serv., RL

40002 Immigration-Related Worksite Enforcement: Performance

Measures 6-7 (2013) (“CRS Report”) (between 2003 and 2012, ICE

brought 20,631 administrative charges as compared to 5,131 criminal

charges). ICE also “prioritizes the criminal prosecution of employers

who knowingly hire undocumented workers . . . or facilitate document


6

or benefit fraud.” Id. at 3 (citation omitted) (emphasis added). This is

consistent with Congressional intent not to make undocumented

workers more vulnerable than necessary or “undermine or diminish in

any way labor protections in existing law, or limit the powers of federal

or state [authorities] . . . to remedy unfair practices committed against

undocumented employees for exercising their rights”. H.R. Rep. No. 99–

682, pt. 1, at 58 (1986). Indeed, as part of IRCA, Congress authorized

funds for the Department of Labor (“DOL”)’s Wage and Hour Division to

strengthen enforcement of employment standards laws for

undocumented workers. Pub. L. 99-603, § 111(d) (noting that doing so

would help “remove the economic incentive for employers to exploit and

use such aliens”). Congress has also made available visas for workers

who fall victim to labor trafficking and other crimes to encourage them

to cooperate with law enforcement. See generally 8 U.S.C. §§

1101(a)(15)(T), 1101(a)(15)(U); 8 C.F.R. § 214.14.

The federal government has taken numerous steps to ensure that

enforcement of laws regulating employment of undocumented

immigrants does not undermine the federal interest in protecting labor

rights.5 At the international level, the United States has entered into

5 For example, because enforcement against workers “might impede

[the DOL’s] ability to gain the trust of illegal aliens who may be the

victims of labor violations and potential witnesses against employers,”

CRS Report at 10, DOL and DHS have entered into a Memorandum of

Understanding to avoid conflicts in worksite enforcement activities and

insulate enforcement “from inappropriate manipulation by other

parties,” Revised Memorandum of Understanding between the

Departments of Homeland Security and Labor Concerning Enforcement

Activities at Worksites, Dec. 7, 2011, 1. ICE has also issued guidance


7

treaties to protect labor rights, including those that extend to

undocumented immigrant workers. For example, in 1994, the United

States, Mexico and Canada signed the North American Agreement on

Labor Cooperation (“NAALC”) to “[p]rovid[e] migrant workers in a

Party’s territory with the same legal protection as the Party’s nationals

in respect of working conditions.” NAALC, Annex 1 § 11, available at

http://new.naalc.org/index.cfm?page=219. The ability of the United

States to protect the rights of immigrant workers here has important

consequences for the “reciprocal treatment of American citizens

abroad.” Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); see also

Hines v. Davidowitz, 312 U.S. 52, 64 (1941).

In contrast, Arizona’s worker identity provisions embody no such

balance. Predictably, shortly after H.B. 2779 went into effect in 2008,

the Maricopa County Sheriff’s Office (“MCSO”), working with the

Maricopa County Attorney’s Office (“MCAO”), initiated a campaign of

worksite enforcement operations to crack down on unauthorized

immigration. See 1-SER-196 (MCSO News Release describing

crackdown and noting that in 55 worksite identity theft operations,

“100% of [] suspects . . . were illegal aliens”). MCSO created a

specialized unit called the Criminal Employment Squad focused on

investigating undocumented immigrants who use false documents to

work. 1-SER-202-06 (testimony of Deputy Hector Martinez). And the

MCAO prosecuted the cases through a special unit that handled

stating it will exercise prosecutorial discretion not to deport individuals

who are engaged in protected activity to vindicate labor rights. Excerpts

of Record (“ER”) 2-ER-247-49.


8

immigration crimes rather than its general Fraud and Identity Theft

Bureau. 1-SER-212-15 (testimony of Vicki Kratovil); 1-SER-221 (MCAO

Special Report). In six years, MCSO conducted over seventy worksite

operations, arresting nearly 790 workers on charges of identity theft

and/or forgery. 1-SER-226. In 2014, after the courts had enjoined other

aspects of his office’s program on immigration, Sheriff Arpaio told a

crowd of supporters, “I still enforce the illegal immigration laws by

virtue of going into businesses and locking up the employees with fake

ID.” Statement at Minnesota Tea Party Special Event, March 6, 2014,

at minute 51:14, available at https://www.youtube.com/watch?v=LFd-

Xxrl5qw. In six years, only five employers were charged by Maricopa

County law enforcement with violations related to employing

undocumented workers. 1-SER-228.

The worksite operations spread fear through the immigrant

community, discouraged undocumented workers from reporting labor

rights violations, and separated breadwinners from their families. See

14-ER-3186-88, Garcia Decl. ¶¶13, 16, 18-19, 23-24; see also 14-ER-

3201-03, Cervantes Decl. ¶¶15-19, 24-29 (describing harms experienced

as a result of being arrested); 14-ER- 3197-98, Romero Decl. ¶¶14-15,

18, 22-26) (same). In response, Puente staff and volunteers began

providing direct assistance to members affected by the worksite

operations and conducting advocacy to try to stop them. 14-ER-3187-89,

Garcia Decl. ¶¶17, 28-31. In the meantime, the Supreme Court and

other federal courts issued several landmark rulings on the application

of the Supremacy Clause to state immigration measures. See, e.g., infra

Part I.B.1 (discussing precedents). In 2014, with workers continuing to


9

be arrested and Appellants showing no sign of discontinuing

enforcement, Appellees secured legal counsel to file this case, see

District Court Clerk’s Record (hereafter “CR”) 1, and, shortly after

filing, moved for the instant preliminary injunction, CR 30.

B. The District Court’s Order

In its order granting a preliminary injunction, the District Court

found that Appellees had demonstrated a likelihood of success on their

facial Supremacy Clause challenge to the worker identity provisions.6

First, the District Court found that Congress had exclusively occupied

the field of “unauthorized-alien fraud in seeking employment.” 1-ER-28-

29. Though Appellants argued that Arizona’s worker identity provisions

were “facially neutral” as to immigration status, the court, applying

preemption precedents, carefully “[c]onsider[ed] the text, purpose, and

effect” of the challenged measures and concluded that they were

directed at “imposing criminal penalties on unauthorized aliens who

seek or engage in unauthorized employment in the State of Arizona.” 1-

ER-27. Appellants did not provide any “legislative history that shows a

contrary intent.” Id. Thus, Arizona had regulated in a prohibited field.

Id.

The District Court also found that the provisions were likely

conflict preempted. As the court explained, Arizona employed different

6 Appellees also contend that the worker identity provisions violate the

Equal Protection Clause of the Fourteenth Amendment and that the

Maricopa County Appellants’ enforcement practices are preempted as

applied. CR 191 ¶¶ 220, 225. But Appellees did not move for a

preliminary injunction on those grounds, so those claims are not part of

this appeal. See, e.g., 1-ER-43.


10

sanctions than federal law and posed a “conflict in technique” disruptive

to the federal system. 1-ER-30-31 (citation omitted). Further, Arizona

“divest[ed] federal authorities of the exclusive power to prosecute”

fraud, thus interfering with the “careful balance” Congress struck in

IRCA. 1-ER-31 (citations omitted).

The District Court went on to find that Appellees had met the

remaining requirements for a preliminary injunction. Appellants made

a clear showing that Puente members faced a “credible threat of

prosecution” under Oklevueha Native Am. Church of Haw., Inc. v.

Holder, 676 F.3d 829 (9th Cir.2012), and thus irreparable harm. 1-ER-

15-18, 35. In contrast, the court explained, Arizona was not without

other tools to combat identity theft. 1-ER-35-36.

The District Court also denied several motions to dismiss filed by

Appellants in the same order, 1-ER-36-46, including a Rule 12(b)(6)

motion made by the County arguing that it was not a proper defendant.

CR 55. In its denial, the District Court explained that the County was a

proper defendant because the County is liable under Monell v. Dep’t of

Soc. Servs. of New York, 436 U.S. 658 (1978), for the official law

enforcement decisions and policies of Sheriff Arpaio. 1-ER-44-46.7 The

County moved for reconsideration of the ruling on its liability, CR 141,

and the District Court denied the motion, 1-ER-1-6.

7 Because the County is liable for the decisions of Sheriff Arpaio, the

District Court found it was not necessary to address whether the

County is also liable for the decisions of Appellant Montgomery under

Monell. 1-ER-46.


11

Appellants subsequently filed the instant interlocutory appeal of

the District Court’s preliminary injunction order. The County also filed

a separate brief arguing that it is not a proper defendant in the case.

This answering brief responds to Appellants’ Opening Brief (Dkt. 28)

(“AOB”), Appellant Maricopa County’s Opening Brief on Monell

Liability Issue and Joinder in Co-Appellants’ Opening Brief on Other

Issues (Dkt. 26-1) (“MCOB”), and the Amicus Brief Supporting

Appellants and Supporting Reversal of the Preliminary Injunction (Dkt.

32-1) (“BOA”).

STANDARD OF REVIEW

The standard of review for the issuance of a preliminary

injunction is “‘limited and deferential.’” Nat’l Wildlife Fed’n v. Nat’l

Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir. 2005) (quoting

Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918

(9th Cir. 2003) (en banc)). A faithful application of this standard means

that an appellate court should not disturb a district court’s ruling

unless it “abused its discretion or based its decision on an erroneous

legal standard or on clearly erroneous findings of fact.” United States v.

Peninsula Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). In other

words, a ruling “will not be reversed simply because the appellate court

would have arrived at a different result if it had applied the law to the

facts of the case.” Ortega Melendres v. Arpaio, 695 F.3d 990, 999 (9th

Cir. 2012) (citation omitted).

“A plaintiff seeking a preliminary injunction must establish that

he is likely to succeed on the merits, that he is likely to suffer


12

irreparable harm , , , that the balance of equities tips in his favor, and

that an injunction is in the public interest.” Arc of Cal. v. Douglas, 757

F.3d 975, 990 (9th Cir. 2014) (citation omitted). The Ninth Circuit

“evaluate[s] these factors via a sliding scale approach.” Id. (citation

omitted).

When properly raised, this Court reviews a denial of a motion to

dismiss de novo. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir.

2011). “All allegations of material fact [in the complaint] are taken as

true and construed in the light most favorable to the nonmoving party.”

Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation

omitted).

SUMMARY OF ARGUMENT

The worker identity provisions are the latest aspect of Arizona’s

effort to make its own immigration policy to have been struck down by

the courts. Appellants fill up many pages of briefing, but they fail to

point to a single piece of record evidence to contradict the District

Court’s finding that the worker identity provisions were enacted in

order to punish fraud in the federal work authorization verification

system. Rather, they attempt to rewrite history by insisting that the

measures were about identity theft generally. This Court should decline

Appellants’ invitation to ignore the provisions’ plain intent and

practical effect. Appellants’ position not only flies in the face of binding

precedent, but would allow any state—under the guise of punishing

identity theft—to create its own scheme for punishing undocumented

workers who provide false information in response to the employment


13

verification system created by Congress in IRCA. That cannot be the

law.

