Valle Del Sol Inc. v. Whiting

732 F.3d 1006

VALLE DEL SOL INCORPORATED; Coalicion De Derechos Humanos; United Food and Commercial Workers International Union; Border Action Network; Jim Shee; Unknown Party, Named as Jane Doe # 3 in Amended Complaint; John Doe # 1, proceeding under pseudonym; Luz Santiago; Arizona South Asians for Safe Families; Japanese American Citizens League; Local 5 Service Employees International Union; Southside Presbyterian Church; Tonatierra Community Development Institute; C.M., a minor; Asian Chamber of Commerce of Arizona; Service Employees International Union; Arizona Hispanic Chamber Of Commerce; Pedro Espinoza; Maura Castillo; Jose Angel Vargas, Plaintiffs–Appellees,

v. Michael B. WHITING; Edward G. Rheinheimer; Daisy Flores, Gila County Attorney, in her official capacity; Richard M. Romley, Maricopa County Attorney, in his official capacity; Matthew J. Smith, Mohave County Attorney, in his official capacity; Bradley Carlyon, Navajo County Attorney, in his official capacity; Sam Vederman, La Paz County Attorney, in his official capacity; Kenny Angle, Graham County Attorney, in his official capacity; Derek D. Rapier, Greenlee County Attorney, in his official capacity; David W. Rozema, Esq., Coconino County Attorney, in his official capacity; Barbara Lawall, Pima County Attorney, in her official capacity; James P. Walsh, Pinal County Attorney, in his official capacity; George Silva, Santa Cruz County Attorney, in his official capacity; Sheila S. Polk, Yavapai County Attorney, in her official capacity; Jon R. Smith, Yuma County Attorney in his official capacity; Joseph Dedman, Jr., Apache County Sheriff, in his official capacity; Bill Pribil, Coconino County Sheriff, in his official capacity; Rod Rothrock, Chief Deputy; John R. Armer, Gila County Sheriff, in his official Capacity; Preston J. Allred, Graham County Sheriff, in his official capacity; Steven N. Tucker, Greenlee County Sheriff, in his official capacity; Donald Lowery, La Paz County Sheriff, in his official capacity; Joseph M. Arpaio, Maricopa County Sheriff, in his official capacity; Tom Sheahan, Mohave County Sheriff, in his official capacity; Kelly Clark, Navajo County Sheriff, in his official capacity; Clarence W. Dupnik, Pima County Sheriff, in his official capacity; Paul R. Babeu, Pinal County Sheriff, in his official capacity; Tony Estrada, Santa Cruz County Sheriff, in his official capacity; Steve Waugh, Yavapai County Sheriff, in his official capacity; Ralph Ogden, Yuma County Sheriff, in his official capacity, Defendants,andState of Arizona; Janice K. Brewer, Intervenor–Defendants–Appellants.

No. 12–17152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 2013.

Filed Oct. 8, 2013.

Validity Called into Doubt

A.R.S. § 13–2929

Kelly A. Kszywienski (argued), John J. Bouma and Robert A. Henry, Snell & Wilmer L.L.P, Phoenix, AZ; Joseph Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix, AZ; Thomas C. Horne, Michael Tryon and Evan Hiller, Office of the Attorney General for the State of Arizona, Phoenix, AZ, for Intervenor–Defendants–Appellants.

Omar C. Jadwat (argued) and Dror Ladin, American Civil Liberties Union, New York, New York; Thomas A. Saenz, Victor Viramontes and Nicholás Espiritu, Mexican American Legal Defense and Educational Fund, Los Angeles, CA; Linton Joaquin, Karen C. Tumlin, Nora A. Preciado, Melissa S. Keaney and Alvaro M. Huerta, National Immigration Law Center, Los Angeles, CA; Nina Perales, Mexican American Legal Defense and Educational Fund, San Antonio, TX; Cecillia D. Wang, American Civil Liberties Union, San Francisco, CA; Chris Newman and Jessica Karp, National Day Labor Organizing Network, Los Angeles, CA; Justin Cox, American Civil Liberties Union, Atlanta, GA; Laboni Hoq, Maya Roy and Carmina Ocampo, Asian Pacific American Legal Center, Los Angeles, CA; Daniel J. Pochoda, James Duff Lyall and Kelly Joyce Flood, ACLU Foundation of Arizona, Phoenix, AZ; Marita Etcubafiez and Jessica Chia, Asian American Justice Center, Washington, D.C.; Stephen P. Berzon and Jonathan Weissglass, Altshuler Berzon LLP, San Francisco, CA; Aaron Leiderman, Munger, Tolles & Olson LLP, San Francisco, CA; Daniel R. Ortega, Ortega Law Firm, P.C., Phoenix, AZ; Bradley S. Phillips, Joseph J. Ybarra, Benjamin J. Maro, Lika C. Miyake and Margaret G. Ziegler, Munger, Tolles & Olson LLP, Los Angeles, CA, for Plaintiffs–Appellees.

