Puente - Arizona - Et - Al - v. - Arpai Proposed Plaintiffs' Motion For Partial Summary Judgment and Memorandum of Points and Authorities

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 1 of 49
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Anne Lai (pro hac vice)

alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
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
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Telephone: (602) 229-5200
Jessica Karp Bansal (pro hac vice)

jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214
Attorneys for Plaintiffs

(Additional attorneys for Plaintiffs listed
on next page)
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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.,
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Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.
No. 2:14-cv-01356-DGC
LODGED: PROPOSED PLAINTIFFS
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT
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(ORAL ARGUMENT REQUESTED)
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Expedited Hearing and Consideration

Requested
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Additional Attorneys for Plaintiffs:

Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra

Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040
Cindy Pnuco (pro hac vice)

cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600
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Anne Lai (pro hac vice)

alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law Immigrant Rights Clinic
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Telephone: (602) 229-5200
Jessica Karp Bansal (pro hac vice)

jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
Network
Telephone: (213) 380-2214

(Additional attorneys for Plaintiffs listed
on next page)
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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.,

Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.
No. 2:14-cv-01356-DGC
PLAINTIFFS MOTION FOR PARTIAL
SUMMARY JUDGMENT AND
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
(ORAL ARGUMENT REQUESTED)
Expedited Hearing and Consideration
Requested
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Additional Attorneys for Plaintiffs:

Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
Network
Telephone: (215) 317-1481
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org
Maldonado, PLC
Phoenix, AZ 85016
Telephone: (602) 910-4040
Cindy Pnuco (pro hac vice)

cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Pasadena, CA 91103
Telephone: (626) 585-9600
TABLE OF CONTENTS
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Page(s)
TABLE OF AUTHORITIES.. v
MOTION............................................................................................................................. 1
MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 1
I.
INTRODUCTION ................................................................................................... 1
II.
BACKGROUND ..................................................................................................... 4
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III.
A.
The Federal Scheme Governing Employment of Undocumented

Immigrants.....................................................................................................4
B.
The Circumstances of Passage of H.B. 2779 and H.B. 2745 ....................... 7
C.
The County Defendants' Enforcement Campaign ........................................ 8
D.
Harm to Plaintiffs........................................................................................ 10
ARGUMENT ......................................................................................................... 11
A.
Legal Standard ............................................................................................ 11
B.
The Statutes Are Preempted as Applied by the MCSO and MCAO .......... 12
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1. The Systematic Criminal Prosecution of Undocumented Immigrants

Under State Law for Fraud in Response to the Federal Employment
Verification System is Field and Conflict Preempted ........................... 13
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2. The County Defendants Have a Policy and Practice of Enforcing the

Worker Identity Provisions and State Forgery Statute Against
Undocumented Workers.........................................................................17
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3. The Record Confirms That the County Defendants Punishment of

Undocumented Immigrants Has Been Purposeful ................................ 20
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4. Any Voluntary Cessation Does Not Preclude Relief ............................. 24
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C.
Plaintiffs Have Standing for the Relief They Are Seeking......................... 25
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1. Puente Has Associational and Organizational Standing ........................ 26
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a. Puente Has Associational Standing Based on the Threat of

Injury to its Members...............................................................26
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b. Puente Has Organizational Standing Based on Frustration of

Its Mission and Diversion of Resources .................................. 28
2. Plaintiffs Reverend Frederick-Gray, Reverend Russell Andrew
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Burnette, and Reverend Erin Tamayo Have Standing as Municipal

Taxpayers............................................................................................... 29
3. Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez Have

Standing to Seek Expungement............................................................. 29
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D.
1. Puente and the Taypayer Plaintiffs Are Entitled to a Permanent

Injunction Against the County Defendants' Preempted Enforcement
Practices.................................................................................................30
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2. Plaintiffs Cervantes Arreola and Estrada Fernandez are Entitled to a

Permanent Injunction Expunging Their Convictions ............................ 32
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E.
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Plaintiffs Meet the Other Requirements for Injunctive Relief .................... 30
IV.
The Court Should Grant an Injunction of Sufficient Scope to Ensure

Effective Relief to Plaintiffs ....................................................................... 33
CONCLUSION ..................................................................................................... .34
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TABLE OF AUTHORITIES
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Page(s)
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FEDERAL CASES
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986) ............................................................................................... 11
Arizona v. California
460 U.S. 605 (1984) ............................................................................................... 13
Arizona Dream Act Coal. v. Brewer
818 F.3d 901 (9th Cir. 2016) .......................................................................... passim
Armstrong v. Davis
275 F.3d 849 (9th Cir. 2001) ................................................................................. 17
Bell v. City of Boise
709 F.3d 890 (9th Cir. 2013) ................................................................................. 25
Bresgal v. Brock
843 F.2d 1163 (9th Cir. 1987) ............................................................................... 34
Buckman Co. v. Plaitniffs Legal Committee
531 U.S. 341 (2012) ............................................................................................... 15
Cammack v. Waihee
932 F.2d 765 (9th Cir. 1991) ................................................................................. 29
Celotex Corp. v. Catrett
477 U.S. 317 (1986) ............................................................................................... 11
Chaker v. Crogan
428 F.3d 1215 (9th Cir. 2005) ............................................................................... 30
City of Mesquite v. Aladdin's Castle, Inc.
455 U.S. 283 (1982) ............................................................................................... 25
Crosby v. Natl Foreign Trade Council
530 U.S. 363 (2000) ......................................................................................... 12, 13
Easyriders Freedom F.I.G.H.T. v. Hannigan
92 F.3d 1486 (9th Cir. 1996) ................................................................................. 34
Ecological Rights Foundation v. Pac. Lumber Co.
230 F.3d 1141 (9th Cir. 2000) ............................................................................... 26
Elrod v. Burns
427 U.S. 347 (1976) ............................................................................................... 31
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
666 F.3d 1216 (9th Cir. 2012) ............................................................................... 29
///
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Fair Housing Of Marin v. Combs

285 F.3d 899 (9th Cir. 2002) ................................................................................. 28
Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.
528 U.S. 167 (2000) ............................................................................................... 25
Frothingham v. Mellon
262 U.S. 447 (1923) ............................................................................................... 31
Georgia Latino Alliance for Human Rights v. Governor of Georgia
691 F.3d 1250 (11th Cir. 2012) ............................................................................. 14
Gordon v. Holder
721 F.3d 638 (D.C. Cir. 2013_ .............................................................................. 32
Havens Realty Corp. v. Coleman
455 U.S. 363 (1982) ............................................................................................... 28
Haywood v. Drown
556 U.S. 729 (2009) ............................................................................................... 20
Heck v. Humphrey
512 U.S. 477 (1994) ............................................................................................... 33
Hines v. Davidowitz
312 U.S. 52 (1941) ................................................................................................... 7
Hoffman Plastic Compounds, Inc. v. N.L.R.B.
535 U.S. 137 (2002) ................................................................................................. 4
Hunt v. Wash. State Apple Adver. Commission
432 U.S. 333 (1977) ............................................................................................... 27
Johnson v. California
543 U.S. 499 (2005) ............................................................................................... 17
Kowall v. United States
53 F.R.D. 211 (W.D. Mich. 1971) ......................................................................... 32
Lavan v. City of Los Angeles
797 F.Supp.2d 1005 (C.D. Cal. 2011) ................................................................... 34
Libertarian Party of Los Angeles County v. Bowen
709 F.3d 867 (9th Cir. 2013) ................................................................................. 27
Llewelyn v. Oakland Cty.Prosecutor's Office
402 F.Supp. 1379 (E.D. Mich. 1975)..................................................................... 33
Lopez v. Candaele
630 F.3d 775 (9th Cir. 2010) ................................................................................. 27
Lozano v. City of Hazleton
724 F.3d 297 (3d Cir. 2013) .................................................................................. 14
Lujan v. v. Defenders of Wildlife
504 U.S. 555 (1992) ......................................................................................... 12, 25
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Maurer v. Los Angeles County Sheriff's Department

691 F.2d 434 (9th Cir. 1982) ................................................................................. 32
Melendres v. Arpaio
695 F.3d 990 (9th Cir. 2012) ................................................................................. 31
Melendres v. Arpaio
No. CV-07-2513-PHX-GMS, 2016 WL 2783715 (D. Ariz. May 13, 2016) ......... 34
Monell v. Department of Social Services of City of New York
436 U.S. 658 (1978) ......................................................................................... 17, 18
Monroe v. Pape
365 U.S. 167 (1961) ............................................................................................... 18
Monsanto Co. v. Geertson Seed Farms
561 U.S. 139 (2010) ............................................................................................... 12
Mont. Shooting Sports Association v. Holder
727 F.3d 975 (9th Cir. 2013) ................................................................................. 11
Morales v. Trans World Airlines, Inc.
504 U.S. 374 (1992) ............................................................................................... 31
Motor Coach Employees v. Lockridge
403 U.S. 274 (1971) ............................................................................................... 19
National Ctr. for Immigrants' Rights, Inc. v. I.N.S.
913 F.2d 1350 (9th Cir. 1990),
revd on other grounds 502 U.S. 183 (1991) ......................................................... 15
Nome Eskimo Community v. Babbitt
67 F.3d 813 (9th Cir. 1995) ................................................................................... 25
Nonnette v. Small
316 F.3d 872 (9th Cir. 2002) ................................................................................. 33
Oklevueha Native America Church of Hawaii, Inc. v. Holder
676 F.3d 829 (9th Cir. 2012) ................................................................................. 26
Presidio Golf Club v. National Park Serv.
155 F.3d 1153 (9th Cir. 1998) ............................................................................... 26
Regents of University of California v. America Broad. Companies, Inc.
747 F.2d 511 (9th Cir. 1984) ................................................................................. 31
Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc.
944 F.2d 597 (9th Cir. 1991) ................................................................................. 31
Sharp v. Weston
233 F.3d 1166 (9th Cir. 2000) ............................................................................... 34
Shipp v. Todd
568 F.2d 133 (9th Cir. 1978) ................................................................................. 32
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Smith v. Pac. Properties & Development Corp.