As the District Court observed, the Arizona Legislature clearly

entered a preempted field when it enacted H.B. 2779 § 1 and H.B. 2745

§ 1. In addition, the worker identity provisions in fact interfere with

federal law and are therefore conflict preempted. Moreover, Puente’s

members faced a concrete, credible threat of prosecution and the

balance of equities and public interest favored an injunction. In so

finding, the District Court applied controlling precedents of this Court

and of the Supreme Court—precedents that Appellants fail to

adequately address in their brief.

In addition, the County improperly tries to use the interlocutory

appeal of the preliminary injunction as a springboard to challenge the

District Court’s ruling on its liability. The County has not made any

showing that this issue meets the stringent standards for appellate

jurisdiction. If this Court reaches the question at all, it should find the

County’s arguments meritless and affirm the District Court’s order.

ARGUMENT

I. The District Court Rightly Concluded that Appellees are Likely to Succeed on the Merits of Their Supremacy Clause Claim

It is “[a] fundamental principle of the Constitution [] that

Congress has the power to preempt state law.” Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 372 (2000). In the absence of an express

preemption provision, state law is preempted “when the scope of a

statute indicates that Congress intended federal law to occupy a field


14

exclusively, or when state law is in actual conflict with federal law.”

Geier v. Am. Honda Motor Co., 529 U.S. 861, 899 (2000) (citations

omitted).

Appellants appear fixated on the notion that preemption is only

about express statements. They propose an unprecedented rule—

lacking any support in case law—that a court may only look to the

purpose of a state law in preemption analysis where Congress

specifically said to do so. Moreover, much of their argument turns on a

narrow understanding of the “field” occupied by Congress—limited to

the use of the Form I-9—because they misunderstand Appellees’ claim

to be based only on the express language in 8 U.S.C. § 1324a(b)(5).

Appellants’ vision of preemption law is mistaken. Courts have not

required Congress to speak explicitly when it is preempting state law.

Further, Appellants erroneously assume that a presumption

against preemption applies in this case. They claim that any action

“defining and prosecuting crimes” falls within the State’s historic police

powers and therefore triggers the presumption. AOB 18-20. But laws

are not entitled to a presumption simply because of the manner by

which a state chooses to regulate, e.g., through criminal law, tort law or

otherwise. Instead, courts look at what is being regulated to determine

if it is an “inherently federal” area. Buckman Co. v. Plaintiff’s Legal

Comm., 531 U.S. 341, 347 (2001). Here, the fraud being regulated is a

creature of (and response to) the federal work authorization system. As

in Buckman, Arizona is not entitled to a presumption of preemption.

531 U.S. at 347 (declining to apply presumption, stating that “[p]olicing

fraud against federal agencies is hardly ‘a field which the States have


15

traditionally occupied[]’”) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)).8

In any case, as the District Court explained and as set forth below,

it does not matter if the presumption applies here, because Congress

made its intent to occupy the field “clear and manifest.” 1-ER-27.9

A. The Clear Purpose and Effect of Arizona’s Worker Identity Provisions Is to Impose Criminal Penalties on Undocumented Workers Who Seek or Engage in Unauthorized Employment

1. Courts deciding preemption claims examine the purpose and effect of state laws

To determine if Arizona intruded into a prohibited field, the

District Court considered the “text, purpose and effect” of the

challenged provisions. 1-ER-27. In doing so, the court was following

well-established preemption law. See, e.g., N.Y. State Conference of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658

(1995) (examining purpose and effect of the state law in ERISA

preemption challenge); Chamber of Commerce of U.S. v. Brown, 554

8 Appellants’ suggestion that the Supreme Court applied a presumption

against preemption when evaluating the alien registration provision of

S.B. 1070 in Arizona, AOB 19, is incorrect. The Court discussed the

presumption in its prefatory remarks, not when analyzing the

registration provision. Arizona, 132 S.Ct. at 2501; cf Arizona, 641 F.3d

at 355 (presumption does not apply to provision). 9 Appellants point to Justice Stevens’ dissent in Geier, 529 U.S. 861 and

Justice Kennedy’s concurrence in Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88 (1992) to suggest that implied conflict preemption is

subject to some heightened rule regarding the presumption. AOB 41-42.

These passages do no more than reiterate the rule that, to overcome it,

Congress’s intent must be clear and the interference with federal

purposes actual (i.e., not hypothetical).


16

U.S. 60, 70 (2008) (holding California statute preempted where “the

[state] legislative purpose is . . . the furtherance of a labor policy”);

Gade, 505 U.S. at 105 (“a state law that expressly declares a legislative

purpose” to regulate in an area occupied by the federal government

would be clearly preempted).

Appellants make two flawed arguments in an attempt to divert

the Court’s attention away from Arizona legislators’ purpose. First, they

argue that because it is the intent of Congress that is the touchstone of

preemption doctrine, state legislative purpose—except for in a narrow

category of cases where Congress says otherwise—is irrelevant. AOB

49-50. Second, they suggest that it is a law’s effects, not motives, that

determine whether there is a conflict with the federal scheme. Id. 50-51.

Appellants’ first theory finds no support in the case law. The goal

of looking at state legislative purpose is not to diminish Congressional

intent; it is to honor it. Honoring Congressional intent means—in all

cases—taking reasonable steps to discern the true target of state

regulation. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-1600

(2015) (confirming importance of considering “the target at which the

state law aims” to determine if regulation is preempted and rejecting

the dissent’s contention, similar to Appellants’ here, that the Court

should focus only on “what the State seeks to regulate . . . not why the

State seeks to regulate it”) (emphasis in original). A state cannot

immunize a law from preemption through post hoc justifications or

obscuring its purpose in the text. See Ariz. Dream Act Coal. v. Brewer,

757 F.3d 1053, 1072 (9th Cir. 2014) (Christen, J., concurring) (even law

“ostensibly addressing . . . driver’s licenses[] may effect an


17

impermissible regulation of immigration”); Entergy Nuclear Vermont

Yankee, LLC v. Shumlin, 733 F.3d 393, 420 (2d Cir. 2013) (striking

down state law where “[a]fter being informed that regulation based on

radiological safety was preempted and impermissible, the committee

chair responded, ‘Okay, let’s find another word for safety.’”).

Naturally, the interest in discerning the true target of state

regulation is present whether or not Congress specifically made

preemption dependent on state legislative purpose. Even Cal. Tow

Truck Ass’n v. City & Cnty. Of San Francisco, 693 F.3d 847 (9th Cir.

2012), a case that Appellants cite in support of their theory, pertains to

a savings clause that does not explicitly mention state purpose. Id. at

857 (citing the state safety exception of the Federal Aviation

Administration Authorization Act, which states that the Act does not

restrict “the safety regulatory authority of a State with respect to motor

vehicles”). And English v. General Electric Co., 496 U.S. 72 (1990), the

other case cited by Appellants, reiterates that purpose and effect are

relevant in all cases. Id. at 84-85 (holding that even where a federal

statute does make explicit reference to the “purpose” of a state law, the

state law could still be preempted in the absence of such purpose if the

law had a “direct and substantial” effect on the preempted field).

Moreover, this Circuit has also endorsed examination of purpose in

implied preemption contexts. See, e.g., S. Pac. Transp. Co. v. Pub. Util.

Comm’n of State of Or., 9 F.3d 807, 811 (9th Cir. 1993) (in Locomotive

Boiler Inspection Act case, noting that the preempted field “is defined

by reference to the purpose of the state law in question”) (quoting

English, 496 U.S. at 84-85).


18

Appellants object to the District Court’s examination of legislative

history because the worker identity provisions are unambiguous and

facially “neutral” as to immigration status. AOB 48-51 n. 10. This

confuses statutory construction with statutory purpose.10 In

determining whether a state law was “genuinely responsive to safety

concerns,” this Court has found it entirely appropriate to “‘consider any

specific expressions of legislative intent in the statute itself as well as

the legislative history.’” Cal. Tow Truck, 693 F.3d at 859 (quoting Loyal

Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2d Cir.

2006) (Sotomayor, J.)); Entergy, 733 F.3d at 418 (court should indeed

“look to the statute’s legislative history to determine if it was passed

with an impermissible motive”).

Of course, the practical effect of a state law is also relevant,

especially where there is reason to believe a legislature would mask its

true purpose. See Gade, 505 U.S. at 105-06 (restricting what courts can

consider would “enable state legislatures to nullify nearly all unwanted

federal legislation by simply . . . articulating some state interest or

policy—other than frustration of the federal objective—that would be

tangentially furthered by the proposed state law”) (quoting Perez, 402

U.S. at 651-652); see also Ariz. Dream Act Coalition, 757 F.3d at 1062

(examining practical result of state executive order); Cal. Tow Truck,

10 Though Appellants cite to Whiting, 131 S. Ct. at 1980, the Court there

declined to consider the legislative history of the federal statute, IRCA,

because it found it would be unhelpful to the question of statutory

construction.


19

693 F.3d at 860 (pretextually asserted motive will not save a law from

preemption); Entergy, 733 F.3d at 420–21 (same).11

In sum, the purpose and effects analyses, taken together, allow

courts to distinguish between state laws that have some tangential but

acceptable effect on a field of federal regulation, on the one hand, and

state laws that improperly regulate in a prohibited field, on the other.

See English, 496 U.S. at 85. The District Court applied the analyses

precisely right in this case.

2. The record demonstrates only one primary purpose and effect of the worker identity provisions

It is hard to imagine a more clear case of ostensibly “neutral”

measures having a prohibited purpose and effect than the instant one.

First, the titles and descriptions of H.B. 2779 and H.B. 2745 make

plain that the proposals were intended to address employment by

undocumented immigrants. See supra at 3. The District Court found

that the various provisions of the bills “related almost entirely to

employment of unauthorized aliens.” 1-ER-26.

Second, the unrefuted legislative history “indicates a purpose to

regulate unauthorized aliens who seek employment.” 1-ER-27. The

worker identity provisions were conceived as part of a broader strategy

on immigration advocated by then Representative Pearce called

“attrition through enforcement.” 1-SER-152; 1-SER-164-66 (e-mail from

Rep. Pearce identifying “end[] [to] misuse of Social Security and IRS

11 Contrary to Appellants’ suggestion that the District Court ignored the

worker identity provisions’ effects, AOB 50-51, the court gave notable

consideration to their effect. See infra at 21 (citing 1-ER-27).


20

identification numbers, which illegal immigrants use to secure jobs” as

part of strategy to “Shrink the Illegal Population”).12 The statements of

other Arizona legislators confirmed that they too envisioned the worker

identity provisions as a means to punish undocumented workers and

facilitate their deportation. 1-SER-190 (statement of Sen. Tom

O’Halleran) (advocating that provisions be harsh enough to ensure

workers “stay in jail” and “never be allowed to be citizens of the United

States again”); see also at 3-4 (describing statements of Sen. Burns, Rep.

