Case 2:14-cv-01356-DGC Document 512 Filed 07/01/16 Page 1 of 8

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Mark Brnovich
Attorney General
Firm State Bar No. 14000
Brock Heathcotte, Bar No. 014466
Keith J. Miller, Bar No. 029885
Assistant Attorneys General
1275 West Washington Street
Phoenix, Arizona 85007-2997
Telephone: (602) 542-7664
Fax: (602) 542-8308
brock.heathcotte@azag.gov
keith.miller@azag.gov

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Attorneys for Defendant State of Arizona

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et. al.,

No. 2:14-cv-01356-PHX-DGC

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Plaintiffs,

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v.

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Joseph M. Arpaio, Sheriff of Maricopa

County, Arizona, in his official capacity; Bill
Montgomery, Maricopa County Attorney, in
his official capacity; Maricopa County,
Arizona; and the State of Arizona,

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DEFENDANT ARIZONAS
STATEMENT OF FACTS IN
SUPPORT OF MOTION FOR
SUMMARY JUDGMENT

Defendants.

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Defendant State of Arizona submits the following statement of facts in support of

its Motion for Summary Judgment.
1. In 1996, Arizona became the first State in the nation to criminalize identity

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theft. (Exhibit 1, 1996 Ariz. Legis. Serv. Ch. 205 (H.B. 2090)).

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2. Every other State as well as the federal government has followed Arizonas
lead. (Exhibit 2, Natl Conf. of State Legislatures, Identity Theft, available at
http://tinyurl.com/o23kxd6 (listing state identity theft statutes)); See, also,

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Identity Theft and Assumption Deterrence Act of 1998, Pub. L. 105-318, 3

(codified as amended at 18 U.S.C. 1028(a)(7)).
3. Many of the state statutes include express references to employment as a
motive for identity theft, just as Arizonas Identity Theft Laws do. (Exhibit 3,

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Ga. Code. Ann. 16-9-121.1(a); Mich. Comp. Laws Ann. 445.65(b)(i); N.D.

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Cent. Code 12.1-23-11(3); S.C. Code Ann. 16-13-510(C); Utah Code Ann.

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76-6-1102(2)(a)).

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4. Arrests and charges for identity theft in Arizona grew from approximately 300

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in 2001 to approximately 1,500 in 2007. (Exhibit 4, Arizona Criminal Justice

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Commission Statistical Analysis Center Publication, Identity Theft Arrest

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and Case Processing Data, 2013, Table 1, p. 8)(ER 3017).

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5. During this time frame, Arizona rose to the highest per-capita identity theft

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complaint rates in the nation, with employment-related identity theft

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comprising approximately one-third of those complaints. (Exhibit 5,

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Declaration of Maricopa County Attorney William G. Montgomery, and

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Exhibits thereto, pp. 4-5; Exhibit C, Consumer Fraud and Identity Theft

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Complaint Data, FTC, Feb. 2008; Exhibit D, FTC Consumer Sentinel

Network Data Book (Feb. 2009))(ER 136-137, 151-56).
6. Key Arizona legislators testified they enacted the Identity Theft Laws to
protect Arizonans from the growing scourge of identity theft for employment
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purposes, not to discriminate against anyone. (Exhibit 6, Deposition of

Russell Pearce, 39:2224; 40:111; 43:513; 218:1125, 219:12; 219:925;

220:217; 221:310; 222:1521; Deposition of Jon Kavanaugh, 120:618;

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211:525; 212:16; 212:1521; 212:2325; 213:112; Deposition of Ray

Barnes, 133:1123).
7. By 2014, employment-related identity theft comprised only 13% of
complaints, down from 33% in 2008. (Exhibit 5, Declaration of Maricopa

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County Attorney William G. Montgomery, and Exhibits thereto, pp. 4-5;

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Exhibit C, Consumer Fraud and Identity Theft Complaint Data, FTC, Feb.

