‘Stunning’ Clause In AZ Immigration Law Lets Citizens Sue Govt For Lack Of Enforcement

April 28, 2010 2:45 pm

A highly unusual provision of the Arizona immigration bill — and one that has flown largely under the radar until now — could take police resources away from violent crimes in favor of immigration enforcement, as well as triggering a flood of time-consuming lawsuits. One expert calls the provision “stunning.”

A clause of the bill, signed last week by Governor Jan Brewer, allows Arizona citizens to file suit against any government entity that “adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”In other words, Arizonans can sue government entities, state or local, if they believe those entities aren’t fully enforcing the law — including, of course, this new law itself. The government could be on the hook for penalties as high as $5000 per day.

That kind of explicit permission to sue the government for not enforcing the law is almost unheard of, according to Mark Miller, a professor at the University of Arizona Law School. “This kind of … private right of action for an executive decision,” — that is, a law enforcement policy adopted by the government — “is to my knowledge completely unknown, and to my mind, stunning,” Miller told TPMmuckraker.

The effect, said Miller, could be to “shut law enforcement down by taking all of their time and budget defending cases” brought by citizens who support the law — which has the backing of about 70 percent of Arizonans, according to recent polls.

It’s not an academic issue, either. Pima County Sheriff Clarence Dupnik said yesterday he planned not to enforce the law when it goes into effect — barring possible constitutional challenges — this summer, calling it “racist” and “disgusting.” Miller said he thinks it’s not unlikely that Dupnik’s office could face lawsuits from hundreds of Pima County supporters of the law.

To be sure, Jack Chin, another University of Arizona Law School expert, pointed out that the law makes plaintiffs pay attorneys’ fees if they lose — a requirement that could deter some people from bringing suit. (Ironically, the “plaintiffs pay” provision, said Chin, has its roots in another conservative cause: the effort to reduce frivolous lawsuits.) Still, both Chin and Miller say conservative lawyers could choose to foot the bill themselves, or advocacy groups could find poor people who are “judgment proof” to act as plaintiffs.

And, lawsuits aside, both men said that the clause sends a clear message to law enforcement that it should prioritize immigration enforcement — above even violent crimes — for fear of being sued. Chin, who has helped write alternative immigration legislation in the state, explained that law enforcement officers routinely have to make judgment calls about which laws to focus on, because there just isn’t enough capacity to constantly enforce every law on the books. Now, if a police officer receives a call about an illegal immigrant, and another call about a murder, he could be under strong pressure to respond first to the former call. “The clause seems to be saying: Don’t use the ordinary judgments that you use to figure out what to focus on,” said Chin. “Instead, focus on this, over and above rape, robbery and murder.”

More than anything, Chin continued, the clause acts as a kind of wake-up call for law enforcement. “They don’t usually put in direct liability the way this one does,” he said. “That’ll get people’s attention. It’s saying, we want you to focus on this. Take away from some of the other things you’re doing. Or else.”

As for the law as a whole — which has been criticized by everyone from President Obama to Karl Rove — Miller said that the story of its origins, draconian provisions, and controversial backers is so unlikely that if someone suggested writing a screenplay about it, he’d give them some advice: “Don’t go to Hollywood, because they wont believe you.”

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