Pearce and Sen. Gray expressing dissatisfaction with federal policy on

illegal immigration). In signing H.B. 2779 into law, then Governor

Janet Napolitano wrote that because of federal inaction, Arizona had

“no choice but to take strong action to discourage the further flow of

illegal immigration through our borders.” Letter from Janet Napolitano

to Jim Weiers, Ariz. Gov. Mess., July 2, 2007 (H.B. 2779) (Westlaw).

12 Indeed, in the year prior to passage of H.B. 2779, Pearce had been

chief sponsor of a precursor bill, Arizona House Bill 2577 (“H.B. 2577”),

that proposed to revise the definition of the offense of forgery to include

falsely making or altering a written instrument “that purports to be a

document that fulfills the requirements for establishing identity, or

eligibility to work in the United States pursuant to the federal

Immigration Reform and Control Act of 1986, and that is used to obtain

employment in this state by a person who is not authorized to work in

the United States.” 1-SER-11 (H.B. 2577 § 6). The bill passed the

legislature but was vetoed by the Governor. Letter from Janet

Napolitano to Jim Weiers, June 6, 2006, available at http://www.azleg.gov/govlettr/47leg/2R/HB2577.pdf. That the

Legislature’s earlier attempt to criminalize fraudulent activity by

undocumented workers was explicitly linked to IRCA leaves no doubt as

to its true purpose in the years following H.B. 2577.


21

As the District Court found, the worker identity provisions would

“have the most impact on unauthorized aliens.” 1-ER-27. When

assessing the practical effect of a challenged law on a facial challenge, a

court is not limited to the self-serving, in-court representations by

Appellants about their current enforcement practices. The focus is on

what the target of the state law was, and the history of enforcement

practices can shed light on that when a pretextual or post-hoc motive is

asserted. Here, the District Court relied on a striking figure that “100%

of [] suspects” arrested by the MCSO in 55 worksite operations to

enforce the challenged provisions “were illegal aliens.” Id. (citing MCSO

News Release).

Appellants state that individuals who use false personal

identifying information for employment may have reasons other than

the lack of immigration status to do so. AOB 47-48. That may be true,

but “a law directed at a [prohibited field] is not saved from pre-emption

simply because the State can demonstrate some additional effect

outside [of the field].” Gade, 505 U.S. at 107. Undocumented workers

who lack proof of authorization to work must, as a practical matter, use

false identity information to pass the employment verification process.

See, e.g., 14-ER-3196 Romero Decl. ¶ 5; 14-ER-3200 Cervantes Decl. ¶ 6;

14-ER-3186-87 Garcia Decl. ¶¶ 14-15. Appellants have not identified

any other employment verification process as far-reaching as IRCA.


22

Thus, the regulation of identity fraud to “obtain employment” is,

effectively, a regulation of employment by undocumented immigrants.13

In an effort to obscure this practical reality, Appellants

astonishingly claim that their enforcement practices have been

“neutral,” AOB 9, and based on documents other than the Form I-9.

First, the question on this facial challenge to the worker identity

provisions is whether Arizona entered into the preempted field by

regulating fraud by undocumented immigrants in seeking employment,

not whether MCAO is currently violating a specific provision of IRCA by

using the Form I-9. That MCAO amended its policy to limit use of Form

I-9s six years after the provisions’ enactment and after Appellees filed

for a preliminary injunction in this case14 is of little significance—

nothing in the worker identity provisions discourages them from relying

on the Form I-9. Second, to the extent MCAO’s current practice has any

relevance to this appeal, Appellants fail to mention that, as of

September 2014, only two of over 30 cases MCAO had pending under

the challenged provisions allegedly involved U.S. citizens.15

13 Indeed, the worker identity provisions do not even require a person to

have used—or know that they used—the information of a real person.

See, e.g., 14-ER-3202 Cervantes Decl. ¶21; 12-ER-2662 (Cervantes

sentencing minutes). 14 The change in policy took place on September 17, 2014. 2-ER-130,

¶19. This calls into serious question Appellants’ unsupported

representation, AOB 10, that they have filed 493 cases involving a

victim where they did not rely on a Form I-9. See also 12-ER-2646-2647

(MCAO indictment for Ms. Cervantes relying on “I-9 Form”); 12-ER-

2666-2667 (MCSO Supplemental Report of arrest of Ms. Cervantes). 15 By their own admission, Appellants have also continued to

improperly use documents workers submit to show work eligibility


23

Thus, the legislative history, terms, and practical effect of the

worker identity provisions make this a case in which no purpose “could

credibly be ascribed” to them other than trying to impact the

employment of undocumented workers. Wisc. Dep’t of Indus., Labor &

Human Relations v. Gould Inc., 475 U.S. 282, 287 (1986). This easily

distinguishes the case from the non-binding state court decisions cited

by Appellants, AOB 28 (citing Hernandez v. State, 639 S.E. 2d 473 (Ga.

2007) and State v. Lopez-Navarrete, 340 P.3d 1235 (Kan. App. 2014)),

which did not involve statutes specifying the use of identity information

for employment and did not deal with evidence indicating that state

laws were enacted with the purpose or primary effect of regulating

fraud in response to the federal employment verification system.

B. Arizona’s Worker Identity Provisions are Field Preempted

Where “Congress, acting within its proper authority, has

determined [a field] must be regulated by its exclusive governance,”

states may not enter it “in any respect,” even with complementary or

auxiliary regulation. Arizona, 132 S.Ct at 2501-02. “Field preemption

can be inferred . . . [from] a regulatory framework ‘so pervasive . . . that

Congress left no room for the States to supplement it . . . .’” Valle del Sol

Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013) (quoting Arizona,

under IRCA other than the Form I-9, such as driver’s licenses and

Social Security cards. 14-ER-3382; CR 74 at 14. See 8 U.S.C.

§1324a(b)(5) (including information “contained in or appended to [the I-

9]” in use limitation); 8 C.F.R. § 274a.2(b)(4) (explaining that copies or

images of documents “used to verify an individual’s identity or

employment eligibility” are subject to the limitation).


24

132 S.Ct at 2501), cert. denied sub nom. Arizona v. Valle Del Sol, Inc.,

134 S. Ct. 1876 (2014). In other words, a field is preempted if “federal

statutory directives provide a full set of standards . . . designed as a

‘harmonious whole.’” Arizona, 132 S.Ct. at 2502 (quoting Hines, 312

U.S. at 72).

After a full review of the federal statutory framework, the District

Court concluded that Congress had occupied the field of “unauthorized-

alien fraud in obtaining employment.” 1-ER-29. Appellants do not

directly contest this finding. Instead, they argue, irrelevantly, that

Congress has not fully occupied the field of identity theft generally.

AOB 22-33. Appellants’ focus on the field of identity theft

misapprehends the District Court’s analysis and the reason for its

reliance on statutes such as 18 U.S.C. § 1028.

1. Congress has fully occupied the field of fraud in response to the federal employment verification system

There are few areas where the federal interest is more dominant

than in immigration. Federal control over immigration policy is

necessary because “[i]mmigration policy can affect trade, investment,

tourism, and diplomatic relations for the entire Nation, as well as the

perceptions and expectations of aliens in this country who seek the full

protection of its laws.” Arizona, 132 S. Ct. at 2498. In an exercise of its

“broad, undoubted power” over immigration, id., in 1986, Congress

created a “comprehensive” and “careful[ly] balance[d]” system

regulating the employment of undocumented immigrants, id. at 2504-

05, that is now “central” to the nation’s policy on immigration. Hoffman,


25

535 U.S. at 147. See supra at 4-6 (describing IRCA). As part of this

system, Congress anticipated that individuals might respond to IRCA

by using false documents to show eligibility to work and “provide[d] for

this reality” by equipping federal officials with multifaceted, versatile

tools to address fraud. 132 Cong. Rec. S16879-01 (statement of co-

sponsor Sen. Simpson).

First, IRCA amended 18 U.S.C. § 1546(b) pertaining to “Fraud

and misuse of visas, permits, and other documents” to allow criminal

sanctions for the use of a false identification document or making of a

false attestation for purposes of satisfying the employment verification

requirement. Pub. L. 99-603, § 103 (1986). It expanded the prohibition

on selling, making or using fraudulent immigration documents to

include those documents used “as evidence of authorized . . .

employment in the United States.” Id. (amending 18 U.S.C. § 1546(a)).

In addition, IRCA specifically designated the additional federal

criminal statutes—both newly amended and pre-existing—that could

be used to address fraud in the employment verification process. See

Pub. L. 99-603, § 101 (adding 8 U.S.C. § 1324a(b)(5) and listing certain

statutes related to fraud in Title 18, Sections 1001 [false statements],

1028 [fraud in connection with identity documents], 1546, and 1621

[perjury]).

Second, Congress created civil penalties for document fraud. 8

U.S.C. § 1324c allows an administrative law judge to impose a fine,

after a hearing, on any person or entity who knowingly “forge[s],”

“use[s]” or “attempt[s] to use” a document not belonging to the

possessor to satisfy the requirements of the Immigration and


26

Nationality Act (“INA”), including for purposes of obtaining

employment. 8 U.S.C. §§1324c(a)(1)-(4), 1324c(d).16 These are enforced

through a unified federal enforcement process that also covers the

INA’s employer sanctions and anti-discrimination provisions. See 8

U.S.C. § 1324a(e), 1324b(e)-(j), 1324c(d); 28 C.F.R. § 68.1.

Third, Congress has established immigration consequences for

fraud in the employment verification process. See, e.g., 8 U.S.C. §

1227(a)(3)(C)(i) (making “an alien who is the subject of a final order for

violation of section 1324c of this title [] deportable”); 8 U.S.C. §

1182(a)(6)(C) (making those who make false claims to citizenship,

including for purposes of establishing eligibility for employment,

inadmissible and thus ineligible for adjustment of status).

Considering all of this, the District Court correctly concluded that,

taken together, the federal provisions “evince an intent to occupy the

field of regulating fraud against the federal employment verification

system.” 1-ER-29. The District Court’s finding was consonant with the

Ninth Circuit’s precedent on analyzing the field preemptive effect of

federal immigration statutes. In its analysis in Valle del Sol, this Court

looked to (1) the comprehensiveness of the federal scheme, (2) the place

of the scheme within a larger regulatory structure, and (3) whether the

scheme directly evidenced an intent to limit the role of states. 732 F.3d

at 1026; see also Lozano v. City of Hazleton, 724 F.3d 297, 316 (3d Cir.

2013); Georgia Latino Alliance for Human Rights v. Governor of

16 Congress added these civil penalties to the federal framework

through the Immigration Act of 1990 (IMMACT), Pub. L. 101-649

(codified as 8 U.S.C. § 1324c).