358 F.3d 1097 (9th Cir. 2004) ............................................................................... 28
Summers v. Earth Island Institute
555 U.S. 488 (2009) ............................................................................................... 26
Swann v. Charlotte-Mecklenberg Board of Education
402 U.S. 1 (1971) ................................................................................................... 34
Thomas v. Anchorage Equal Rights Commission
220 F.3d 1134 (9th Cir. 2000) ............................................................................... 26
Triton Energy Corp. v. Square D. Co.
68 F.3d 1216 (9th Cir. 1995) ................................................................................. 11
U.S. v. Sumner
226 F.3d 1005 (9th Cir. 2000) ............................................................................... 32
United States v. Arizona
641 F.3d 339 (9th Cir. 2011)
revd in part 132 S. Ct. 2492 (2012) ............................................................... passim
United States v. Classic
313 U.S. 299 (1941) ............................................................................................... 18
United States v. Linn
513 F.2d 925 (10th Cir. 1975) ............................................................................... 32
United States v. South Carolina
720 F.3d 518 (4th Cir. 2013) ................................................................................. 14
United States v. Supreme Court of New Mexico
No. 14-2037, 2016 WL 3166830 (10th Cir. June 7, 2016) .................................... 12
Valle del Sol v. Whiting
732 F.3d 1006 (2013)...................................................................................... passim
Valle del Sol v. Whiting
No. CV 10-1061-PHX-SRB, 2012 WL 8021265 (D. Ariz. Sept. 5, 2012),
aff'd, 732 F.3d at 1029 ........................................................................................... 31
Village of Arlington Heights v. Metropolitan Housing Development Corp.
429 U.S. 252 (1977) ............................................................................................... 24
We Are America v. Maricopa Cty. Board of Sup'rs
297 F.R.D. 373 (D. Ariz. 2013) ...................................................................... passim
Wells Fargo Bank N.A.v. Boutris
419 F.3d 949 (9th Cir. 2005) ................................................................................. 12
Wisconsin Department of Industry v. Gould Inc.
475 U.S. 282 (1986) ............................................................................................... 19
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FEDERAL STATUTES
8 C.F.R.
214.14 ................................................................................................................... 7
274a.2 .............................................................................................................. 4, 16
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8 U.S.C.
1101(a)(15)(T) ...................................................................................................... 7
1101(a)(15)(U) ...................................................................................................... 7
1182(a)(6)(C) ........................................................................................................ 5
1227(a)(3)(C)(i) .................................................................................................... 5
1324a et seq ................................................................................................. passim
1324c ..................................................................................................................... 5
18 U.S.C.
1001 ...................................................................................................................... 5
1546 ...................................................................................................................... 5
1621 ...................................................................................................................... 5
22 U.S.C.
7101(b)(19) ........................................................................................................... 7
28 C.F.R.
68.1 ....................................................................................................................... 5
42 U.S.C.
3 ..................................................................................................................... 20, 32
1985 .................................................................................................................... 32
Federal Rules of Civil Procedure
Rule 16 ..................................................................................................................... 1
Rule 56 ............................................................................................................... 1, 11
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STATE STATUTES
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A.R.S.
13-702 ................................................................................................................. 19
13-703 ................................................................................................................. 19
13-2002 ..................................................................................................... 1, 19, 33
13-2008 ........................................................................................................ passim
13-2009 ........................................................................................................ passim
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MISCELLANEOUS
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Pub. L. 99-603..................................................................................................................... 5
103 ....................................................................................................................... 5
101 ........................................................................................................................ 5
111 ........................................................................................................................ 6
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Pub. L. 101-649................................................................................................................... 5
House Bill 2745 ......................................................................................................... passim
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House Bill 2779 ......................................................................................................... passim

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Amicus Brief of the United States

2016 WL 1181917 .......................................................................................... passim
Puente Arizona v. Arpaio
No. 15-15211, 2016 WL 1730588 (9th Cir. May 2, 2016) ............................. passim
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MOTION
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs hereby
move for partial summary judgment on the portion of their First Claim for Relief which
asserts that Defendants Maricopa County Sheriff Joseph M. Arpaio, County Attorney
William Montgomery and Maricopa County (the County Defendants) have a policy,
practice or custom of enforcing 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 (collectively the worker identity provisions) and Arizonas forgery
statute, A.R.S. 13-2002, against undocumented immigrants1 in violation of the
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Supremacy Clause. Second Amended Complaint, Doc. 191, at 38-39. In light of the Ninth
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Circuits decision reversing the preliminary injunction previously entered by this Court,
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and in order to prevent further irreparable harm, Plaintiffs respectfully request expedited
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consideration of their motion pursuant to Rule 16 and the Courts inherent authority to
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manage its docket.
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Plaintiffs motion is supported by the following Memorandum of Points and
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Authorities, Plaintiffs separate LRCiv 56.1(a) Statement of Facts Motion (SOF),
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supporting documents, the record on file in this action, and any argument that may be
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presented.
MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
In this action for declaratory and injunctive relief, Plaintiffs challenge a state-level
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scheme that criminally punishes individuals who do not have federal authorization to
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work in the United States for the act of securing employment. Promulgated as part of a
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broader platform favored by Arizona nativists to make life so difficult for immigrants
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coming from Mexico and Latin America that they would self-deport, the scheme has
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Plaintiffs intend the term undocumented immigrant and undocumented worker to

refer to individuals who do not have federal authorization to work in the United States.
They use these terms except when quoting or referring to materials that use a different
term.
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turned individuals such as Plaintiff Sara Cervantes Arreolawho was working at a
grocery store on Phoenixs west side to support her young son when she was arrested
into convicted felons.
Shortly after they filed suit in June 2014, Plaintiffs sought temporary injunctive
relief from this Court based on their facial preemption challenge to the worker identity
provisions. Doc. 30. The Court initially granted the request in January 2015, and also
denied Defendants motions to dismiss Plaintiffs First Amended Complaint. Doc. 133.
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On appeal, the Ninth Circuit Court of Appeals declined to uphold the preliminary
injunction on the grounds that the worker identity provisions could be applied to a U.S.
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citizen who uses false information to gain employment for reasons other than to
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demonstrate federal authorization to work. Puente Arizona v. Arpaio, No. 15-15211, 2016
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WL 1730588, at *4 (9th Cir. May 2, 2016). The Ninth Circuit panel ruled that
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enforcement of the statutes should not be enjoined in their entirety. Id. at *7. However,
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noting that some applications of the worker identity provisions appear to nevertheless
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conflict with federal law, the Ninth Circuit remanded the case to this Court to decide
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Plaintiffs as-applied preemption challenge. Id. at *6, 9.
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While the appeal was pending, the United Statesat the Ninth Circuits
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invitationfiled an amicus brief setting forth its views on the scope of state and local
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enforcement activity that is preempted by federal law. Amicus Brief of the United States
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(U.S. Br.), 2016 WL 1181917, mentioned approvingly at Puente Arizona, No. 15-
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15211, 2016 WL 1730588, at *4 n.7. In the United States opinion, state laws are
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preempted to the extent they criminalize fraud in the federal employment verification
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system, or fraud otherwise committed to demonstrate work authorization under federal
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immigration law[.] Id. at *2. The United States made clear that it is not only reliance on
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the Form I-9 and accompanying documents that interfere[s] with [] federal
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prerogatives. Id. at *2, 15-16 (citation omitted). [A]n employee may commit such fraud
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. . . outside the Form I-9 process, such as on employment applications, state payroll tax
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forms, credit release forms, direct deposit forms and other documents, and prosecution
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in those circumstances would likewise intrude upon matters that Congress [] brought
within its exclusive governance [.] Id.
Meanwhile, the Parties moved forward with discovery at the District Court. In
June 2015, this Court granted leave for Plaintiffs to amend their complaint to include an
as-applied preemption challenge to the County Defendants enforcement of the state
forgery statute and to add several new plaintiffs. Doc. 184. Fact discovery and expert
discovery thus focused on enforcement of all three challenged statutes.
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The record is now fully developed and ripe for adjudication on Plaintiffs asapplied preemption claim. See Puente Arizona, 2016 WL 1730588 at *4. The undisputed
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record is clearthe Maricopa County Sheriffs Office (MCSO) and the Maricopa
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County Attorneys Office (MCAO) have and will continue to systematically
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investigate, arrest, detain and prosecute undocumented workers for fraud in connection
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with their efforts to work in the United States. Between 2007 and 2015, MCSO submitted
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hundreds of employment-related identity theft and forgery cases to the MCAO for
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prosecution, and the MCAO prosecuted nearly two thousand such cases. All but a small
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percentage of those individuals were undocumented.
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Arizonas worker identity provisions and forgery statute are both field and conflict
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preempted as applied to individuals who commit fraud: (1) in the Form I-9 process,
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and/or (2) to otherwise demonstrate authorization to work under federal immigration law.
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The County Defendants criminal punishment of undocumented workers usurps federal
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authority and appropriates the employment verification system Congress created for their
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own purposes, divorced from federal priorities.
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The families split apart by Defendants enforcement campaign have waited eight
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long years for a resolution of the constitutional questions raised by this case. Meanwhile,
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Defendants, such as Defendant Sheriff Arpaio, have been able to pursue their illegal
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immigration agenda, with worksite identity theft enforcement playing a prominent role.
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The Court need not wait further to enter an injunction against the County Defendants
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preempted policy and practice. Plaintiffs can amply demonstrate their standing for
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injunctive relief and eligibility for a permanent injunction at this stage, and they request
that the Court move swiftly to prevent further irreparable harm.
II.
BACKGROUND
A.
The Federal Scheme Governing Employment of Undocumented

Immigrants
As this Court previously found, two decades before Arizona enacted H.B. 2779
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and H.B. 2745, Congress had already occupied the field, making combating the
employment of illegal aliens central to the policy of immigration law. Doc. 133 at 2
(quoting Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002)).
Through the Immigration Reform and Control Act of 1986 (IRCA),2 Congress created
10
a complex, United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011), revd in part,
11
132 S. Ct. 2492, comprehensive, Arizona, 132 S. Ct. 2492, 2504 (2012), and
12
careful[ly] balance[d], id. at 2505, scheme to regulate the employment of
13
undocumented immigrants at the national level. See also SOF 1 (signing statement of
14
President Reagan). This scheme includes a detailed procedure for verifying prospective
15
employees eligibility for employment under federal law, see 8 U.S.C. 1324a(b); 8
16
C.F.R. 274a.2, as well as a graduated series of civil and criminal sanctions for
17
employers who knowingly employ undocumented immigrants, see 8 U.S.C. 1324a(e)-
18
(f). See also U.S. Br., 2016 WL 1181917, at *4-5.