Mark B. Stern (argued), Stuart F. Delery, John S. Leonardo, Beth S. Brinkmann, Michael P. Abate, Benjamin M. Schultz, Daniel Tenny and Jeffrey E. Sandberg, United States Department of Justice, Washington, D.C., for Amicus Curiae United States of America.

Lawrence J. Joseph, Washington, D.C., for Amicus Curiae Eagle Forum Education & Legal Defense Fund.

Michael M. Hethmon and Garrett Roe, Immigration Reform Law Institute, Washington, D.C.; Kris W. Kobach, Kobach Law, LLC, Kansas City, KS, for Amicus Curiae Immigration Reform Law Institute.

Stephen Nickelsburg, Carla Gorniak and Erin Louise Palmer, Clifford Chance U.S. LLP, Washington, D.C.; Henry L. Solano, Wilson Elser Moskowitz Edelman & Dicker, Denver, CO, for Amicus Curiae United Mexican States.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:10–cv–01061–SRB.

Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

PAEZ, Circuit Judge:

Plaintiffs challenge Arizona Revised Statutes § 13–2929, which attempts to criminalize the harboring and transporting of unauthorized aliens within the state of Arizona.¹ The district court granted the plaintiffs' motion for a preliminary injunction with respect to this provision on the basis that § 13–2929 is preempted by federal law. Arizona appealed. We conclude that the statute as written is void for vagueness under the Due Process Clause because one of its key elements—being “in violation of a criminal offense”—is unintelligible. We also find that the provision, however it is interpreted, is preempted by federal law and thus invalid under the Supremacy Clause. Therefore, we affirm the district court's grant of a preliminary injunction.

BACKGROUND

This case arises from the extensive litigation regarding Arizona's 2010 Senate Bill 1070 (“S.B. 1070”). S.B. 1070, which is comprised of a variety of immigration-related provisions, was passed in response to the growing presence of unauthorized aliens in Arizona. The stated purpose of S.B. 1070 is “to make attrition through enforcement the public policy of all state and government agencies in Arizona.” S.B. 1070 § 1. It does so by creating “a variety of immigration-related state offenses and defin[ing] the immigration-enforcement authority of Arizona's state and local law enforcement officers.” United States v. Arizona, 641 F.3d 339, 344 (9th Cir.2011), aff'd in part, rev'd in part,––– U.S. ––––, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012).

The subject of this appeal is Ariz.Rev.Stat. § 13–2929, which was contained in section 5 of S.B. 1070. Section 13–2929 attempts to criminalize ² transporting, concealing, harboring, or attempting to transport,conceal, or harbor an unauthorized alien, at least under certain circumstances. It also seeks to criminalize inducing or encouraging an unauthorized alien to come to or reside in Arizona. The full relevant text of the provision is reproduced here:

A. It is unlawful for a person who is in violation of a criminal offense to:

1. Transport or move or attempt to transport or move an alien in this state, in furtherance of the illegal presence of the alien in the United States, in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

2. Conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law.

3. Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

Ariz.Rev.Stat. § 13–2929(A). A violation of § 13–2929 is a class one misdemeanor carrying a fine of at least one thousand dollars. § 13–2929(F). A violation involving “ten or more illegal aliens” is a class 6 felony carrying a minimum fine of one thousand dollars for each alien involved. Id. The only exemptions to the statute are for child protective service workers, first responders, ambulance attendants, and emergency medical technicians acting in their official capacities. § 13–2929(E).

In order to place this appeal in context, we review some of the procedural history of the relevant litigation surrounding S.B. 1070. Before S.B. 1070 went into effect, both the private plaintiffs in the instant case and the United States, separately, filed suit challenging various provisions of the bill. As a result of that litigation, the district court preliminarily enjoined four provisions of S.B. 1070—sections 2(B), 3, 5(C), and 6—on preemption grounds. United States v. Arizona, 703 F.Supp.2d 980, 987 (D.Ariz.2010). The United States also challenged the provision that is the subject of this appeal, Ariz.Rev.Stat. § 13–2929, not on the basis of preemption, but on the grounds that it was an improper regulation of immigration and violated the Dormant Commerce Clause. The district court rejected this challenge to § 13–2929. Id. at 1003–04. Therefore, § 13–2929 went into effect on July 29, 2010.

Arizona appealed the district court's preliminary injunction. We affirmed, concluding that the provisions were preempted by federal immigration law. Arizona, 641 F.3d at 366. The Supreme...