27

Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012) (“GLAHR”); United States

v. South Carolina, 720 F.3d 518, 530-31 (4th Cir. 2013). Each of these

factors confirms that Congress has occupied the field of fraud in

response to the federal employment verification system.

First, the federal scheme addressing such fraud is extensive. As

set forth above, Congress “has imposed every kind of penalty that can

arise from an unauthorized alien’s use of false documents to secure

employment—criminal, civil and immigration[.]” 1-ER-29. Faced with a

similarly comprehensive federal scheme involving the harboring of

undocumented immigrants, this Court voided another Arizona criminal

law, A.R.S. § 13-2929. Valle del Sol, 732 F.3d at 1023-26 (finding federal

alien harboring scheme to be comprehensive because it included “a full

set of standards,” including graduated punishments); see also Lozano,

724 F.3d at 316–18; South Carolina, 720 F.3d at 531–32; GLAHR, 691

F.3d at 1267; United States v. Arizona, Case 2:10-cv-01413-SRB, Doc.

215 (filed Nov. 17, 2014); We Are America v. Maricopa County Bd. of

Sup’rs, 297 F.R.D. 373, 388–92 (D. Ariz. 2013). Like the alien harboring

scheme, the federal scheme for regulating fraud in the employment

verification process reflects careful consideration by Congress, providing

federal officials with a complete set of tools to address a range of

regulated conduct. See Valle del Sol, 732 F.3d at 1025-26.

Second, just as regulation of alien harboring is one part of a

broader “scheme governing the crimes associated with the movement of

aliens in the United States,” Valle del Sol, 732 F.3d at 1024, federal

regulation of fraud in employment verification is one part of a broader

policy framework regulating the employment of immigrants. See


28

Arizona, 132 S.Ct. at 2504 (identifying laws addressing fraud as part of

IRCA’s regulatory scheme); Hoffman, 535 U.S. at 148 (same).

Restrictions on fraud in employment verification, together with other

parts of the federal scheme regulating employment of undocumented

immigrants, constitute a “‘full set of standards’ designed to work as a

‘harmonious whole.’” Valle del Sol, 732 F.3d at 1025 (quoting Arizona,

132 S.Ct. at 2501). The overall scheme reflects a “careful balance”

designed to further the priorities of deterring employment of

undocumented immigrant workers while protecting them from

exploitation. Arizona, 132 S.Ct. at 2505.

Third, Congress evidenced its intent to limit states’ role in this

area by circumscribing the law enforcement use that may be made of

information submitted in connection with the verification process. See 8

U.S.C. § 1324a(b)(5) (restricting use to enforcement of the INA and

sections of the federal criminal code). “[8 U.S.C. §] 1324a(d)(2)(F)

provides in even clearer language that ‘[t]he [verification] system may

not be used for law enforcement purposes’” other than those

enumerated in the statute. Arizona, 641 F.3d at 358-59 (noting that this

prohibited Arizona from using the information to enforce a state law

criminalizing unauthorized work, S.B. 1070’s Section 5(C)); see also 8

U.S.C. §§ 1324a(d)(2)(C), (d)(2)(G), (b)(4) (containing further language

limiting copying and use of documentation).

Recently, the Fourth Circuit relied on two of the same federal laws

at issue here—8 U.S.C. § 1324c(a)(1)-(2) and 18 U.S.C. § 1546—to hold

that Congress has occupied the field of “creating, possessing, and using

fraudulent immigration documents.” South Carolina, 720 F.3d at 533.


29

Like Appellants here, South Carolina had argued that its state law,

which made it “unlawful for any person to display or possess a false or

counterfeit ID for the purpose of proving lawful presence in the United

States,” did not relate to the field of “alien registration” because it

instead addressed ordinary fraud. Id. (summarizing Section 6(B)(2) of

South Carolina’s Act 69). But the Fourth Circuit nevertheless found the

provision preempted. Id.17

The comprehensiveness of the federal scheme here, the place of

that scheme within a larger regulatory structure governing the

employment of undocumented immigrants, and the direct evidence of

Congress’s intent to prevent the employment verification requirements

from being appropriated for law enforcement goals outside of the federal

system all “demonstrate[] an ‘overwhelmingly dominant federal interest

in the field.’” Valle del Sol, 732 F.3d at 1026 (quoting GLAHR, 691 F.3d

at 1264). They impel the conclusion that Congress has fully occupied

the field.

17 Appellants try to distinguish this case from South Carolina and other

preemption precedents by arguing that they did not apply to U.S.

citizens. AOB 27. But, among other things, they ignore the fact that

South Carolina’s law did apply to U.S. citizens. Section 6(B) of Act 69

requires officers to investigate any person they reasonably suspect to be

unlawfully present by examining any number of documents, including a

state driver’s license. Act 69, 2011 S.C. Acts (S.B. 20). A U.S. citizen

asked for identification under this Section who presented a false

document would certainly have been in violation of the fraud provision

in Section 6(B)(2).


30

2. Appellants fail to acknowledge the federal scheme at issue or its Congressional intent, instead considering statutory provisions out of context

Appellants do not contest that Congress has completely occupied

the field of fraud to circumvent the employment verification system.

Instead, they make the straw man argument that Congress has not

occupied the field of identity theft. See, e.g., AOB 25-33. Appellees have

never contended, and the District Court did not hold, that Arizona’s

worker identity statutes are preempted because Congress occupied the

field of identity theft generally. Indeed, Arizona has other identity theft

statutes that Appellees have not challenged.

For example, Appellants take issue with the District Court’s

reliance on 18 U.S.C. § 1028, a statute dealing generally with identity

document fraud. They try to make something of the fact that the statute

can sometimes be used to prosecute fraud in connection with a violation

of state or local law. AOB 29-30. The fact that the statute can also be

used in contexts other than the employment of undocumented workers,

including in connection with state law, however, does not say anything

about whether Congress meant to preserve a role for the states in the

subset of cases that deal with immigration. Rather, the District Court’s

reliance on this statute was based on the fact that the statute was

incorporated into IRCA as one tool among several that could be used to

address fraud in response to the employment verification system. See,

e.g., 8 U.S.C. § 1324a(b)(5), (d)(2)(F). Appellants’ attempt to cherry-pick

individual provisions cited by the District Court and consider them out

of context undermines the notion that “the purpose of Congress is the


31

ultimate touch-stone in every pre-emption case,” see Medtronic, Inc. v.

Lohr, 518 U.S. 470, 485 (1996) (citation omitted), and should be

rejected.18

Appellants also take 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G) out of

their place in the larger structure of IRCA and argue that the explicit

mention of the Form I-9 means Congress somehow intended to carve

out an ability for states to prosecute undocumented workers so long as

they can avoid using the Form I-9. AOB 37-39. But Congress’s decision

to enact certain provisions limiting how documents would be used “‘does

not bar the ordinary working’” of preemption principles “or impose a

‘special burden’ that would make it more difficult to establish the

preemption of law falling outside” of those clauses. Arizona, 132 S. Ct.

at 2504-05 (quoting Geier, 529 U.S. at 869-872). Appellants’ belief that

these provisions should be read to be narrowing, rather than indicative

of Congress’s broader intent to occupy the field, is thus mistaken.19

More importantly, the fact that MCAO has opted to limit use of the

18 Appellants dismiss the preemptive effects of other parts of the federal

scheme, such as 18 U.S.C. §§ 1546(a), 1546(b) and 8 U.S.C. § 1324c,

with a simple declaration that they “apply only in the context of federal

immigration law.” AOB 39. This again mis-presumes the relevant field

is identity theft generally. 19 Indeed, even these provisions apply to not just the Form I-9, but “any

information employees submit to indicate their work status.” Arizona,

132 S. Ct. at 2504; see also supra at 23 n.15. An attempt to prosecute

the same workers using other employment documents they’ve filled out

falsely in order to be consistent with the information they submitted on

the Form I-9 would still constitute “use[]” of “[t]he [employment

verification] system” for a prohibited “law enforcement purpose[].” 8

U.S.C. § 1324a(d)(2)(F).


32

Form I-9 is irrelevant to Appellees’ facial challenge, since, as discussed

at supra Part I.A.2 above, the clear aim of the worker identity

provisions was to punish undocumented immigrants and there is no

indication that Arizona lawmakers were trying to legislate around

federal law.

Finally, Appellants make a circular argument that because a

person may be deported under federal removal statutes based on a

violation of Arizona’s worker identity provisions, Congress must have

intended for the provisions to coexist with IRCA. AOB 33-37. But the

fact that a (state or federal) conviction can lead to deportation does not

suggest any design by Congress (or this Court) to save an otherwise

preempted state law, or even determine which state convictions are

valid. Further, preemption was not raised in any of the Ninth Circuit

removal cases cited by Appellants, so those cases do not establish that

the underlying convictions were valid. If Appellants were correct in

their hypothesis that all state convictions encompassed in the generic

categories of crimes triggering removability cannot be preempted, then

even convictions that Appellants concede would be invalid—such as

convictions based on a Form I-9—would be included.

The District Court properly concluding the worker identity

provisions are likely field preempted.

C. Arizona’s Worker Identity Provisions are Conflict Preempted

This Court can also affirm the District Court’s preliminary

injunction on the grounds that the worker identity provisions conflict

with federal law. A state law is conflict preempted where, as here, it


33

“stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” Arizona, 132 S. Ct. at 2501

(citations omitted). Even if a challenged state law shares some similar

goals with the federal scheme, as here, the layering of additional and

different penalties on top of federal law can “undermine[] the

congressional calibration of force.” 1-ER-30-31 (quoting Crosby, 530 U.S.

at 380); see also Valle del Sol, 732 F.3d at 1027. Further, Arizona’s

creation of a separate scheme to punish undocumented workers because

they believed the federal government was not enforcing immigration

laws with sufficient vigor “divest[s] federal authorities” of exclusive

control over enforcement and allows prosecutors to bring cases

“unaligned with federal . . . priorities.” Valle del Sol, 732 F.3d at 1027.

Together, these conflicts “interfere with the careful balance struck by

Congress with respect to unauthorized employment of aliens” in IRCA.

Arizona, 132 S. Ct. at 2504.

Parsing the federal and state schemes, the District Court correctly

found that Arizona’s worker identity provisions were likely conflict

preempted. Appellants do not undermine this finding.

1. The Arizona provisions disrupt the congressional calibration of force by imposing additional and different penalties on unauthorized workers

Even when state and federal laws share overlapping goals, a

conflict in technique can give rise to preemption, as it “can be fully as

disruptive to the system Congress enacted as conflict in overt policy.”

Arizona, 132 S. Ct. at 2505 (quoting Motor Coach Employees v.