In devising the federal scheme, Congress anticipated that some individuals might
19
20
respond to the new employment verification system by relying on false information or
21
documents. See, e.g., SOF 2 (statement of INS Acting Commr Meissner). Accordingly,
22
Congress provided federal authorities with a multifaceted set of tools to address this
23
concern. See SOF 3 (statement of IRCA co-sponsor Sen. Simpson). The federal tools
24
are comprehensive and versatile, involving civil, criminal and immigration-related
25
penalties. See U.S. Br., 2016 WL 1181917, at *6-7.

First, IRCA amended 18 U.S.C. 1546(b) pertaining to Fraud and misuse of
26
27
visas, permits, and other documents to allow criminal sanctions for the use of a false
28
Pub. L. 99-603, codified at 8 U.S.C. 1324a et seq.

4
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 statutesboth newly amended and pre-existingthat 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],
10
1546, and 1621 [perjury]).
11
Second, Congress created civil penalties for document fraud. 8 U.S.C. 1324c
12
allows an administrative law judge to impose a fine, after a hearing, on any person or
13
entity who knowingly forge[s], use[s] or attempt[s] to use a document not
14
belonging to the possessor to satisfy the requirements of the Immigration and Nationality
15
Act (INA), including for purposes of obtaining employment. 8 U.S.C. 1324c(a)(1)-
16
(4), 1324c(d).3 These are enforced through a unified federal enforcement process that also
17
covers the INAs employer sanctions and anti-discrimination provisions. See 8 U.S.C.
18
1324a(e), 1324b(e)-(j), 1324c(d); 28 C.F.R. 68.1.

And third, Congress has established immigration consequences for fraud in the
19
20
employment verification process. See, e.g., 8 U.S.C. 1227(a)(3)(C)(i) (making an alien
21
who is the subject of a final order for violation of section 1324c of this title []
22
deportable); 8 U.S.C. 1182(a)(6)(C) (making those who make false claims to
23
citizenship, including for purposes of establishing eligibility for employment,
24
inadmissible and thus ineligible for adjustment of status).

A critical feature of the comprehensive federal scheme is the discretion that it
25
26
affords federal officials. U.S. Br., 2016 WL 1181917, at *18. In implementing the
27
28
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).
5
scheme governing fraud by employees to demonstrate authorization to work in the United
States, federal officials balance a range of delicate (and sometimes competing) interests.
Accordingly, U.S. Immigration and Customs Enforcement (ICE) has prioritize[d] the
criminal prosecution of employers who knowingly hire undocumented workers . . . or
facilitate document or benefit fraud, and to the extent enforcement action is taken
against workers, it relies heavily on civil, rather than criminal, measures. SOF 4
(emphasis added). This is consistent with IRCAs view that undocumented workers
should not be treated as severely as the employers that hire them. Arizona, 632 S.Ct. at
2504 (IRCA deliberately does not impose criminal penalties on migrants for engaging in
10
unauthorized work, reflect[ing] a considered judgment that making criminals out of
11
aliens . . . who already face the possibility of employer exploitation because of their
12
removable status would be inconsistent with federal policy).
13
ICE and the U.S. Department of Homeland Security (DHS) have also
14
promulgated written prosecutorial discretion policies designed to encourage
15
undocumented workers who experience unfair labor practices to come forward and report
16
those violations. SOF 5-7. These policies further IRCAs intent to avoid depressing
17
working conditions for all by making undocumented workers more vulnerable than
18
necessary or undermin[ing] or diminish[ing] in any way [their] labor protections in
19
existing law. SOF 8; see also Pub. L. 99-603, 111(d) (authorizing, as part of IRCA,
20
funds for the Department of Labor to strengthen enforcement of labor standards for
21
undocumented workers and noting that it would help remove the economic incentive for
22
employers to exploit and use such aliens).
23
The United States has taken numerous additional steps to further federal
24
objectives. For example, to protect victims of trafficking, including labor trafficking, a
25
federal statute instructs that they should not be inappropriately incarcerated, fined or
26
otherwise penalized for acts committed as a result of being trafficked, such as using
27
false documents. 22 U.S.C. 7101(b)(19). Moreover, Congress has made special visas
28
available to victims and witnesses of trafficking and other crimes to encourage them to
6
cooperate with law enforcement. See generally 8 U.S.C. 1101(a)(15)(T),
1101(a)(15)(U); 8 C.F.R. 214.14. State prosecutions of the same individuals would,
even if unwittingly, thwart the federal governments ability to rely on those individuals in
high-priority criminal proceedings. U.S. Br., 2016 WL 1181917, at *19. At the
international level, the United States has entered into treaties relating to labor rights,
including those that extend to undocumented immigrants employed domestically. See,
e.g., SOF 9. The ability of the federal government to protect foreign nationals within
our borders from harassment, discrimination and abuse has important consequences for
the reciprocal treatment of American citizens abroad. Arizona, 132 S. Ct. at 2498; see
10
also Hines v. Davidowitz, 312 U.S. 52, 64 (1941); U.S. Br., 2016 WL 1181917, at *20.
11
B.
The Circumstances of Passage of HB 2779 and HB 2745
12
Notwithstanding the extensive federal framework, in 2007 and 2008, Arizona
13
amended its identity theft laws to create a state-level scheme for regulating the use of
14
false information by undocumented immigrants to work. Specifically, House Bill 2779
15
(H.B. 2779), also known as the Legal Arizona Workers Act (LAWA), amended
16
A.R.S. 13-2009 to create a new ground of aggravated identity theft for use of the
17
information of another personreal or fictitiouswith the intent to obtain
18
employment. SOF 10; see also SOF 11. The next year, House Bill 2745 (H.B.
19
2779) supplemented the LAWA by expanding A.R.S. 13-2008, the non-aggravated
20
identity theft statute, to also target use of identifying information for employment. SOF
21
12-13; see also SOF 14. Conceived of as part of Arizona legislators attrition
22
through enforcement immigration strategy, SOF 15-17, the measures capitalized on
23
the practical reality that, because of federal law, undocumented immigrants could not
24
obtain employment in the state without relying on false identifying information.
25
There is little doubt that a primary purpose of the worker identity provisions was
26
to address the employment of undocumented immigrants; fact discovery has only
27
confirmed this. The titles and descriptions of H.B. 2779 and H.B. 2745 reflect this
28
purpose. SOF 13, 18; see also SOF 19. H.B. 2745 1 even included a corollary
7
provision for employers who knowingly accepted false identity information for the
purpose of determining employment eligibility with an explicit reference to 8 U.S.C.
1324a. SOF 20. Legislators supporting passage of the worker identity provisions were
also not shy to express their view that Arizona should punish undocumented workers
harshly in order to send a strong message on immigration. SOF 21-22; see also SOF
23. Statements expressing dissatisfaction with federal policy in the area were abound.
SOF 24-26. For example, Senator Chuck Gray explained that he supported H.B. 2779
because it advances the cause of protecting our citizens against something that the
Federal Government wont do. SOF 25. In short, as the Ninth Circuit panel agreed, the
10
legislative history of both H.B. 2779 and H.B. 2745 show an intent on the part of Arizona
11
[] to prevent unauthorized aliens from remaining in the state. Puente Arizona, 2016 WL
12
1730588, at *5.
13
Though the provisions in H.B. 2779 and H.B. 2745 that were ultimately enacted
14
were incorporated into Arizonas identity theft laws, it is also apparent that lawmakers
15
were thinking about Arizonas forgery law in a similar way. In 2006, Pearce had
16
championed a predecessor bill, House Bill 2577, which would have revised the definition
17
of forgery to include falsely making or altering a written instrument that purports to be a
18
document that fulfills the requirements for establishing identity, or eligibility to work in
19
the United States pursuant to the federal Immigration Reform and Control Act of 1986[.]
20
SOF 27-28. That bill passed both houses of the Legislature, though it was vetoed by
21
the Governor. SOF 27.
22
C.
The County Defendants Enforcement Campaign
23
The enactment of H.B. 2779 and H.B. 2745 kicked off a seven year-long crack
24
down on undocumented workers in Maricopa County that only started to wane after this
25
lawsuit was filed. See SOF 46-48, 59, 74-75, 159. Shortly after H.B. 2779 became law,
26
the MCAO and MCSO developed a strategy of investigating employees at local
27
businesses who they believed to be undocumented. SOF 29-32. The agencies decided
28
the best way to enforce the new employer sanctions law was to start with the employees.
8
Id. Investigations would typically begin with a tip from a member of the public, for
example, that a business was employing illegals. SOF 33-42. MCSO would then
work the tip until it developed enough evidence to apply for a search warrant claiming
that the employees were committing identity theft and forgery by using a false identity
and/or Social Security number to work. SOF 43. MCSO would subsequently execute
the search warrant, seizing employee files and arresting the employees in the process.
SOF 44. MCAO would then prosecute the employees criminally under the worker
identity provisions and state forgery statute. SOF 45. The agencies used significant
sums in state grants annually to prosecute employees in this way, SOF 49-56, on the
10
chance that some of the prosecutions of employees might lead to evidence against an
11
employer.4
The strategy did not end up being a very successful one against employers. MCSO
12
13
and MCAO only managed to bring a handful of actions against employers, civil and
14
criminal included, over the years. SOF 58. But the strategy was immensely successful
15
in arresting and locking up many undocumented workers. MCSO reports that it
16
conducted a total of over 80 worksite operations, leading to the arrest of at least 806
17
employees, virtually 100% of which were undocumented. SOF 59-61. Consistent
18
with the Legislatures purpose, MCSOs worksite operations sent a strong message that
19
undocumented immigrants were not welcome in Maricopa County or the State. The high-
20
profile round ups often involved large numbers of arrestees and heavy media coverage.
21
SOF 62-64. During this time, the MCAO was also bringing employment-related
22
identity theft and forgery cases referred from agencies other than the MCSO. SOF 65-
23
67. Further, MCSO investigated and referred some cases outside of its large-scale
24
worksite operations. SOF 68.

