PHOENIX — County officials have agreed to drop an appeal of a ruling that
bars authorities in metropolitan Phoenix from charging immigrants who paid to be
sneaked into the country with conspiring to smuggle themselves.
Ten months ago, a judge prohibited Maricopa County Sheriff Joe Arpaio and
County Attorney Bill Montgomery from using the contentious tactic that expanded
the reach of Arizona’s 2005 smuggling law and led to complaints from immigrant
rights advocates that the statute was intended for smugglers, not their
Montgomery said Thursday that there was no likelihood that the county would
have won an appeal, given that the courts have ruled that immigration
enforcement is the province of the federal government. “It was a painful but
objective legal decision to decide,” Montgomery said.
The Board of Supervisors agreed Wednesday to a settlement that calls for the
county to drop its appeal in exchange for paying $675,000 in attorney fees for
the lawyers who challenged the legal tactic. The settlement, first reported by
The Arizona Republic, also calls for the lawyers who filed the challenge to drop
their appeal that sought to invalidate more than 1,000 convictions brought
against smuggling customers.
“I think they finally realized it was a fool’s errand,” Carlos Holguin, one
of the attorneys who challenged the tactic, said of county officials.
The smuggling law was passed in 2005 as lawmakers responded to voter
frustration over Arizona’s role as the nation’s then-busiest immigrant smuggling
hub. It marked Arizona’s second major immigration law and was followed in 2010
with a wide-ranging law that required police to make immigration checks in
certain cases, inspiring similar laws in Alabama, Georgia, Indiana, South
Carolina and Utah.
Lawyers challenging the Arizona prosecutions argued that the policy of charging
smuggling customers with conspiracy was trumped by federal law. Attorneys
defending the law contended that Arizona law allows people to be convicted of
conspiracy, even when they can’t be convicted of the crime itself.
U.S. District Judge Robert Broomfield ruled in September that the policy
criminalizes actions that the federal law treats as a civil matter.
Montgomery said Thursday that the ruling was so broad that his office hasn’t
been able to prosecute smugglers since the September decision.
Both sides had informed Broomfield they would appeal his ruling, but in the
end, never filed appellate briefs. Instead, lawyers on both sides focused on
settling the case.
“The sheriff has pursued laws that are on the books,” said Arpaio aide Jack
MacIntyre. “He will hand over for prosecutions cases for laws that are still on
The ruling marks yet another restriction on immigration enforcement efforts by
Arpaio, who has made immigration a central part of his political identity in
Washington stripped some of Arpaio’s officers of their power to make federal
immigration arrests in 2009, and a federal judge ruled in May 2013 that the
sheriff’s office had racially profiled Latinos in immigration and regular
traffic patrols. The sheriff continues to arrest immigrants in business raids in
which they have been charged with using fake or stolen IDs to get jobs.
Several weeks after the smuggling law took effect in August 2005, Andrew
Thomas, Maricopa County’s then-top prosecutor, issued a legal opinion requested
by Arpaio that said immigrants suspected of using smugglers could be charged as
conspirators in smuggling cases. In Arizona, only Maricopa County used the
conspirator interpretation for the smuggling law.
Thomas, who is now seeking the Republican nomination for governor, said in a
statement that the legal tactic was vital in confronting illegal immigration.
“The refusal to appeal and defend the law is a shameful surrender to the
liberal elites who are abetting illegal immigration and eroding our national
sovereignty,” Thomas said.