Lockridge, 403 U.S. 274, 287 (1971)). Despite significant clashes in


34

technique between federal law and the worker identity provisions,

Appellants make two meritless arguments as to why there is no conflict

here.

First, they suggest that even if there is a conflict in technique, the

Arizona provisions are not problematic because they “serve different

purposes” than IRCA. AOB 46-48. As discussed at length above, see

supra Part I.A.2, the worker identity provisions’ purpose and primary

effect is to regulate fraud by immigrants who are working without

authorization. Moreover, conflict preemption does not require an

identity of purposes between state and federal law.20 The law merely

says a conflict may arise due to an “inconsistency of sanctions”

irrespective of common purpose. Crosby, 530 U.S. at 379-80 (“The fact of

a common end hardly neutralizes conflicting means”).

Next, Appellants argue that there is no conflict because state and

federal laws “carr[y] similar penalties.” AOB 52-54. First of all,

Appellants do not address the District Court’s observation that

Arizona’s worker identity provisions include only a criminal sanction. 1-

ER-31. The federal scheme, on the other hand, provides federal

authorities with a range of possible actions depending on the

circumstances in each case, including criminal, civil and immigration

consequences. Id. In practice, the federal scheme relies heavily on civil

rather than criminal sanctions. See supra at 5-6. Because Arizona

20 Indeed, part of the problem flows from the contrast between Arizona’s

singular purpose to punish undocumented workers and IRCA’s pursuit

of a balance of statutory objectives with respect to the same individuals.

See infra Part I.C.2.


35

officials have no authority to impose civil or immigration penalties in

lieu of criminal punishment, Arizona’s scheme is devoid of such

versatility and in conflict with federal law. See Arizona, 132 S. Ct. at

2503 (finding conflict because state law “rules out probation as a

possible sentence (and also eliminates the possibility of a pardon)”); see

also Gould Inc., 475 U.S. at 286 (“conflict is imminent whenever two

separate remedies are brought to bear on the same activity”) (citations

omitted). Appellants not only fail to engage with this relevant body of

law, focusing narrowly on the possible sentences for a single federal

statute, 18 U.S.C. § 1028, they also unjustifiably dismiss the

inconsistencies they do identify. AOB 53.

Further, Appellants ignore the fact that Arizona law permits

unchecked criminal prosecution of individuals who Congress has

exempted from punishment. In the case of trafficking, Congress has

instructed that victims “should not be inappropriately incarcerated,

fined, or otherwise penalized solely for unlawful acts committed as a

direct result of being trafficked, such as using false documents, entering

the country without documentation, or working without

documentation.” 22 U.S.C. § 7101(b)(19). Arizona law contains no such

limitation. See Valle del Sol, 732 F.3d at 1028 (finding Arizona statute

conflict preempted in part because it contained no “safe harbor”).

Finally, Appellants do not address the well-established rule that

where Congress has reserved exclusive authority over a field to federal

officials, a state’s imposition of its own, additional penalties for the

same conduct, even if harmonious, is impermissible. Arizona, 132 S. Ct.


36

at 2502.21 The cases cited by Appellants do not deal with this situation.

See, e.g., California v. ARC Am. Corp., 490 U.S. 93, 105 (1989) (noting

in that case that there was no “clear purpose of Congress” that would

render states’ imposition of additional liability preempted).

2. Arizona’s worker identity provisions intrude on the federal government’s exclusive prosecutorial power and permit prosecutions unaligned with federal priorities

Where Congress has reserved exclusive authority over an area to

federal officials, a state’s creation of its own, distinct enforcement

scheme creates a conflict for the additional reason that it “divest[s]

federal authorities of the exclusive . . . prosecutorial power, and thus

discretion,” to pursue prosecutions consistent with federal priorities.

Valle del Sol, 732 F.3d at 1027. Indeed, Arizona’s worker identity

provisions “create an independent scheme of prosecution and judicial

enforcement outside the control of the federal government.” United

States v. S. Carolina, 840 F. Supp. 2d 898, 926-27 (D.S.C. 2011) (holding

state law conflict preempted for that reason), modified in part on other

grounds, 906 F. Supp. 2d 463 (D.S.C. 2012), aff’d, 720 F.3d 518 (4th Cir.

2013); see also Valle del Sol, 732 F. 3d at 1027 (analogous state laws

“give[] state courts the power to interpret [the challenged state law]

unconstrained by how federal courts have interpreted the scope of”

federal law) (citing GLAHR, 691 F. 3d at 1266).

21 While this is also a rule of field preemption, field and conflict

preemption are better understood as not “rigidly distinct” categories,

but rather, overlapping and interrelated. Crosby, 530 U.S. at 391 n. 6

(2000).


37

State interference with federal regulation of fraud in the

employment verification system is especially problematic because

federal officials must balance enforcement of fraud provisions not only

against other priorities reflected in the INA, but also against

enforcement of labor protections and international agreements

governing the rights of immigrant workers. Nat’l Ctr. for Immigrants’

Rights, Inc. v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990) (IRCA’s

scheme “balances specifically chosen measures discouraging illegal

employment with measures to protect those who might be adversely

affected”), rev’d on other grounds, 502 U.S. 183. Critically, IRCA

recognizes that undocumented workers should be treated less severely

than the employers that hire them and carefully limited the penalties

that would be imposed on workers, “who already face the possibility of

employer exploitation because of their removable status.” Arizona, 132

S. Ct. at 2504; see also supra at 6-7 (describing other evidence of federal

intent to protect immigrant workers).

Prosecutorial discretion and versatility are critical to federal

officials’ ability to pursue the “delicate balance of statutory objectives”

embodied in the federal scheme. Buckman, 531 U.S. at 348. Preventing

further exploitation of unauthorized workers is a key consideration

under IRCA. Consistent with the statutory scheme, ICE has relied

heavily on civil, rather than criminal, measures, and prioritized the

prosecution of employers. See supra at 5-6. Federal authorities are also

required to follow policies that encourage undocumented immigrants

who experience labor violations to cooperate with authorities. Id. at 6-7.


38

Appellants argue that prosecutorial power should be handed over

to countless local prosecutors in Arizona—and in potentially 49 other

states—who are free to disregard federal policies and priorities. One

need look only to the campaign of worksite operations that Maricopa

County law enforcement officials carried out to see the obvious

interference this creates “with the careful balance struck by Congress

with respect to the unauthorized employment of aliens.” Arizona, 132 S.

Ct. at 2504; see supra at 7-8. In contrast to the federal scheme, the focus

of criminal enforcement in Maricopa County has been not on employers

but on undocumented workers, a group Congress specifically elected not

to prioritize. The operations have spread fear throughout the immigrant

community and put workers who have experienced labor violations in

an even more vulnerable position than before. See supra at 8; see also

14-ER-3193-94, de la Fuente Decl. ¶¶9-11 (workers at the Arizona

Workers Rights Center have been deterred from asserting workplace

rights).22

The Ninth Circuit recently confirmed that state policies that

interfere with congressional intent to grant discretion to the Executive

“stand[] as an obstacle to the accomplishment and execution of the full

22 In briefing below, Appellant Maricopa County Attorney William G.

Montgomery further confirmed the departure of his office’s practices

from federal policy. He declared that MCAO prosecutors would not

consider a person’s immigration situation when prosecuting cases under

the worker identity provisions. See CR 74 at 18-19. Thus, victims of

trafficking and serious workplace violations that would be deprioritized

in the federal system to encourage them to cooperate with law

enforcement would receive no consideration of that fact from MCAO and

be prosecuted as a felon, foreclosing pathways to lawful status.


39

purposes and objectives of Congress.” Ariz. Dream Act Coalition, 757

F.3d at 1063 (citations omitted); see also Buckman, 531 U.S. at 349

(“The FDA thus has at its disposal a variety of enforcement options that

allow it to make a measured response to suspected fraud upon the

Administration. This flexibility is a critical component of the statutory

and regulatory framework under which the FDA pursues difficult (and

often competing) objectives.”).

Notwithstanding all of the above, Appellants argue, based on dicta

from the plurality opinion in Chamber of Commerce v. Whiting, that

conflict preemption requires some “direct interference” with federal law

that is absent here. AOB 42-44, 54-55. Appellants misstate the meaning

of Whiting and its application to this case. In Whiting, the plaintiffs

challenged parts of LAWA that pertain to employers. 131 S. Ct. at 1973.

Plaintiffs had argued that the employer-focused provisions of LAWA

impermissibly “upset[] the balance” Congress struck in enacting IRCA

and were therefore conflict preempted. Id. at 1983. The plurality

opinion disagreed, distinguishing cases cited by plaintiffs as instead

involving “actions that directly interfered” with a federal program. Id.

Whiting did little more than reiterate the general principle that

preemption requires an “actual conflict” rather than a hypothetical one.

See, e.g., Geier, 529 U.S. at 884. At no point did the plurality opinion

purport to establish a new rule.

On the other hand, the Supreme Court, joined by this and other

circuits, has held that where Congress intends to reserve prosecutorial

power and discretion to federal authorities, a state law that allows for

separate sanctions outside of federal control does in fact, on its own,


40

conflict with federal law. Buckman, 531 U.S. at 350 (“[s]tate-law fraud-

on-the-FDA claims inevitably conflict” with federal scheme); see also

Arizona, 132 S. Ct. at 2503; Valle del Sol, 732 F.3d at 1027; GLAHR,

691 F.3d at 1266. Such a finding would have been unlikely in Whiting,

given the express savings clause in IRCA that allows states to regulate

employers through “licensing and similar laws.” 131 S. Ct. at 1984

(quoting 8 U.S.C. § 1324(h)(2)).

Further, Whiting noted that in “implement[ing] the sanctions that

Congress expressly allowed Arizona to pursue through licensing laws . .

. Arizona went the extra mile in ensuring that its law closely tracks

IRCA's provisions in all material respects.” Id. at 1981. That is far from

the case here with the worker identity provisions, which impose

different penalties than federal law and permit felony prosecutions

against individuals that federal law has exempted or deprioritized for

punishment. See supra at 35-36, 38-39.

D. The Worker Identity Provisions are Unconstitutional in All Their Applications

Appellants argue, based on United States v. Salerno, 481 U.S. 739

(1987), that the worker identity provisions are not facially preempted

because there may be some applications that do not implicate the

federal scheme. AOB 20-22 (disagreeing with District Court’s rejection

of this argument). But Salerno ensures only that an otherwise valid

statute will not be voided because of the risk that it might sometimes be

applied unconstitutionally. 481 U.S. at 745. Here, Arizona’s worker

identity provisions were preempted from the moment they were enacted.

This Circuit recently rejected a similar argument in Lopez-Valenzuela v.


41

Arpaio. 770 F.3d 772, 789 (9th Cir. 2014) (en banc). As the Court

explained, “[b]ecause Proposition 100 is not carefully limited as

Salerno’s heightened scrutiny test requires, the entire statute fails . . .

and would thus be invalid in all of its applications.” Id. (citations

omitted).