Compared to the pre-2007 timeframe, the number of forgery cases co-charged
25
26
with non-aggravated identity theft that were brought against undocumented immigrants
27
rose markedly in the several years after 2007. SOF 69. And of the employment-related
28
Of course, they have also spent County revenues on enforcement. SOF 57.
9
identity theft and forgery cases that have been handled by the MCAO, including those
referred by agencies other than MCSO, all but a small percentage have been brought
against undocumented immigrants. SOF 70-71. The high number of identity theft and
forgery cases brought against undocumented immigrants by the County Defendants in
this case was a predictable outcome of the focus on employment-related identity fraud
first blessed by H.B. 2779 and H.B. 2745 and later carried out by Defendants. According
to Vicki Kratovil, an MCAO bureau chief who oversaw many of these cases, it is
legally and factually obvious that undocumented workers would have to use
someone elses documents to work because they dont have the documents themselves.
10
11
SOF 72.
Defendants enforcement campaign continued after County Attorney Montgomery
12
took office. SOF 73, 156-57. Even after MCAO realized it should not be bringing
13
charges based on the Form I-9, prosecutors continued to bring forgery counts based on
14
other employment-related documents undocumented workers had filled out or presented
15
with the false name and/or Social Security number instead. SOF 83, 85, 156-57.
16
D.
Harm to Plaintiffs
17
The County Defendants enforcement campaign predictably caused devastation for
18
arrested workers and their families, spread fear throughout the immigrant community and
19
discouraged undocumented workers from reporting labor violations. SOF 148, 185-86,
20
188-93. Undocumented members of organizational Plaintiff Puente Arizona (Puente)
21
constantly worry about being taken by Maricopa County authorities. SOF 169. Puentes
22
own operations have also been impacted by Defendants enforcement of the worker
23
identity provisions and state forgery statute. SOF 184-98.
24
Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez are among the many
25
immigrants residing in Arizona who have been branded as serious criminals for working
26
to provide for their families. SOF 211-17. Both used false information to obtain
27
employment because they could not otherwise demonstrate authorization to work in the
28
10
United States. SOF 214, 217. Today, they live with the impacts of a conviction under
A.R.S. 13-2009(A)(3).
Finally, taxpayers have also been affected by the County Defendants expenditure
3
4
of resources to enforce the worker identity provisions and state forgery statute against
undocumented workers and detain them in the County jails. Plaintiffs-Reverends Susan
Frederick-Gray, Russell Andrew Burnette and Erin Tamayo have and will continue to
have their municipal tax dollars used in furtherance of the County Defendants practices.
SOF 57, 190-207. They disagree with and morally object to such use of their taxes.
SOF 208-10.
10
III.
ARGUMENT
11
A.
12
A court must grant summary judgment if the movant shows that there is no
13
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
14
of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223
15
(1986). The movant bears the initial responsibility of presenting the basis for its motion
16
and identifying those portions of the record, together with affidavits, if any, that it
17
believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the
18
movant meets its initial responsibility, the burden shifts to the nonmovant to present
19
specific facts that show there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
20
477 U.S. 242, 248, 250 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216,
21
1221 (9th Cir.1995). Only disputes over facts that might affect the outcome of the suit
22
under the governing law will properly preclude the entry of summary judgment.
23
Anderson, 477 U.S. at 248. The non-movant may not rest on mere allegations and
24
denials, but must present evidence of specific, disputed facts. See Anderson, 477 U.S. at
25
248. Id.; see also Fed R. Civ. P. 56(c)(1).
Legal Standard
26
To grant relief at the summary judgment stage, the Court need only find that at
27
least one plaintiff has standing for each type of relief sought. See Mont. Shooting Sports
28
Ass'n v. Holder, 727, F.3d 975, 981 (9th Cir. 2013) (noting that the presence in a suit of
11
even one party with standing suffices to make a claim justiciable) (quotations omitted);
see also Lujan v. v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (describing standing
burden at various stages of a case). A permanent injunction is appropriate where
Plaintiffs can establish: (1) that they have and will suffer irreparable injury in the absence
of an injunction; (2) that remedies available at law, such as monetary damages, are
inadequate; (3) that, considering the balance of hardships, a remedy in equity is
warranted; and (4) that the public interest is not disserved by a permanent injunction. See
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010); Arizona Dream Act
Coal. v. Brewer, 818 F.3d 901, 919 (9th Cir. 2016).
10
B.
11
It is a fundamental principle of the Constitution [] that Congress has the power to
12
preempt state law. Valle del Sol v. Whiting, 732 F.3d 1006, 1022 (2013) (quoting Crosby
13
v. Natl Foreign Trade Council, 530 U.S. 363, 372 (2000)). Even where state laws are not
14
preempted in their entirety, they may be per se preempted as applied to a certain class of
15
cases. See United States v. Supreme Court of New Mexico, No. 14-2037, 2016 WL
16
3166830, at *13-14 (10th Cir. June 7, 2016) (explaining that such cases can bear
17
resemblance to a facial challenge but do not call for invalidation of a statute in all of its
18
applications); see also Wells Fargo Bank N.A.v. Boutris, 419 F.3d 949, 967 (9th Cir.
19
2005) (holding California real-estate lending licensing requirements preempted as applied
20
to subsidiaries of national banks). Likewise, a law enforcement agencys policy, pattern
21
or practice of enforcing a statute or statutes in a particular way can also be preempted.
22
See, e.g., We Are Am. v. Maricopa Cnty. Bd. Of Sup'rs, 297 F.R.D. 373, 386-87 (D. Ariz.
23
2013), appeal dismissed (Sept. 15, 2014) (holding Maricopa County policy of enforcing
24
state human smuggling statute against migrants for conspiring to smuggle themselves
25
preempted, noting plaintiffs . . . may challenge the Policy as conflict and field
26
preempted regardless of [the state smuggling statutes] facial constitutionality).
27
28
The Statutes Are Preempted as Applied by the MCSO and MCAO
A state law or local policy is field preempted when it regulates conduct in a field
that Congress, acting within its proper authority, has determined must be regulated by its
12
exclusive governance. Arizona, 132 S.Ct at 2501. 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, 732 at 1023 (quoting Arizona, 132 S.Ct at 2501).
Further, a state law or local policy can be conflict preempted where it 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). As this Court has noted
previously, even where a challenged law or policy shares some goals with federal law,
the layering of additional and different penalties on top of federal law can undermine[]
the congressional calibration of force. Doc. 133 at 24 (quoting Crosby, 530 U.S. at 380);
10
11
see also Valle del Sol, 732 F.3d at 1027.

Here, Arizonas worker identity provisions and forgery statute are both field and
12
conflict preempted as applied to individuals who commit fraud: (1) in the Form I-9
13
process, and/or (2) to otherwise demonstrate authorization to work under federal
14
immigration law, and thus, the County Defendants policy and practice of enforcing these
15
statutes against such individuals should be enjoined.
16
17
18
1.
The Systematic Criminal Prosecution of Undocumented Immigrants

Under State Law for Fraud in Response to the Federal Employment
Verification System is Field and Conflict Preempted
In its decision granting Plaintiffs request for a preliminary injunction, the Court
19
concluded that Congress had occupied the field of unauthorized-alien fraud to obtain
20
employment. Doc. 133 at 22-24. The Ninth Circuits decision did not disturb this finding
21
and there is little reason to revisit it now. See, e.g., Arizona v. California, 460 U.S. 605,
22
618 (1984) ([W]hen a court decides upon a rule of law, that decision should [generally]
23
continue to govern the same issues in subsequent stages in the same case.).
24
When deciding whether a particular area of regulation is field preempted, the
25
Ninth Circuit looks to: (1) the comprehensiveness of the federal scheme, (2) the place of
26
the scheme within a larger regulatory structure, and (3) whether the scheme directly
27
evidenced an intent to limit the role of states. Valle del Sol, 732 F.3d at 1026; see also
28
Lozano v. City of Hazleton, 724 F.3d 297, 316 (3d Cir. 2013); Georgia Latino Alliance
13
for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012)
(GLAHR); United States v. South Carolina, 720 F.3d 518, 530-31 (4th Cir. 2013).
First, the field of fraud in response to the federal work authorization requirement has
indeed been heavily and comprehensively regulated by Congress, providing federal
officials with a complete set of tools designed to address a range of regulated conduct.
Doc. 133 at 22; see also supra at 4-6. Second, federal regulation of fraud in response to
the employment verification system is part of a broader policy framework regulating the
employment of immigrants, see Arizona, 132 S.Ct. at 2504, that is designed to work as a
harmonious whole. Valle del Sol, 732 F.3d at 1025 (citation omitted); see also Arizona,
10
132 S.Ct. at 2505 (noting the careful balance struck by Congress in IRCA). Third,
11
Congress illustrated its intent to limit states role in this area by circumscribing the use
12
that may be made of information submitted in the verification process. See supra at 5
13
(discussing 8 U.S.C. 1324a(b)(5)); Arizona, 641 F.3d at 358-59 (noting that [8 U.S.C.
14
] 1324a(d)(2)(F) provides in even clearer language that Arizona may not use the
15
verification system to enforce S.B. 1070s Section (C)); see also 8 U.S.C.
16
1324a(d)(2)(C), (d)(2)(G), (b)(4) (containing further language limiting copying and use
17
of documentation).
18
The District Court also previously concluded that punishing undocumented
19
immigrants for fraud committed to obtain or continue employment under state law is
20
conflict preempted because it (1) imposes additional and different penalties on
21
undocumented workers than federal law; and (2) divest[s] federal authorities of the
22
exclusive power to prosecute these crimes and allows local law enforcement to bring
23
cases unaligned with federal . . . priorities. Doc. 133 at 24-25 (citing Valle del Sol, 732
24
F.3d at 1027). The Ninth Circuit further pointed to case law where the Court had found
25
the impacts on federal prosecutorial discretion to be a persuasive reason to conclude that
26
state law was preempted. Puente Arizona, 2016 WL 1730588, at *6.
27
The creation of state or local schemes to regulate fraud by undocumented
28
immigrants in the employment context interfere with federal law. They put prosecutorial
14
power in the hands of local officials in Arizonaand in potentially 49 other stateswho
are free to disregard federal policies and priorities. The Ninth Circuit recently confirmed
that policies that undermine the broad discretion committed to immigration officials by
Congress are preempted. Arizona Dream Act Coal., 818 F.3d at 910. State interference is
even more problematic in the context of enforcement against immigrant workers because
federal officials must balance enforcement not only against the other priorities reflected
in the Immigration and Nationality Act (INA), but against the interest in preserving the
integrity of labor laws and relevant international agreements. Natl Ctr. for Immigrants
Rights, Inc. v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990) (IRCAs scheme balances
10
specifically chosen measures discouraging illegal employment with measures to protect
11
those who might be adversely affected), revd on other grounds, 502 U.S. 183 (1991).
12
Prosecutorial discretion and versatility are critical to federal officials ability to pursue
13
the delicate balance of statutory objectives embodied in IRCA. Buckman Co. v.
14
Plaintiffs Legal Committee, 531 U.S. 341, 348-49 (2012) (The FDA thus has at its
15
disposal a variety of enforcement options that allow it to make a measured response to
16
suspected fraud upon the Administration. This flexibility is a critical component of the
17
statutory and regulatory framework under which the FDA pursues difficult (and often
18
competing) objectives.); see also U.S. Br., 2016 WL 1181917, at *18-20 (discussing
19
how enforcement of the worker identity provisions against undocumented immigrants
20
interfere with federal prerogatives and interests).
21
In practical terms, preempted enforcement activity in this area can be broken down
22
into two overlapping categories. First, any use by local authorities of the Form I-9 or
23
information that employees submit to indicate their work status as part of the
24
employment verification process is prohibited, Arizona, 132 S. Ct. at 2504, regardless of
25
whether it is submitted by an undocumented immigrant, lawful resident or U.S. citizen.
26
See 8 U.S.C. 1324a(b)(5), (d)(2)(F), 8 U.S.C. 1324a(b)(4), (d)(2)(C), (d)(2)(G); 8
27
C.F.R. 274a.2(b)(4). This use limitation covers not only the Form I-9 itself but any
28
copies or electronic images of documents . . . used to verify an individuals identity or