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2008; Exhibit D, Consumer Sentinel Network Data Book, FTC, Feb. 2009)

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(ER 136-137, 151-156); Exhibit 7, FTC Consumer Sentinel Network Data

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Book (Feb. 2015)(available at http://tinyurl.com/qf2n857) p. 24.

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8. Enforcement of the Identity Theft Laws has been widespread and neutral.

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Between 2010 and 2014, the Maricopa County Attorneys Office filed

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approximately 974 employment-related identity theft cases in state criminal

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court. (Exhibit 8, Declaration of Maricopa County Custodian of Records

Deborah MacKenzie, pp. 4-5. (ER 180-81).
9. The criminal defendants included U.S. citizens, authorized aliens, and
unauthorized aliens. (Exhibit 5, Declaration of Maricopa County Attorney

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William G. Montgomery, pp. 6-7. (ER 138-39); Exhibit 9, Maricopa County

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prosecution records and Declaration of Sonja Kautzman, MCAO Paralegal

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Supervisor. (ER 664, 905 (U.S. citizens), 421 (authorized alien), 396, 708

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(unauthorized aliens); see also prosecutions identified in ER 335-364).

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10. Puentes own Executive Director recognizes that some unauthorized aliens
work in Arizona without using stolen identification. (Exhibit 10, Deposition
of Carlos Durazo Garcia, 264:14 265:5.

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11. One of the few pieces of LAWA legislative history that relates to the Identity

Theft Laws comes from Rep. Pearce. He explained the reason for supporting

these provisions in terms focusing on the harm that identity theft causes to its

victims, regardless of who the perpetrator is: I can show you the reports from

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George Vorhas from Harvard University and others that show the amount of

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damage that is done by the identity theft and what goes on when you use false

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social security numbers, false identity, tax fraud and all the other crime that

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are committed in there so there is a lot involved in identity theft. Did you

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know Arizona is number one in the nation in identify theft as it is many other

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crimes. . . . I would hate to see us lessen those crimes when the seriousness

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that they have on our community and families when identities are stolen and

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misused. April 3, 2007, A/V Recording Senate Appropriations Committee

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Hearing (Ex. 1 of Doc. 114; Doc. 119) and June 20, 2007 A/V Recording

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Conference Committee Hearing (Ex. 2 of Doc. 114; Doc. 119). (ER 3402 at

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3:16:50-3:17:37)(9th Cir. Dkt. 24)(A/V exhibit will be provided to the Court if

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requested).

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12. The legislative debate concerning imposition of class 3 felony sanctions for

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aggravated identity theft focused on deterrence of identity theft, protection of

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the people of Arizona, and justice for victimstraditional police power

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motivations for enacting these Laws. April 3, 2007 A/V Recording Senate
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Appropriations Committee Hearing (Ex. 1 of Doc. 114; Doc. 119) and June

20, 2007 A/V Recording Conference Committee Hearing (Ex. 2 of Doc. 114;

Doc. 119). (ER 3402 at 3:14:55-3:19:09) (9th Cir. Dkt. 24); May 23, 2007,

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A/V Recording Senate Comm. of the Whole Mtg. on H.B. 2779, at 29:05-

45:35 (9th Cir. Dkt. 27, 31)(A/V exhibit will be provided to the Court if

requested).

13. In 2004, Congress broadened the reach of Section 1028 in response to a

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significant escalation in identity theft complaints nationwide, specifically

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including employment-related identity theft. (Exhibit 11, H.R. Rep. No. 108-

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528, Identity Theft Penalty Enhancement Act, at 4 (2004); Pub. L. 108-275,

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Section 3).