Appellants point to the Supreme Court’s decision in Arizona to

overturn the preliminary injunction against Section 2(B) of S.B. 1070

and suggest that the challenged provisions could similarly be read in a

way to avoid constitutional problems here. AOB 21. First, as the Third

Circuit recognized in Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir.

2013), cert. denied, 134 S. Ct. 1491 (2014), “no part of the majority

opinion in Arizona . . . references Salerno at all.” Id. at 313 n.22

(discussing Salerno’s interaction with preemption challenges).

Moreover, in Arizona, the Supreme Court was dealing with a pre-

enforcement challenge. Arizona, 132 S. Ct. at 2510. Here, the worker

identity provisions “have been fully implemented” and they have not

been implemented in any “narrower, constitutional manner.” Lopez-

Valenzuela, 770 F.3d at 789; see supra at 21-23. Indeed, the provisions

could not be implemented in a constitutional manner without

eviscerating the meaning of H.B. 2779 § 1 and H.B. 2745 § 1—thus, no

“reasonable or readily apparent narrowing construction” is available.

Lopez-Valenzuela, 770 F.3d at 789.23

23 Amici for Appellants contend that the District Court should have

considered the possibility of severance to enjoin only “the state

prosecution of fictitious identification documents when being used to

satisfy and at the time of the federal employment verification process.”


42

II. The District Court Had Ample Grounds to Find that the Remaining Equitable Factors Weigh in Favor of a Preliminary Injunction

A. Appellees Will Suffer Irreparable Harm

The District Court found that a preliminary injunction was

appropriate because Puente members would otherwise suffer

irreparable harm from illegitimate prosecution. 1-ER-33-35.24 The

Court further found that Appellees were prudent rather than dilatory in

seeking relief. Id. at 34-35. Appellants fail to demonstrate that either of

these findings were “illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.” See United

States v. Hinkson, 585 F.3d 1247, 1251 (2009) (en banc) (describing

clear error review).

BOA 15. This not only reflects an overly narrow reading of the

preempted field, but a misunderstanding of severance doctrine.

Severance principles do not allow a court to rewrite a challenged law,

only to strike invalid provisions while leaving any valid provisions

intact. See, e.g., State v. Prentiss, 163 Ariz. 81, 86 (1989). Here, the

District Court enjoined the invalid provisions of A.R.S. § 13-2008 and §

13-2009 only. 24 As the District Court noted, because Puente’s members have shown

irreparable harm, “the Court need not address the likelihood of

irreparable harm to other Plaintiffs.” 1-ER-35 n.9. Thus, Appellants’

arguments about harm to Puente as an organization, see AOB 56-57,

are not at issue in this appeal. Were the Court to reach the issue, it

should find that Puente as an organization made a clear showing of

irreparable harm. See 14-ER-3187-91, Garcia Decl. ¶¶16-41; Valle del Sol, 732 F.3d at 1018, 1029. Additionally, Appellee Rev. Susan

Frederick-Gray demonstrated irreparable harm because her municipal

tax dollars were being used to enforce unconstitutional laws. See 14-ER-

3205-06, Frederick-Gray Decl. ¶¶5-14; We Are America, 297 F.R.D. at

385-86.


43

1. The District Court correctly found that members of Puente were at risk of unconstitutional prosecutions

It is a “well established” principle “that the deprivation of

constitutional rights ‘unquestionably constitutes irreparable injury.’”

Melendres, 695 F.3d at 1002 (quoting Elrod v. Burns, 427 U.S. 347, 373

(1976)). In particular, plaintiffs may establish a likelihood of

irreparable harm by demonstrating a “credible threat of prosecution”

under a preempted state law. Valle del Sol, 732 F.3d at 1029; see also

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992);

GLAHR, 691 F.3d at 1269.

The District Court found that “three members of Puente face[d] a

credible threat of prosecution” under the worker identity provisions. 1-

ER-34; see also 1-ER-15-17; 2-ER-102-116. It observed that “irreparable

injury” would “stem[] from the emotional, reputational, and work-

related harms that accompany an illegitimate prosecution.” 1-ER-34.

Appellants do not contest that some of Puente’s members are in

violation of the worker identity provisions or that prosecution would

cause them irreparable harm. They argue only that the likelihood of

future prosecution is not sufficiently “real or immediate” because

Appellants did not made a “direct” or “specific” threat against the

members. AOB 57-58.

Appellants’ argument, based on City of Los Angeles v. Lyons, 461

U.S. 95, 111 (1983), is foreclosed by controlling law that Appellants do

not address. In Oklevueha, this Court set forth the test by which it

evaluates whether a “genuine threat of imminent prosecution” exists.


44

676 F.3d at 835. The Court considers: “(1) whether the plaintiffs have

articulated a ‘concrete plan’ to violate the law in question; (2) whether

the government has communicated a specific warning or threat to

initiate proceedings; and (3) the history of past prosecution or

enforcement under the statute.” Id. (citation omitted). Thus, the

presence of a specific threat of enforcement is one way that a plaintiff

can demonstrate a likelihood of prosecution, but not the only way.

Indeed, as the District Court noted, whether prosecuting

authorities have communicated a specific warning “is less relevant

when there is a clear history of enforcing the law in question.” 1-ER-17.

“A history of past enforcement against parties similarly situated to the

plaintiffs cuts in favor of a conclusion that a threat is specific and

credible.” Lopez v. Candaele, 630 F.3d 775, 786-87 (9th Cir. 2010). Here,

there was a substantial history of vigorous enforcement. See supra at 7-

8; 1-ER-16 (summarizing prosecution data); see also 14-ER-3186-90,

Garcia Decl. ¶¶ 13, 35-37.25

Lyons does not hold otherwise. In Lyons, the Supreme Court found

that the plaintiff faced a low risk of being subjected again to a

chokehold by the Los Angeles Police Department (“LAPD”) because that

would only occur following an unlikely chain of events. 461 U.S. at 105-

25 Though MCSO, with a decision on the preliminary injunction

imminent, decided to “voluntarily enjoin[] themselves” from enforcing

the worker identity provisions, 2-ER-69, and tried to argue this mooted

Appellees’ case, Appellants “identified nothing that would prevent the

MCSO from resuming enforcement . . . at a later date.” 1-ER-17-18.


45

06.26 But the contingency in this case—whether Puente members will

be arrested and prosecuted for violating the worker identity

provisions—was far more likely to materialize given the District Court’s

finding that Appellees “ha[d] not only ‘articulated a concrete plan to

violate the law in question’ . . . they [we]re currently violating it.” 1-ER-

16 (quoting Oklevueha, 676 F. 3d at 835).27

26 Though the plaintiff in Lyons alleged that the LAPD routinely applied

the chokehold, he did not try to show that the chokehold was part of an

official policy or practice. Lyons, 461 U.S. at 105-06. That distinction

from this case is crucial. See LaDuke v. Nelson, 762 F.2d 1318, 1324

(9th Cir. 1985) amended, 796 F.2d 309 (9th Cir. 1986). 27 Appellants’ amici contend—for the first time on this appeal—that the

District Court’s preliminary injunction was improper under Younger v. Harris, 401 U.S. 37 (1971). BOA 12-14. First, that argument was

waived by Appellants below, since it was not raised at any point and the

State voluntarily submitted to federal jurisdiction. See Kleenwell Biohazard Waste & Gen. Ecology Consultants v. Nelson, 48 F.3d 391,

394 (9th Cir. 1995) (state “waives its right to raise Younger on appeal

when, as here, ‘it expressly urge[s] ... the District Court to proceed to an

adjudication of the constitutional merits,’” even where “‘it might have

had a tenable claim for abstention’”) (citation omitted); 1-SER-230-232

(stipulation reflecting Arizona’s decision to be substituted in as a

Defendant in this action to defend the constitutionality of the

challenged provisions). That it is amici raising the issue makes no

difference for the waiver analysis. See Lopez v. Pac. Mar. Ass’n, 657

F.3d 762, 766-67 (9th Cir. 2011) (refusing to consider new issues not

presented to court below where urged to by amici). Second, Younger abstention only applies to cases where the plaintiff

urges a federal court to intervene in an ongoing state judicial

proceeding. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).

None of the Puente members who submitted declarations were in

criminal proceedings. 2-ER-102-116. Puente’s request was that the

District Court enjoin future proceedings. See Doran v. Salem Inn, Inc.,


46

2. The passage of time does not undermine the finding of irreparable harm to Puente

Appellants also try to suggest that the passage of time between

the enactment of the worker identity provisions and filing of this suit

“demonstrates the lack of need for speedy action.” AOB 59-60 (quoting

Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir.

1984)). The District Court rejected this argument, concluding that

“[d]elay is not decisive[.]” 1-ER-35.

Indeed, “delay is but a single factor to consider in evaluating

irreparable injury; courts are loath to withhold relief solely on that

ground.” Arc of Cal., 757 F.3d at 990 (citation omitted). As the District

Court observed, “case law concerning the preemptive effect of federal

immigration law” has evolved significantly over the past few years. 1-

ER-35. Key precedents on which Appellees’ preliminary injunction

motion relied—including Arizona and Valle del Sol—were only recently

decided. Appellees also presented evidence of other factors that

explained the passage of time: the impact of the provisions on Puente

was cumulative, they hoped to resolve their grievances through non-

litigation political advocacy efforts, and it took time for them to find

attorneys with the expertise and capacity to represent them pro bono. 1-

SER-57-58 Supp. Garcia Decl. ¶¶5-15. Under these circumstances,

Appellees’ decision to wait “until a credible case for irreparable harm

[could] be made [wa]s prudent rather than dilatory.” 1-ER-35 (citation

omitted); see also Arc of Cal. 757 F.3d at 991 (where delay is explained

422 U.S. 922, 930 (1975) (preliminary injunction against future

proceedings not subject to Younger).


47

by other factors, its “significance . . . in determining irreparable harm

may become so small as to disappear);28 Rodriguez v. Robbins, 715 F.3d

1127, 1145 n.12 (9th Cir. 2013) (delay explained in part by need to

await final resolution of controlling case law).

B. The District Court Correctly Found That the Equities Tipped Sharply in Favor of Appellees and That An Injunction is in the Public Interest

Finally, the District Court found that the equities and public

interest favored a preliminary injunction. 1-ER-35-36. It did not reach

this conclusion lightly. While Appellants would have this Court

substitute its judgment for that of the District Court, that is not the

proper role of the appellate court. See Rucker v. Davis, 237 F.3d 1113,

1118 (9th Cir. 2001)�rev’d on other grounds sub nom. Dep’t of Hous. &

Urban Dev. v. Rucker, 535 U.S. 125 (2002) (“[W]e will not second guess

whether the court correctly applied the law to the facts of the case,

which may be largely undeveloped at the early stages of litigation.”);

Williams v. Zbaraz, 442 U.S. 1309, 1312 (1979) (“Balancing the equities

is always a difficult task, and few cases are ever free from doubt.”).