15
employment eligibility, such as state drivers licenses and Social Security cards, 8
C.F.R. 274a.2(b)(4); 8 U.S.C. 1324a(b)(1)(C)-(D), and any personal information
utilized by the [employment verification] system, 8 U.S.C. 1324a (d)(2)(C). Naturally,
use means more than just reliance on a document as evidence in court or to make a
charging decision, but reliance in a criminal investigation and any prosecution that flows
from such investigation as well. See U.S. Br., 2016 WL 1181917, at *14.
Second, local authorities are prohibited from prosecuting undocumented
7
8
individuals for fraud they otherwise commit in the employment context simply to
maintain the identity they have adopted in order to obtain employment. An
10
undocumented worker who submits a false name and/or Social Security number as part of
11
the employment verification process will often be asked to complete other employment-
12
related paperwork, ranging from a job application to state and federal tax forms. Their
13
use of the same name and/or Social Security number to be consistent with information
14
they provide in the employment verification process serves the same purpose as the
15
provision of false identity information on the Form I-9to demonstrate authorization to
16
work under federal law. Defendants do not dispute that prosecution of these individuals
17
based on their Form I-9 would be preempted. Prosecution of the very same individuals
18
for other employment-related fraud they commit on account of their unauthorized status
19
wouldas the United States has explainedlikewise usurp the authority Congress
20
arrogated to federal officials and be just as disruptive to the federal scheme. U.S. Br.,
21
2016 WL 1181917, at *15-16. Congress cannot have intended to leave room for local
22
authorities to prosecute those individuals simply by avoiding use of the Form I-9.5
23
24
25
26
27
28
See Doc. 133 at 26-27 (explaining that the existence of an express limitation in federal
law does not bar the ordinary working of [] pre-emption principles or impose a special
burden that would make it more difficult to establish the preemption of laws falling
outside the clause) (quoting Arizona, 132 S. Ct. at 2404-05); supra at 4-7 (setting forth
full federal scheme). Indeed, such prosecutions would still constitute use[] of the
[employment verification] system for a non-enumerated purpose because the fraud being
punished is a response to that system. 8 U.S.C. 1324a(d)(2)(F).
16
2.
1
2
The County Defendants Have a Policy and Practice of Enforcing the

Worker Identity Provisions and State Forgery Statute Against
Undocumented Workers
It is beyond dispute that the County Defendants, absent an injunction or the threat
of one, have and will continue to systematically investigate, arrest, detain and prosecute
individuals for fraud committed as part of the employment verification process and/or to
otherwise demonstrate authorization to work in the United States. Between 2007 and
2015, MCSO submitted at least 697 employment-related identity theft and forgery cases
to the MCAO for prosecution. SOF 74. At least1,864 employment-related cases were
submitted and/or filed by the MCAO in total. SOF 75. As discussed above, all but a
small percentage of the cases were brought against undocumented immigrants. See supra
10
at 10. Forgery charges played a prominent role in the employment-related casesindeed,
11
a great majority of employment-related cases from 2010 to 2014 involved co-charging
12
forgery with one of the identity-theft charges, A.R.S. 13-2008 or A.R.S. 13-2009.
13
SOF 76. The reliance on forgery in employment-related cases even grew as MCAO
14
charging of forgery cases in general was on the decline. Id.
15
The enforcement of the worker identity provisions and forgery statute against
16
undocumented immigrants is part of an officially-sanctioned policy, pattern and practice.
17
See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 694 (1978)
18
(noting that a municipality will be liable where an action is the product of official policy
19
or custom); Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (explaining that a
20
showing that harm is part of a pattern of official sanctioned . . . behavior, violative of
21
the plaintiffs [federal] rights, helps establish the violation is likely to recur), abrogated
22
on other grounds by Johnson v. California, 543 U.S. 499 (2005). Until the MCSO
23
disbanded its Criminal Employment Unit (CEU),6 Defendant Sheriff Arpaio had
24
championed the use of state law to prosecute undocumented immigrants for working. See,
25
e.g., SOF 86-90. At a March 2014 event, the Sheriff touted his Offices continued
26
27
28
This unit had previously been called the Employer Sanctions Unit, and then the
Criminal Employment Squad. SOF n.2. Plaintiffs will use the term CEU to refer to the
unit except when speaking about historical practices.
17
effort to enforce the [] illegal immigration laws by virtue of going into businesses and
locking up the employees with fake ID. SOF 77. Regarding the County Attorney, for
many years the webpage for the MCAO listed the use of a Social Security account or
other identification to get a job in the United States (Employment Identity Theft) as an
Ilegal Immigrant Crime[] prosecuted by the Special Crimes Bureau. SOF 78; see
also SOF 47. This page was reviewed and approved by County Attorney Montgomery
after he took office and did not change until months after the preliminary injunction order
in this case in 2015. SOF 78-79. MCSO and MCAO were both aware of and tracked
information about the immigration status of individuals arrested and prosecutedbut not
10
for the purpose of trying to avoid a conflict with federal law. SOF 124-27.7
11
The officially-sanctioned nature of both the MCSO and MCAOs enforcement of
12
state criminal statutes against undocumented workers is further evidenced by their use of
13
state funds earmarked for enforcement of laws relating immigration to staff the units that
14
brought employment-related identity theft and forgery cases. The MCSO used grant
15
funds earmarked for employer sanctions enforcement to pay for the positions of
16
personnel and operating expenses for the CEU. SOF 52, 56. The MCAO also used
17
employer sanctions grant funds to pay for prosecutor salaries and benefits. SOF 53. In
18
correspondence with the State about the monies, they were transparent about their focus
19
on immigration. See, e.g., id.
20
The County Defendants enforcement of state laws against undocumented workers
21
involves (or involved, in the case of MCSO) investigating and prosecuting individuals for
22
fraud committed as part of the employment verification process. SOF 80-82.8 The
23
24
25
26
27
28
Enforcement efforts were carried out under color of law. See Monroe v. Pape, 365 U.S.
167, 184 (1961) (police officer acts under color of law), overruled on other grounds by
Monell, 436 U.S. at 690-91; United States v. Classic, 313 U.S. 299, 326 (1941)
([m]isuse of power . . . made possibly only because wrongdoer is clothed with the
authority of state law, is action taken under color of state law).
8
Plaintiffs are filing on this same date a Motion for Sanctions based on spoliation of
evidence which includes a request that Defendant Arpaio be precluded from offering
evidence that the MCSO had a policy of no longer seizing the Form I-9s by 2014 or was
advised by the MCAO that Form I-9s were inadmissible, or in the alternative, that
Plaintiffs be granted an adverse inference that MCSO did indeed continue to seize and
use Form I-9s through the end of 2014.
18
MCAO implemented a policy on September 17, 2014 of not using the Form I-9 for
charging decisions; however, the September 17, 2014 policy does not prohibit reliance on
other documents workers submit to show identity and work authorization. SOF 83.9 The
County Defendants have also prosecuted individuals for fraud committed outside of the
verification process on other employment-related paperwork to maintain the identity they
adopted to demonstrate authorization to work in the United States. SOF 85.

As discussed above, Congress has reserved for federal authorities the prerogative
7
8
of regulating fraud in response to the federal work authorization requirement. Supra at
Pt.3.B.1. Congress clearly did not intend for the employment verification scheme to be
10
used for law enforcement objectives outside of the federal system. Where Congress
11
occupies an entire field states may not enter it in any respect, even with
12
complementary or auxiliary regulation. Arizona, 132 S.Ct at 2501-02. The County
13
Defendants practices are thus field preempted.

Further, the County Defendants practices create a conflict with federal law.
14
15
Because Defendants enforcement scheme consists solely of criminal prosecution, it
16
present a conflict in technique that can be fully as disruptive to the system Congress
17
enacted as conflict in overt policy. Id. at 2503, 2505 (quoting Motor Coach Employees
18
v. Lockridge, 403 U.S. 274, 287 (1971)); see also Wisconsin Department of Industry v.
19
Gould Inc., 475 U.S. 282, 286 (1986) (conflict is imminent whenever two separate
20
remedies are brought to bear on the same activity) (citations omitted); cf. supra at
21
Pt.II.B (describing federal scheme, which relies heavily on civil rather than criminal
22
sanctions, and provides authorities with a versatile range of possible actionscivil,
23
criminal and immigration-relateddepending on the circumstances of each case). Like
24
the worker identity provisions, a violation of Arizonas forgery statute also carries
25
different punishments than the applicable federal criminal statutes. Compare A.R.S.
26
13-702-703, A.R.S. 13-2002 with supra at 5 (listing federal criminal provisions); see
27
28
It also appears, as of the time of filing of this lawsuit, that MCAO was still using the
Form I-9 in some cases. SOF 84.
19
also Doc. 133 at 24-25. The County Defendants scheme further deprives federal
authorities of prosecutorial control, permitting unchecked criminal punishment of
individuals whom federal authorities may have exempted or de-prioritized from
enforcement. See supra at 6-7, 15.
5
6
3.
The Record Confirms That the County Defendants Punishment of