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14. The Federal Trade Commission, which maintains a database of identity theft

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complaints, has testified before Congress that states have enacted their own

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identity theft laws and that FTC officials refer customers to other state and

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local authorities because local law enforcement is best suited to bring the

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perpetrator to justice. (Exhibit 12, Identity Theft: How to Protect and Restore

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Your Good Name: Hearing Before the Subcomm. on Tech., Terrorism, and

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Govt Info. of the S. Comm. on the Judiciary, 106th Cong. 10

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(2000) (statement of Jodie Bernstein, Director, Bureau of Consumer Prot.,

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Fed. Trade Commn) at unnumbered pp 2-3).

15. These referrals include cases of employment-related identity theft. (Exhibit 7,
FTC Consumer Sentinel Network Data Book (Feb. 2015) p. 24).

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16. In enacting Section 1028, Congress chose not to create a comprehensive

identity theft statute, but rather to complement state laws. (Exhibit 13, S.
Rep. 105-274, The Identity Theft and Assumption Deterrence Act, at 9

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(1998)).
17. Dr. Earls findings are limited to the absolute number of unauthorized alien
offenders in her set of employment-related identity theft/forgery cases
between 2005 and 2015. (Exhibit 14, Deposition of Jennifer Earl, Ph.D.,

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91:9-94:1).
18. Dr. Earl did not analyze and did not venture an opinion as to why these
absolute numbers would increase, decrease, or stabilize over time.
(Exhibit 14, Deposition of Jennifer Earl, Ph.D., 202:7-203:4).

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19. Even where her report uses the term disproportionate, it means only that one

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value is numerically greater than another. (Exhibit 14, Deposition of Jennifer

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Earl, Ph.D., 190:5-192:5).

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20. Specifically, disproportionate in her report does not imply that Defendants

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enforcement of the challenged statute is disproportionate to the offender

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groups rate of offending. (Exhibit 14, Deposition of Jennifer Earl, Ph.D.,

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109:4-110:12, 190:5-192:5, 212:1-13).

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Case 2:14-cv-01356-DGC Document 512 Filed 07/01/16 Page 7 of 8

RESPECTFULLY SUBMITTED this 1st day of July, 2016.

Mark Brnovich
Attorney General

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s/ Brock Heathcotte
Brock Heathcotte
Keith J. Miller
Assistants Attorney General
Attorneys for Defendant State of Arizona

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I certify that I electronically transmitted the attached document to the Clerks Office
using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to
the CM/ECF registrants this 1st day of July, 2016.
Honorable David G. Campbell
United States District Court
401 West Washington Street, SPC 58
Phoenix, AZ 85003-2158
Anne Lai
Sameer Ashar
University of California, Irvine School
of Law Immigrant Rights Clinic
401 East Peltason Drive, Suite 3500
Irvine, CA 92616-5479
Cindy Pnuco, Esq.
Hadsell Stormer & Renick LLP
128 North Fair Oaks Avenue
Pasadena, CA 91103
Daniel J. Pochoda
Joshua D. Bendor
ACLU Foundation of Arizona
3707 North 7th Street, Suite 235
Phoenix, AZ 85014

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Sarah Anchors
Jose Carrillo
Quarles & Brady, LLP
2 North Central Avenue
Phoenix, AZ 85004-2391
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Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra Maldonado, PLC
2701 East Thomas Road, Suite A
Phoenix, AZ 85016

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Douglas Irish
J. Kenneth Mangum
Ann Thompson Uglietta
Maricopa County Attorneys Office
Civil Services Division
222 North Central Avenue, Suite 1100
Phoenix, AZ 85004

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Michele M. Iafrate
Kate C. Nelson
Iafrate & Assoc.
649 North 2nd Avenue
Phoenix, AZ 85003
s/ Maureen Riordan
5147250

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Puente Arizona et al v. Arpaio et al, Docket No. 2:14-cv-01356 (D. Ariz. Jun 18, 2014), Court Docket

General Information

Court

United States District Court for the District of Arizona; United

States District Court for the District of Arizona

Federal Nature of Suit

Constitutionality of State Statutes[950]

Docket Number

2:14-cv-01356

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