Of course, no equitable or public interest can come from enforcing

an unconstitutional law. Ariz. Dream Act Coal., 757 F.3d at 1069; Valle

del Sol, 732 F.3d at 1029; Melendres, 695 F.3d at 1002. By

preliminarily enjoining the worker identity provisions, the District

Court halted the disruption to the federal system that Arizona’s laws

28 Appellants argue that Arc of California is distinguishable because it

dealt with statutory changes rather than shifts in case law. AOB 59-60.

That is a distinction without a difference.


48

were causing and ensured that Puente members would not be

irreparably harmed by “illegitimate prosecution.” 1-ER-34-36.

Further, “the injunction does not leave [Appellants] unequipped to

combat [identity theft].” 1-ER-36. The preliminary injunction voids only

A.R.S. § 13-2009(A)(3) and the portion of A.R.S. § 13-2008(A) that

addresses actions committed “with the intent to obtain or continue

employment.” 1-ER-36. As the District Court noted, the remainder of

A.R.S. §§ 13-2008 and 13-2009 are still intact and Appellants can use

those provisions against any individuals who use the identity

information of another person with the purpose of causing harm or

financial loss. 1-ER-35.29 Further, Appellants’ contention that

individuals who commit employment-related identity theft for purposes

other than to circumvent the federal employment verification system

are “immune” from prosecution, AOB 62, is simply incorrect. Arizona

officials can likely continue to charge those individuals under the state

forgery statute, A.R.S. § 13-2002, among other provisions. Finally,

29 For this reason, amici’s argument about Hernandez v. Lynch, 167

P.3d 1264 (Ariz. Ct. App. 2007), BOA 6-7, 11, is inapposite. The District

Court did not enjoin Arizona law enforcement officers prosecuting an

individual who uses the identity information he or she presented to

obtain employment to later engage in other unlawful conduct based on

statutes addressing that other conduct. Further, this Court did not

implicitly decide, as amici contend, BOA 6-7, that the worker identity

provisions were valid when it ruled Arizona’s Proposition 100 bail law

to be unconstitutional in Lopez-Valenzuela. Even if Lopez-Valenzuela

discussed Hernandez, the constitutionality of the worker identity

provisions was not at issue in either case. See Lopez-Valenzuela, 770

F.3d at 775; Hernandez, 167 P.3d at 1265. Mr. Hernandez was not even charged with a violation of the worker identity provisions. Hernandez, 167 P.3d at 1265-66.


49

Appellants’ own record evidence shows that individuals who have

difficulty accessing benefits because another person has used their

identity information are not without a remedy—they can report this

occurrence to the Social Security Administration and Internal Revenue

Service. 3-ER-296-97.

Nonetheless, Appellants suggest that the preliminary injunction

harms the public and has “left everyone in Arizona more vulnerable” to

identity theft. AOB 61-62.30 Appellants’ amici add that the injunction

ignores the procedural, privacy, and substantive rights of identity theft

victims. BOA 3.31 However, the District Court did not fail to consider

the impact on those whose information would be used. 1-ER-36

(recognizing that the “crime of identity theft affects the lives of many

30 Appellants err in asking the Court to take judicial notice of their

Appendix of 229 cases that they claim were (1) dismissed in response to

the preliminary injunction, and (2) in 219 cases, involved victims. AOB

10, 61. Judicial notice is only available for matters that are beyond

“reasonable dispute.” Fed. R. Evid. 201(b); see also Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Appellants have not

demonstrated that their factual assertions about the cases are beyond

reasonable dispute, and do not even supply the public records

themselves, cf. Fed. R. Evid. 201(c)(2), but merely a list of cases. 31 Citing miscellaneous authorities, Appellants’ amici argue that the

District Court violated victims’ procedural rights. But the federal Crime

Victim’s Rights statute does not identify any rights that were disturbed

by the District Court’s decision. Further, Morris v. Slappy, 461 U.S. 1,

14 (1983) deals with consideration of the impact on victims in

connection with new criminal trials and Kenna v. U.S. Dist. Court for C.D.Cal., 435 F.3d 1011, 1018 (9th Cir. 2006) deals with victims’

opportunity to give an oral statement at sentencing. None of those

procedural issues are implicated here.


50

Arizonans”). It simply concluded that Appellants may not violate the

Constitution in an effort to address these harms.

III. The District Court’s Finding Regarding the County’s Liability Should Not Be Disturbed

A. The Issue of the County’s Monell Liability Is Not Appealable at This Stage

Appellant Maricopa County seeks the opportunity on this limited,

interlocutory appeal of the preliminary injunction to have this Court

exercise pendent appellate jurisdiction over the issue of its liability. The

Court should decline the County’s request.

Because of the congressional directive that appellate review be

reserved for after a final judgment, rulings that do not independently

qualify for interlocutory appeal under 28 U.S.C. § 1292(a)(1) may not be

reviewed unless those issues are “inextricably intertwined with” or

“necessary to ensure meaningful review of” the preliminary injunction.

Meredith v. Oregon, 321 F.3d 807, 812-13 (9th Cir. 2003) (quoting Swint

v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)). Referred to as

“pendent appellate jurisdiction,” this exercise of the Court’s authority

has been interpreted narrowly. Id. at 812; see also Poulos v. Caesars

World, 379 F.3d 654, 669 (9th Cir. 2004) (noting that “[r]are is the

ruling” that can meet the “very high bar” for pendent appellate

jurisdiction).

In Swint, the Supreme Court rejected an attempt by a county

commission to raise the issue of its Monell liability on an interlocutory

appeal by a Sheriff and two other individual defendants of an order on

qualified immunity, 514 U.S. at 51. Id. at 45. The Court found, among


51

other things, that the commission’s liability was not “inextricably

intertwined with” the lower court’s decision on qualified immunity,

since “[t]he individual defendants' qualified immunity turns on whether

they violated clearly established federal law [whereas] the county

commission's liability turns on the allocation of law enforcement power

in Alabama.” Id. at 51.32 “Two issues are not inextricably intertwined if

[the Court] must apply different legal standards to each issue.”

Meredith, 321 F.3d at 814 (citations omitted) (noting that issues must

“either (a) be so intertwined that we must decide the pendent issue in

order to review the claims properly raised on interlocutory appeal, or (b)

resolution of the issue properly raised on interlocutory appeal

necessarily resolves the pendent issue”). Similarly here, the test for a

preliminary injunction “bears no similarity at all” to the considerations

for Monell policymaker liability. Poulos, 379 F.3d at 671 (holding that

neither primary jurisdiction, Burford abstention, nor personal

jurisdiction were intertwined with class certification).

Nor is the question of the County’s Monell liability “necessary to

ensure meaningful review” of the preliminary injunction. Meredith, 321

F.3d at 813. In Meredith, a case involving jurisdiction over a Younger

abstention issue on appeal of a preliminary injunction, this Court

considered narrow circumstances warranting pendent jurisdiction

under this second prong, namely where: (1) the very benefit of a

pendent issue, such as immunity, would be “lost or severely eroded once

32 The Swint Court also rejected the possibility that reaching the Monell liability issue was “necessary to ensure meaningful review” of the

qualified immunity ruling. Id.


52

the suit is allowed to proceed past the motion stage of the litigation,” or

(2) it goes to an issue, such as jurisdiction or abstention, that calls into

question “the very power” of the district court to issue the rulin[g] under

consideration.” Id. at 816 (citations omitted). Neither is present here. As

the Supreme Court explained in Swint, the County’s assertion that the

Sheriff “is not its policymaker does not rank . . . as an immunity from

suit,” but is instead “a mere defense to liability . . . [that] may be

reviewed effectively on appeal from final judgment.” 514 U.S. at 43

(citations omitted).33 The County’s argument is also not one that

implicates the District Court’s jurisdiction.

In Poulos, the this Court declined pendent jurisdiction even where

a subset of defendants raised jurisdictional challenges, since the court

“would have retained jurisdiction over the class certification decision

regardless of whether it asserted personal jurisdiction over [those

defendants].” 379 F.3d at 672. An allegedly improperly enjoined

defendant is in no worse a position on interlocutory appeal than a

defendant forced to defend a class action in a court that she claims lacks

personal jurisdiction over her. Under this Court’s precedent, both can

attack the underlying order to which they object—in this case, the

preliminary injunction—but neither has a right to immediate relief on

ancillary issues that fall outside the “narrow . . . realm of pendent

appellate jurisdiction.” Id. at 669.

33 The Court made this statement in the context of ruling that the

decision on the county commission’s Monell liability was not a collateral

order. Though the County has not asserted that the District Court’s

ruling on Monell liability is a collateral order, this finding in Swint would foreclose such a possibility.


53

B. All Courts to Consider the Question Have Found the County Liable for Sheriff Arpaio’s Law Enforcement Decisions

If the Court reviews the Monell issue, it should affirm the District

Court’s carefully considered and twice-made holding that the County is

liable for the Sheriff’s official law enforcement decisions and policies. In

denying the County’s motion to dismiss and finding the County liable,

the District Court joined every other court to have considered the

question. See United States v. Maricopa Cnty., 915 F. Supp. 2d 1073,

1083-84 (D. Ariz. 2012) (finding as a matter of law that County is liable

for policies of the Sheriff); Mora v. Arpaio, No. CV-09-1719-PHX-DGC,

2011 WL 1562443, at *7 (D. Ariz. Apr. 25, 2011) (same); Lovejoy v.

Arpaio, No. CV 09–1912–PHX–NVW, 2010 WL 466010, at *12 (D. Ariz.

Feb. 10, 2010) (same); Ortega Melendres v. Arpaio, 598 F. Supp. 2d

1025, 1038-39 (D. Ariz. 2009) (same); 34 see also Flanders v. Maricopa

County, 54 P.3d 837, 847 (Ariz. App. 2002) (same as to jail

management);35 Guillory v. Greenlee County, No. CV 05–352 TUC DCB,

34 In addition, this Court recently ordered that the County be

substituted for the MCSO as a defendant after MCSO was found not to

be a jural entity in Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir.

2015). The County petitioned for a panel rehearing and an en banc

determination, arguing as it does here that it should not be liable due to

the County’s “horizontal” structure of governance. County’s Pet. for

Panel Reh’g and En Banc Determination, Melendres v. Arpaio, No. 13-

16285, Dkt. 77. The panel unanimously denied the County’s petition,

and no judge of this Court requested a vote. Id., Dkt. 87. 35 Though Flanders dealt with the Sheriff’s responsibility over the jails,

the County makes no argument as to why the result should be different

with respect to the Sheriff’s law enforcement duties. In Brewster v. Shasta County, this Court found it “require[d] little extension of” a case


54

2006 WL 2816600, at *4-5 (D. Ariz. Sept. 28. 2006) (same as to Greenlee

County).