Undocumented Immigrants Has Been Purposeful
As discussed above, the record demonstrates that the County Defendants have
initiated a substantial number of investigations and prosecutions that encroach upon the
federally preempted field. That alone is sufficient for the Court to enjoin their conduct.
However, further undisputed evidence shows that the routine prosecution of
10
undocumented immigrants was not only the predictable result ofbut in many ways
11
the goal of Defendants focus on employment-related identity theft and forgery cases.
12
See, e.g., Haywood v. Drown, 556 U.S. 729, 736-42 (2009) (examining the purpose of a
13
state scheme requiring damages actions to be filed in state court for evidence of whether
14
it is being used as a device to undermine federal law and ultimately striking down law
15
as applied to 1983 claims).
16
Following the wishes of his constituency, in 2007, Sheriff Arpaio substantially
17
retooled his agency to respond to what he described as the illegal immigration
18
epidemic. SOF 86-87. He laid out the elements of his comprehensive fight in a
19
2007 MCSO News Release. SOF 87. One part of his plan included the cross-
20
certification of MCSO officers to enforce federal immigration laws. Id. Another part
21
just as significantwas the creation of a specialized unit called the Human Smuggling
22
Unit (HSU) that could enforce state laws relating to immigration. Id.
23
Around the same time, the Arizona Legislature passed LAWA and the MCSO
24
started communicating with the MCAO about a strategy for enforcing the new law. SOF
25
29. MCSO established a new squad within its Human Smuggling Unit called the
26
Employer Sanctions Unit that would work with the MCAO on investigating
27
complaints. SOF 30, 94-95. The mission of the HSU at the time was to provide law
28
20
enforcement services centered on crimes that involve illegal immigration . . . . SOF
96. The Employer Sanctions Unit, and later the Criminal Employment Squad, in turn,
was tasked with addressing the specific issue of employment of personnel using
fraudulent and or stolen identification for purposes of gaining and maintaining
employment. SOF 97; see also SOF 98.
The MCAO, for its part, assigned primary responsibility for enforcing LAWA,
including its identity theft provisions, to its Special Crimes Bureau. SOF 99. The HSU
had been working with the Special Crimes Bureau already on human smuggling cases.
SOF 109. The MCAO, under former County Attorney Andrew Thomas, assigned the
10
cases to the Special Crimes Bureau even though the Office already had a unit dedicated
11
to the enforcement of fraud and identity theft laws, called the Fraud and Identity Theft
12
Enforcement (FITE) Bureau. SOF 100. Before LAWA, FITE would sometimes
13
come across identity theft cases arising in the employment context, but it was not a
14
significant focus of the Bureaus work. SOF 102. There was no deficiency with how
15
FITE was handling those casesindeed, FITE had significant expertise with fraud cases.
16
SOF 101, 103. But the Thomas Administration made a determination to place the new
17
LAWA work in the bureau focuse[d] on criminal activity that violates immigration
18
law. SOF 104; see also SOF 105.
19
Starting in early 2008, members of the HSU and the Special Crimes Bureau began
20
meeting regularly to develop a strategy for working LAWA cases. SOF 30-31, 111.
21
One of the goals of the standing committee was to gather information about businesses
22
who were hiring undocumented immigrants. Thus, to the extent the agencies went
23
initially after employees in an effort to flip them against their employers, see SOF 32,
24
it would have been immigrant workers who would have been the target.
25
HSU and the Special Crimes Bureau worked closely together, initially under a
26
formal Interdepartmental Agreement, and later with their own independent funding
27
streams. SOF 50-51, 110. The MCSO would apprise MCAO ahead of time when it
28
would be conducting a search warrant operation and sometimes submit drafts of search
21
warrants for MCAO to review. SOF 112. And Special Crimes Bureau prosecutors gave
CEU detectives good props for the work they were doing. SOF 119. Statistical
analysis confirms the close relationship between the two unitsPlaintiffs expert found
that MCSO was particularly active in referring employment-related identity theft and
forgery cases to the MCAO for prosecution relative to other agencies, and that MCSO-
referred cases were primarily handled by Special Crimes as opposed to other bureaus.
SOF 115-17, 120.
The Sheriff (Arpaio) and County Attorneys (first Thomas, then Montgomery) have
shown a keen interest in the work of the special units that were enforcing the LAWA.
10
The Sheriff liked to be briefed on worksite identity theft operations in advance, would
11
show up to most of the operations, and would ask for statistics about the number of
12
undocumented immigrants who were arrested. SOF 121, 124-25; see also SOF 123.
13
He has even kept a personal file relating to employer sanctions and the work of the CEU.
14
SOF 122. Vicki Kratovil, the long-time Bureau Chief over Special Crimes, testified that
15
former County Attorney Thomas wanted to be kept apprised of statistics of illegal
16
immigration cases that her Bureau was handling. SOF 127. Thomas and Arpaio would
17
sometimes issue press releases together, publicly expressing the view that worksite
18
identity theft operations were helping to prevent the undercutting of wages and opening
19
up job opportunities for hard working United States citizens. SOF 89; see also SOF
20
90. Sheriff Arpaio felt strongly that his Office should be able to go forward with
21
enforcement actions even under circumstances where federal immigration authorities
22
would not, and that he could use state law to do so. See, e.g., SOF 91, 137.
23
For a brief time in between the Thomas and Montgomery Administrations, while
24
interim County Attorney Rick Romley was in office, the MCAO assigned responsibility
25
for employment-related identity theft and forgery cases back to the FITE Bureau. SOF
26
106. When Montgomery took office, however, he reversed the policy decision that
27
Romley had made, following through on a commitment he had made during his campaign
28
to restore the policies of the Thomas Administration regarding illegal immigration and
22
the partnership with Sheriff Arpaio. SOF 107-08. During the Montgomery
Administration, CEU has continued to work with the Special Crimes Bureau, and send
operations plans and shift summaries to the MCAO. SOF 113-14. The Office has also
continued to track the immigration status of defendants for statistical purposes. SOF
127.
The MCSO and MCAOs uniquely enthusiastic approach to enforcing the LAWA
was rewarded by the Legislature in the form of grant funding. See SOF 52, 54. In their
zeal, however, they also caused a significant amount of human suffering. MCSO worksite
operations were generally initiated by a tip from a member of the public calling into the
10
Illegal Immigration Hotline, by e-mail or other method. SOF 128, 130. Tips about
11
illegal employment were the largest category of calls to the hotline, SOF 130, and the
12
agency seems to have attempted to follow up on tips without much regard for the motive
13
of the tipster. SOF 33-39, 129; see also SOF 134.
14
15
SOF 131-33. Its
16
methods drew civil rights complaints and investigations, leading to a finding by the
17
Department of Justice Civil Rights Division that the agency was violating the rights of
18
Latinos, SOF 135, and a ruling by U.S. District Court Judge Murray Snow that the
19
MCSO was engaged in systematic racial profiling and Fourth Amendment violations on
20
immigration-related operations, SOF 136. See also SOF 138 (decision invalidating
21
MCSO search warrant for operation at Uncle Sams Restaurant), 139 (detailing
22
investigation of mishandling of evidence by HSU on operations). Even after Judge Snow
23
ordered the MCSO to stop detaining individuals solely on the basis of suspected unlawful
24
status in December 2011, the MCSO continued the practice, including on worksite
25
operations. SOF 137. During this time, Defendant Montgomery was aware of the legal
26
rulings against MCSO, SOF 142, but continued to partner with the MCSO on
27
workplace identity theft investigations.

SOF 146; see
28
23
also SOF 143-45, 147. These departures from the norm[] are probative of improper,
purposeful targeting of immigrants. Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 267 (1977).
Even if the Court should find that the County Defendants practices are not field
preempted, then it should find them conflict preempted. Neither MCSO nor MCAO
appears to have had any policy of trying to conform their enforcement practices to be in
line with federal guidelines. They did not consider whether employees might have been
subject to labor violations before proceeding with an arrest or prosecution. SOF 149-
50, 153; see also SOF 151. Indeed, in at least one case, the MCSO conducted a
10
worksite raid at a business that was under investigation by the U.S. Department of Labor
11
at the time. SOF 152. In another case where employees who had been arrested at a
12
business complained of serious workplace abuses, the MCSO investigated the employer
13
only for identity theft-related crimes. SOF 154-55. The result of the County
14
Defendants approach has been to put undocumented workers in an even more vulnerable
15
position than before, thus interfere[ing] with federal authorities election to prioritize
16
enforcement against employers rather than employees and the careful balance struck by
17
Congress with respect to unauthorized employment of aliens in IRCA. Arizona, 132 S.
18
Ct. at 2504.
19
20
4.
Any Voluntary Cessation Does Not Preclude Relief
The County Defendants have not stopped using state criminal laws to prosecute
21
undocumented immigrants for fraud in connection with their employment. Defendant
22
Montgomery has acknowledged that his Office continued to bring employment-related
23
cases under the forgery statute while the preliminary injunction was in place. SOF 156.
24
These cases include those that appear to involve undocumented workers. SOF 157. And
25
Defendant Arpaio would have used MCSOs resources to detain the individuals in the
26
County jail. SOF 158.
27
28
The fact that Sheriff Arpaio announced he would be voluntarily disbanding the
CEU in late 2014, six months after this lawsuit was filed, does not moot any part of
24
Plaintiffs case. As the Court previously observed, nothing prevents the MCSO from
resuming investigations and arrests at a later date. Doc. 133 at 11-12; see also City of
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 n.10 (1982) ([V]oluntary cessation
of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled
to leave the defendant . . . free to return to his old ways.) (citation omitted). To argue
mootness, Sheriff Arpaio bears a heavy burden to make it absolutely clear that the
allegedly wrongful behavior . . . could not reasonably be expected to recura burden
that cannot be met by his own assurances or even adoption of an internal policy. Bell v.
City of Boise, 709 F.3d 890, 898-901 (9th Cir. 2013) (quoting Friends of Earth, Inc. v.
10
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)). That possibility
11
is certainly foreclosed where, as here, a party discontinues enforcement in response to
12
litigation after a case is filed. SOF 159; see Nome Eskimo Community v. Babbitt, 67
13
F.3d 813, 816 (9th Cir. 1995); Friends of the Earth, Inc., 528 U.S. at 191-92.
Moreover, both Sheriff Arpaio and County Attorney Montgomery have expressed
14
15
interest in enforcing the worker identity provisions again. Sheriff Arpaio testified in his
16
deposition that he would look forward to resuming enforcement if the preliminary
17
injunction were lifted. SOF 160. And Defendant Montgomery announced recently to
18
the Associated Press he intends to resume enforcement in light of the Ninth Circuits
19
decision on the preliminary injunction appeal. SOF 161.
20
C.
Plaintiffs Have Standing for the Relief They Are Seeking
21
The Ninth Circuit did not disturb any of this Courts previous analysis regarding
22
standing, so its rulings on those issues remain the law of the case. See Doc. 133 at 6-18.
23
The main difference between the motion to dismiss stage and now is that, at the summary
24
judgment stage, Plaintiffs must support their allegations of injury, causal connection and
25
redressability with affidavits or other evidence. Lujan, 504 U.S. at 560-61. As discussed
26
below, the undisputed facts amply prove Plaintiffs standing.
27
//
28
25
1
2
1.
Puente Has Associational and Organizational Standing
The Court previously found that Puente had properly alleged and established both
associational standing and direct standing as an organization to seek declaratory and
injunctive relief. Doc. at 8-15.
a.
Puente Has Associational Standing Based on the Threat of

Injury to its Members
A membership organization has standing to sue on behalf of its members if (a)
its members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organizations purposes; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the
10
lawsuit. Doc. 133 at 8-9 (quoting Ecological Rights Found. v. Pac. Lumber Co., 230
11
F.3d 1141, 1147 (9th Cir. 2000)). The first prong is satisfied if at least one member has
12
standing. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). The second prong
13
is satisfied where the subject of the litigation is pertinent to the organizational purpose.
14
See Presidio Golf Club v. Natl Park Serv., 155 F.3d 1153, 1159 (9th Cir. 1998).
15
Here, record shows that at least three members of Puente have standing in their
16
own right because they face a credible threat of prosecution by Maricopa County
17
authorities under the worker identity provisions and forgery statute. See Thomas v.
18
Anchorage Equal Rights Commn, 220 F.3d 1134, 1138 (9th Cir. 2000) (holding that a
19
credible threat of prosecution is an injury that confers standing); Doc. 133 at 9. The Ninth
20
Circuit has adopted a three-part test to determine the presence of a credible threat of
21
prosecution, which looks to: (1) whether the plaintiffs have articulated a concrete plan
22
to violate the law in question; (2) whether the government has communicated a specific
23
warning or threat to initiate proceedings; and (3) the history of past prosecution or
24
enforcement under the statute. Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,
25
676 F.3d 829, 835 (9th Cir. 2012) (quoting Thomas, 220 F.3d at 1138). As the Court
26
previously observed, the presence of a specific warning is only one factor in determining
27
the existence of a credible threatit is less relevant when there has been a long history of
28
26
enforcement. Doc. 133 at 11; see also Valle del Sol, 732 F.3d at 1016; Lopez v. Candaele,
630 F.3d 775, 786-87 (9th Cir. 2010).

The concrete plan element is more than satisfied in this case. Puente members
3
4
Jane Doe I, Jane Doe II, and John Doe 1 (the Does) are undocumented immigrants who
are currently violating the worker identity provisions and state forgery statute by working
in jobs that they obtained using false Social Security numbers and green cards. SOF
170-83; see also SOF 168. They provided the false personal identifying information,
including on documents like employment applications and other work-related documents,
in order to demonstrate authorization to work in the United States. SOF 173, 177-78,
10
182-83. See also Doc. 133 at 10 (holding that the concrete plan element is satisfied where
11
an individual is currently violating the challenged provisions). There is also a long history
12
of enforcement of the challenged provisions against undocumented individuals like the
13
Does. See supra Pt. II.D. These undisputed facts establish the Does standing.10
14
The remaining prongs of the associational standing test are also established by
15
undisputed facts. Puente is a membership organization with a discrete, stable group of
16
members who share common interests and collectively set the organizations goals and
17
priorities. See SOF at 162-68; Hunt v. Wash. State Apple Adver. Commn, 432 U.S.
18
333, 344-45 (1977) (holding that an organization is a membership organization for
19
purposes of associational standing if it expresses the collective views and protects the
20
collective interests of its members or equivalents). Its mission to develop, educate, and
21
empower migrant communities to enhance the quality of life of our community
22
members is pertinent to this litigation, which addresses the arrest and prosecution of
23
undocumented residents of Arizona who provide false identity information and
24
documents to work. See SOF at 184; Doc. 133 at 13. Finally, the participation of
25
26
27
28
10
Further, the County Defendants recent statements of intent to enforce the worker
identity provisions, see supra at Pt. III.B.4, constitute specific threats that buttress the
credibility of the threat of prosecution. See Libertarian Party of Los Angeles County v.
Bowen, 709 F.3d 867, 871-72 (9th Cir. 2013) (finding that instructions on Secretary of
State website mandating compliance with requirements of challenged statute and memo
instructing that violators should be reported were a specific threat of enforcement).
27
individual members is not necessary, because individual members would assert the same
right asserted by Puentethat is, the right not to be subject to unconstitutional
enforcement of state lawsand their specific backgrounds and circumstances are
irrelevant to determining the constitutionality of the challenged laws or Defendants
practices. See Doc. 133 at 13.

b.
6
7
Puente Has Organizational Standing Based on Frustration

of Its Mission and Diversion of Resources
An organization also has standing to sue where it demonstrates a concrete and
demonstrable injury to [its] activities. Doc. 133 at 14 (quoting Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982)). This may be shown by (1) frustration of its
10
organizational mission; and (2) diversion of its resources to combat the [effects of the
11
particular law] in question. Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105
12
(9th Cir. 2004) (citing Fair Hous. Of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.
13
2002)). Here, the record establishes that Defendants enforcement of the worker identity
14
provisions and forgery statute has had both of these impacts.
15
First, Puentes mission has been frustrated by Defendants enforcement because
16
the arrest and prosecutions of undocumented workers has made it more difficult for
17
community members to participate in Puente activities. Some undocumented Puente
18
members have retreated from public lifeincluding participation in Puente meetings and
19
activitiesas a result of the climate of fear created by the Defendants enforcement of
20
the worker identity provisions and forgery statute. See SOF at 185. Members have also
21
been forced to reduce their participation in Puente activities because they or their family
22
members were incarcerated by the County Defendants, leaving them in crisis. SOF at
23
186.
24
Second, Puente has diverted its limited resources to responding to the effects of
25
arrests and prosecutions. Puente has devoted staff time, volunteer time, and financial
26
resources to supporting individuals who are detained under the worker identity provisions
27
and forgery statute and their families, including by providing housing and transportation
28
28
and helping individuals navigate the legal system. SOF at 187-96. Puente has also
devoted significant resources to educating its members and the public about enforcement.
SOF at 194. In order to do this, Puente had to divert resources away from its core
programs, including health and English programs. SOF at 196. Puente had no choice
but to divert its resources to respond to the crisis Defendants enforcement had created
for the migrant community in Maricopa County: had Puente failed to do so, the urgent
needs of its members and constituents would have gone unmet and, as described above,
its mission would suffer. SOF at 198. See Valle del Sol, 732 F.3d at 1018-19.
This frustration of Puentes mission and diversion of its resources is more than
10
sufficient to establish its standing. See id. (holding that diversion of resources to educate
11
and address members and constituents concerns about challenged law confers direct
12
organizational standing); Fair Hous. Council of San Fernando Valley v. Roommate.com,
13
LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (holding that educational campaigns targeting
14
discriminatory practices conferred organizational standing).
15
16
17
2.
Plaintiffs Reverend Frederick-Gray, Reverend Russell Andrew

Burnette, and Reverend Erin Tamayo Have Standing as
Municipal Taxpayers
As this Court has held, a municipal taxpayer may establish standing by showing an
18
improper expenditure of municipal funds. See Doc. 133 at 17 (quoting Cammack v.
19
Waihee, 932 F.2d 765, 770 (9th Cir. 1991). The undisputed facts establish that Plaintiffs
20
Frederick-Gray, Burnette, and Tamayo are all municipal taxpayers who pay both property
21
and sales tax to Maricopa County, including a special jail excise tax. See SOF at 199,
22
201-07; see also We Are Am. v. Maricopa Cty. Bd. of Sup'rs, 297 F.R.D. 373, 383 (D.
23
Ariz. 2013) (describing jail excise tax used to fund construction and operation of
24
Maricopa County jails). The record also shows that the County Defendants have spent
25
municipal taxpayer funds on enforcing the worker identity provisions and state forgery
26
statute in the employment context. See SOF at 57. Specifically, both MCSO and
27
MCAO use county tax funds to pay for their enforcement operations, including arresting
28
and prosecuting individuals under the challenged provisions, and detaining them in the
29
County jails. See SOF at 156-58, 199-200. Accordingly, Plaintiffs have municipal
taxpayer standing to challenge Defendants enforcement of the challenged provisions.

3.
3
4
Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez

Have Standing to Seek Expungement
Plaintiffs Cervantes Arreola and Estrada Fernandez seek a judgment declaring that
their convictions under A.R.S. 13-2009(A)(3), see SOF at 213, 216, were
unconstitutional, and expunging the convictions. Each of them was convicted for using
false identifying information to establish employment eligibility under federal
immigration law and was prosecuted pursuant to the County Defendants unconstitutional
policy and practice. SOF at 211-12, 214-15, 217; see supra Pt. III.B.1. Ms. Cervantes
10
Arreola was arrested in an MCSO worksite raid and prosecuted by MCAO, while Ms.
11
Estrada Fernandez was arrested by the Gilbert Police Department and prosecuted by
12
MCAO. SOF 211-12, 215. They have standing to seek this relief because there is an
13
irrefutable presumption that ongoing harm, in the form of collateral consequences
14
including the prospect of harsher punishment for a subsequent offense and ineligibility
15
for certain forms of immigration reliefresults from any criminal conviction. See Chaker
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v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Doc. 133 at 7-8.
17
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D.
Plaintiffs Meet the Other Requirements for Injunctive Relief