A municipality is liable under Monell for the actions of “those

officials or governmental bodies who speak with final policymaking

authority for the [municipality] concerning the action alleged to have

caused the particular constitutional or statutory violation at issue.”

McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 (1997) (citation

omitted). Courts analyzing Monell policymaker liability look to whether

(1) “the official had final policymaking authority ‘concerning the action

alleged to have caused the particular constitutional or statutory

violation at issue’” and (2) the official was “the policymaker for the local

governing body for the purposes of the particular act.” Weiner v. San

Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (quoting McMillian,

520 U.S. at 785).

1. Sheriff Arpaio has final policymaking authority

As in McMillian, “the parties agree that Sheriff [Arpaio] has ‘final

policymaking authority’ in the area of law enforcement.” 520 U.S. at

785. “[T]o determine whether an official is a final policymaker, ‘courts

consider whether the official’s discretionary decisions are constrained

by policies not of that official’s making and whether the official’s

decisions are subject to review by the municipality’s authorized

policymakers.” Lytle v. Carl, 382 F.3d 978, 985 (9th Cir. 2004) (citations

omitted). The Sheriff’s duties include to “[p]reserve the peace” and to

involving sheriffs and jail management to hold that California counties

are also liable for sheriffs’ crime investigation policies. 275 F.3d 803,

807 (9th Cir. 2001), cert. denied, 537 U.S. 814 (2002).


55

“[a]rrest and take before the nearest magistrate for examination all

persons who attempt to commit or who have committed a public

offense.” A.R.S. § 11-441. Here, the County has acknowledged, there is

no other county entity or official that can review the Sheriff’s law

enforcement decisions. CR 141 at 4, 6 (stating that “the Sheriff’s policy

represents the policy that exists in Maricopa County” and that if the

Sheriff “decide[s] to enforce a criminal law, the [Board of Supervisors

(“Board”)] cannot stop [him]. Conversely, if [the Sheriff] decide[s] not to

enforce a criminal law, the [Board] cannot require [him] to reverse [his]

decisions”) (emphasis in original).

The County argues that because the Board cannot overrule the

Sheriff and force him to comply with court orders, “it makes no sense to

keep [the] County as a party defendant.” MCOB 14. Although Appellees

request only declaratory and injunctive relief and not damages, there is

at least one practical reason why the County’s participation as a

defendant is consequential—Appellees seek to halt the Board’s

expenditure of tax revenues to finance arrests, detentions and

prosecutions under the worker identity provisions. See id. at 9 n. 2

(citing A.R.S. § 11-201(A)(6) and explaining that the Board “determines

the budgets of all elected and appointed county officers”).36 In any

event, as the District Court observed, though the Board’s inability to

36 The District Court did not specifically reach the question of whether

this provided independent basis for keeping the County in the suit. 1-

ER-44-46. However, the availability of this alternative ground is yet

another reason why review of the Monell issue is not “necessary to

ensure meaningful review” of the District Court’s preliminary

injunction order. Meredith, 321 F.3d at 812-13.


56

control the Sheriff “might limit the County’s exposure to contempt or

other remedies if an injunction is disregarded,” it “does not alter the

fact that the County is a proper defendant under Monell.” 1-ER-46.

2. Sheriff Arpaio acts for the County in the area of law enforcement

The only remaining question, then, is whether Sheriff Arpaio

represents “the State or [] the county when [he] act[s] in a law

enforcement capacity.” McMillian, 520 U.S. at 785. Though a federal

question ultimately, this inquiry “depends on a careful and thorough

analysis of state [law].” Goldstein v. City of Long Beach, 715 F.3d 750,

753 (9th Cir. 2013), cert denied sub nom. Cnty. of Los Angeles, Cal. v.

Goldstein, 134 S. Ct. 906 (2014); see also Brewster, 275 F.3d at 806.

Relevant factors include whether the state or county indemnifies the

Sheriff for damages claims under § 1983, whether the Sheriff is labeled

a state or county official in state law, how the Sheriff is elected and

removed from office, and which level of government exerts relatively

greater control over the Sheriff. See generally McMillian, 520 U.S. at

787-92; Goldstein, 715 F.3d at 753-58; Brewster, 275 F.3d at 806-10.

The District Court correctly found that the Sheriff acts on behalf

of the County. First, the County concedes that a § 1983 claim for

damages against the Sheriff “would be considered a claim upon the

county” and that the County, as in Brewster, “is required to satisfy” a

judgment on such a claim. MCOB at 13-14 n.7; see also A.R.S. § 11-261.

In Brewster, a case where this Court found California sheriffs to be

county officers, the Court referred to this as a “crucial factor [that]


57

weighed heavily” in favor of county liability. 275 F.3d at 807 (citation

omitted).

Second, the Sheriff is identified as a county officer under the state

constitution and statutes. Ariz. Const. Art. XII, Sec. 3 (including the

sheriff in a list of “County officers”); A.R.S. § 11-401 (including the

sheriff in a list of “officers of the county”). In contrast, in McMillian, the

case cited by Appellants involving Alabama sheriffs, the constitutional

provision at issue listed sheriffs as state executive officers. 520 U.S. at

806.

Third, it is the voters of Maricopa County that elect the Sheriff,

and the Board is the sole judge of his qualifications. A.R.S. § 11-402.

Proceedings for his removal may be initiated by a county grand jury.

A.R.S. § 38-341 et seq.; see also Brewster, 275 F.3d at 808 (considering

initiation of impeachment proceedings by county grand jury as another

reason why California sheriffs are different than the Alabama sheriffs

in McMillian).

Fourth, the County exerts greater control over the Sheriff than

the state. The Board is empowered to “[s]upervise the official conduct of

all county officers . . . charged with assessing, collecting, safekeeping,

managing or disbursing the public revenues,” A.R.S. § 11-251(1), a

category that the County has impliedly acknowledged includes the

Sheriff. CR 55 at 14. The Board approves the Sheriff’s appointed

deputies and sets their salaries. A.R.S. § 11-409. It may compel his

attendance at their meetings and direct him to serve subpoenas,

notices, or citations. A.R.S. § 11-219. Furthermore, it “may require

[him] to make reports under oath on any matter connected with the


58

duties of his office, and may require [him] to give such bonds or further

bonds as may be necessary for the faithful performance of his respective

duties.” A.R.S. § 11-253; see also, e.g., Hounshell v. White, 199 P.3d 636

(Ariz. App. 2008).37 The County argues that Arizona exerts greater

control over the Sheriff because his powers and duties are set in state

statute and because he enforces state laws. MCOB at 11-12. But

California sheriffs also derive their powers from state statute and

enforce state laws, and this Court found them to be county officials.

Brewster, 275 F.3d at 808-09, 812.

The County suggests that the Sheriff makes policy for himself

only, MCOB at 10, 13; CR 141 at 4, and points to the “horizontal”

structure of County government to show that other court rulings finding

it liable were the result of “confusion and misunderstanding.” MCOB at

7, 9.38 But as the District Court emphasized, any limits on the Board’s

37 The County misstates the holding of Hounshell. See MCOB at 11. In

that case, the Arizona Court of Appeals affirmed that the board of

supervisors had the authority to require the sheriff to post a bond and

could remove the sheriff for failure to do so. Id. at 640-43. It held that

the board could not require the sheriff to pay a premium on the bond.

Id. at 644. 38 The County flouts the rules of practice by presenting organizational

charts of the “horizontal” Maricopa County and the “unitary” New York

City, see MCOB at 9-10 n. 3-4, Exs. A-B, that it never presented to the

District Court in connection with its motion to dismiss or its motion for

reconsideration. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074,

1077 (9th Cir. 1988) (citing Fed.R.App.P. 10(a)). Though the County

suggests the Court can take judicial notice of the charts, judicial notice

is only available for matters of public record that are beyond

“reasonable dispute.” Lee, 250 F.3d at 689 (quoting Fed. R. Evid.

201(b)). That is not the case here.


59

control over the Sheriff is “not dispositive” of its liability. 1-ER-4. The

task here is not to determine whether “a county official exercises certain

functions independently of other political entities within the county” but

whether he acts “for the county.” Brewster, 275 F.3d at 810 (emphasis in

original) (finding that provision strengthening the “separation of

powers” between the sheriff and board of supervisors “has no obvious

bearing on whether the sheriff should be understood to act for the state

or the county”); see also Goldstein, 715 F.3d at 755 (holding that a

court’s “task is not merely to weigh the amount of control that the

[state] and county board of supervisors possess over [the Sheriff];

instead, we must decide whether the [Sheriff] was acting on behalf of

the state or the county”) (emphasis in original). Here, the Sheriff most

certainly does act for the

CONCLUSION

For the reasons set forth herein, this Court should affirm the

District Court’s order.

Dated: Respectfully Submitted,

By /s/ Anne Lai

Anne Lai



Clinic


Irvine, CA 92616-5479

Jessica Myers Vosburgh

National Day Laborer

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��&RXQW\�


60

Organizing Network

2104 Chapel Hill Rd.

Hoover, AL 35216

Daniel J. Pochoda

ACLU Foundation of Arizona

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Cindy Pánuco

Joshua Piovia-Scott

Dan Stormer Hadsell Stormer & Renick LLP

127 N. Fair Oaks Ave., Ste. 204

Pasadena, CA 91103

Jessica Karp Bansal

National Day Laborer Organizing

Network

675 S. Park View St., Ste. B

Los Angeles, CA 90057

Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra

Maldonado, PLC

2637 North 16th St., Unit 1

Phoenix, AZ 85006

On the brief:

Joshua D. Bendor

Joel Edman

Attorneys for Appellees


61

CERTIFICATE OF COMPLIANCE

(F.R.A.P. 32(a)(7)(C))

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and

Ninth Circuit Rule 32-1, I certify that this APPELLEES’

CONSOLIDATED ANSWERING BRIEF is proportionately spaced,

has a typeface of 14 points, and contains 15,748 words.

Dated: /s/ Anne Lai

Anne Lai



Clinic


Irvine, CA 92616-5479

�6HSWHPEHU��


62

STATEMENT OF RELATED CASES

(9th Cir. Rule 28-2.6)

Appellees are not aware of any related cases within the meaning

of Rule 28-2.6 pending before this Court.

Dated: /s/ Anne Lai

Anne Lai



Clinic


Irvine, CA 92616-5479

��6HSWHPEHU��


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing

APPELLEES’ CONSOLIDATED ANSWERING BRIEF with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on September 17, 2015. I

certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: September 17, 2015 /s/ Anne Lai Anne Lai

63


AADDENDUM Circuit Rule 28-2.7

1. A.R.S. § 13-2008

2. A.R.S. § 13-2009






Documents

Puente’s Answering Brief in Ninth Circuit Preliminary Injunction Appeal