1.
Puente and the Taypayer Plaintiffs Are Entitled to a Permanent

Injunction Against the County Defendants Preempted
Enforcement Practices
The record establishes that Plaintiffs have satisfied each of the remaining factors
for a permanent injunction.
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The first non-merits factorthat the injury complained of is irreparable
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overlaps with the second factorthat there be no adequate legal remedy. Arizona Dream
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Act Coal., 818 F.3d at 920 (noting that irreparable harm is traditionally defined as harm
25
for which there is no adequate legal remedy). Plaintiffs have established that they will
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suffer irreparable injury in the absence of an injunction. As described above, Puente
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members face a threat of imminent prosecution. See supra Pt III.C.1.a. [I]f an individual
28
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or entity faces the imminent threat of enforcement of a preempted state law and the
resulting injury may not be remedied by monetary damages, the individual or entity is
likely to suffer irreparable harm. Doc. 133 at 28 (quoting Valle del Sol v. Whiting, No.
CV 10-1061-PHX-SRB, 2012 WL 8021265, at *6 (D. Ariz. Sept. 5, 2012), affd, 732
F.3d at 1029); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (It is
well established that the deprivation of constitutional rights unquestionably constitutes
irreparable injury.) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Money
damages cannot make up for the indignity of an unconstitutional criminal prosecution or
the resulting detention, family separation, and stigma of a lifelong criminal record. See,
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e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (holding that there
11
are no adequate remedies at law for imminent enforcement of a preempted law); see also
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Regents of Univ. of California v. Am. Broad. Companies, Inc., 747 F.2d 511, 520 (9th
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Cir. 1984) (reputational injury may constitute irreparable harm).
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The direct harm suffered by Puente as an organization as a result of the County
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Defendants enforcement, see sura Pt III.C.1.b, also constitutes irreparable injury. See,
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e.g., Valle del Sol, 732 F.3d at 1018, 1029 (holding that ongoing harms to
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[organizations] organizational missions constituted irreparable harm for purposes of
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preliminary injunction); see also Rent-A-Ctr., Inc. v. Canyon Television & Appliance
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Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) ([I]ntangible injuries, such as damage to
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ongoing recruitment efforts and goodwill, qualify as irreparable harm.) The health and
21
educational programs that Puente had to cancel in order to respond to are missed
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opportunities that money cannot restore. Cf. Arizona Dream Act Coal. v. Brewer, 818
23
F.3d at 919 (holding that loss of job opportunities constitutes irreparable harm).
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Additionally, the County Defendants use of taxes paid by Reverends Frederick-Gray,
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Tamayo, and Burnette to pursue enforcement they believe to be immoral and unjust, see
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supra Pt III.C.2; see also SOF 207-09, has caused them irreparable harm, which is
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properly redressed through an injunction. See Frothingham v. Mellon, 262 U.S. 447, 486
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87 (1923) (describing harm arising from misuse of taxpayer funds as direct and
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immediate and properly subject to permanent injunction); We Are America v. Maricopa
County Bd. of Suprs, 297 F.R.D. at 385-86 (granting permanent injunction to Maricopa
County taxpayers to prevent enforcement of unconstitutional policy).

The balance of hardships and the public interest also support a permanent
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injunction in this case. As this Court has found, enjoining enforcement activity that is
preempted poses limited hardship to Defendants and serves the public interest. Doc. 133
at 29-30; Valle del Sol, 732 F.3d at 1029 (holding that it would not be equitable or in the
publics interest to allow the state . . . to violate the requirements of federal law,
especially when there are no adequate remedies available) (quoting Arizona, 641 F.3d at
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366); Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) ([E]nforcement of an
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unconstitutional law is always contrary to the public interest.). Defendants would still be
12
permitted to enforce the challenged statutes in other cases not touching on the federally
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preempted field and to refer complaints to federal authorities for consideration.
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2.
Plaintiffs Cervantes Arreola and Estrada Fernandez are Entitled to a

Permanent Injunction Expunging Their Convictions
15
It is well settled that the federal courts have inherent equitable power" to expunge
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records of unconstitutional arrests or convictions. Maurer v. Los Angeles County
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Sheriff's Dept., 691 F.2d 434, 437 (9th Cir.1982). Although this power is not to be used in
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every case, it is entirely warranted where, as here, an individual has been convicted under
19
an unconstitutional application of a statute. See Order on Motion for Reconsideration,
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Doc. 440 at 3 ([A] conviction under an unconstitutional statute is properly expunged.);
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Shipp v. Todd, 568 F.2d 133, 134 n.1 (9th Cir. 1978) (noting that the power to expunge a
22
state arrest record should be reserved for cases like where the statute under which the
23
arrestee was prosecuted was itself unconstitutional) (quoting United States v. Linn, 513
24
F.2d 925, 927 (10th Cir. 1975).11 Further, Plaintiffs Cervantes Arreola and Estrada
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Whether the statute at issue is unconstitutional in all applications or unconstitutional as

applied to Plaintiffs and others like them should not matter for this analysis; in both
cases, the convictions were unconstitutional. See U.S. v. Sumner, 226 F.3d 1005 (9th Cir.
2000) (holding that criminal records involving unconstitutional state convictions may be
expunged in a civil rights action filed pursuant to 42 U.S.C. 1983 and 1985) (internal
quotation omitted); see also, e.g., Kowall v. United States, 53 F.R.D. 211, 216 (W.D.
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Fernandez may appropriate raise claims about the constitutionality of their convictions in
this 1983 suit, rather than through habeas corpus, because habeas is notand never
wasavailable to them. See Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002) (holding the
Heck v. Humphrey, 512 U.S. 477 (1994) rule, that a challenge to the validity of a
conviction must be brought in habeas, is inapplicable where habeas is unavailable
through no fault of the plaintiff).12
As the Court observed with respect to the expungement Plaintiffs, since the
Constitution is the ultimate expression of the public interest, equitable balancing is
inappropriate where a partys constitutional rights are at stake. Doc. 440 at 3 (quoting
10
Llewelyn v. Oakland Cty.Prosecutors Office, 402 F. Supp. 1379, 1393 (E.D. Mich.
11
1975). If the Court finds it necessary to engage in equitable balancing at all, however, the
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balance of hardships would favor Plaintiffs. The impact of expungement on Defendants
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of unconstitutional convictions is limited, while expungement would protect Plaintiffs
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from significant harm. See supra Pt. III.C.3.
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E.
The Court Should Grant an Injunction of Sufficient Scope to Ensure

Effective Relief to Plaintiffs
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The permanent injunction sought by Plaintiffs Puente and Rev. Frederick-Gray,
17
Burnette and Tamayo should prohibit the County Defendants from
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enforcing A.R.S. 13-2009(A)(3), the portion of A.R.S. 13-2008(A) that addresses
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actions committed with the intent to obtain or continue employment, or A.R.S. 13-
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2002 against individuals who commit fraud: (1) as part of the employment verification
21
process, and/or (2) to otherwise demonstrate authorization to work under federal
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Mich. 1971).
Plaintiffs Cervantes Arreola and Estrada Fernandez were only in custody for
purposes of habeas jurisdiction for a short period of time. See SOF at 218-21 (Ms.
Cervantes Arreola was on probation for seven months following entry of judgment and
sentencing); X (Ms. Estrada Fernandez was on probation for four and a half months
following entry of judgment and sentencing); 28 U.S.C. 2254 (providing habeas
jurisdiction to consider claims brought by individuals in custody in violation of the
Constitution or laws or treaties of the United States) (emphasis added). It was not
possible for them to exhaust their Arizona state court remedies by litigating a motion for
post-conviction relief in seven months or less. SOF at 222-23. Thus, they cannot be
faulted for not having brought their challenge through a habeas petition. Nor, obviously,
can they file a habeas petition now.
33
12
immigration law. This injunction should not be limited to the application of those laws to
the named Plaintiffs. As the Ninth Circuit has held, an injunction may extend benefits to
persons other than those before the Court if such breadth is necessary to give prevailing
parties the relief to which they are entitled. Easyriders Freedom F.I.G.H.T. v. Hannigan,
92 F.3d 1486, 1501-02 (9th Cir. 1996). Here, Puente asks for relief on behalf of its
membership; it would be impractical to require law enforcement officials to distinguish
between targets of enforcement who are Puente members or not. Further, it would not be
feasible to segregate the excise tax revenues paid by the taxpayer Plaintiffs and not apply
them towards enforcement. Under such circumstances, a less than complete . . .
10
injunction would deny Plaintiffs effective relief. Doc. 133 at 30 n.10; see also Lavan v.
11
City of Los Angeles , 797 F. Supp. 2d 1005, 1019 (C.D. Cal. 2011) (granting complete
12
injunction where it would likely be impossible for the City to determine whose property
13
is being confiscated); Bresgal v. Brock, 843 F. 2d 1163, 1169 (9th Cir. 1987) (endorsing
14
nationwide relief not limited to individual plaintiffs).

Given the long history of enforcement by these Defendants and Sheriff Arpaios
15
16
demonstrated difficulty with abiding by some federal court orders, see Melendres v.
17
Arpaio, No. CV-07-2513-PHX-GMS, 2016 WL 2783715 (D. Ariz. May 13, 2016),
18
Plaintiffs request thatif the Court grants summary judgment on their as-applied
19
claimthe Parties be permitted to submit further briefing or argument on any additional
20
implementation and monitoring mechanisms that may be appropriate to ensure
21
compliance. See Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971)
22
(Once a right and a violation [of the Constitution] have been shown, the scope of a
23
district courts equitable powers to remedy past wrongs is broad, for breadth and
24
flexibility are inherent in equitable remedies.); see also Sharp v. Weston, 233 F.3d 1166,
25
1173 (9th Cir. 2000).
26
IV.
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CONCLUSION
For the reasons set forth herein, Plaintiffs request that the Court grant partial
summary judgment in their favor.

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RESPECTFULLY SUBMITTED this 1st day of July, 2016.
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By
/s/ Anne Lai

Anne Lai
Sameer Ashar
University of California, Irvine School of
Law Immigrant Rights Clinic
Irvine, CA 92616-5479
Sarah Anchors
Hector Diaz
Edward J. Hermes
Jose A. Carrillo
QUARLES & BRADY LLP
Renaissance One
Jessica Karp Bansal
Network
Jessica Myers Vosburgh
Network
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Pasadena, CA 91103
Daniel J. Pochoda
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Ray A. Ybarra Maldonado

Maldonado, PLC
Phoenix, AZ 85016
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On the brief:
Jonathan Langer
Tryphena Liu
Edgar Navarrette
Mallory Whitelaw
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CERTIFICATE OF SERVICE
I hereby certify that on the 1st day of July, 2016, I electronically transmitted the
attached document to the Clerk's Office using the CM/ECF System for filing. Notice of
this filing will be sent by e-mail to all parties by operation of the Court's electronic filing
system or by mail as indicated on the Notice of Electronic Filing.
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Dated: July 1, 2016

Phoenix, Arizona
/s/ Debbie Hitchens

Debbie Hitchens
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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
2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 50

Puente - Arizona - Et - Al - v. - Arpai Proposed Plaintiffs' Motion For Partial Summary Judgment and Memorandum of Points and Authorities

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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 1 of 49

Anne Lai (pro hac vice)

Jessica Karp Bansal (pro hac vice)

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA