Puente - Arizona - Et - Al - v. - Arpai RESPONSE To Motion Re MOTION For Summary Judgment County Defendants' Joint Response in Opposition To Plaintiffs' Motion For Partial Summary Judgment

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 1 of 35
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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
By: DOUGLAS L. IRISH (002288)
J. KENNETH MANGUM (003077)
ANN THOMPSON UGLIETTA (013696)
Deputy County Attorney
CIVIL SERVICES DIVISION
222 North Central Avenue, Suite 1100
Phoenix, Arizona 85004
Telephone No. (602) 506-8541
Facsimile No. (602) 506-8567
[email protected]
[email protected]
[email protected]
Attorneys for Defendants Maricopa County and William Montgomery
IAFRATE & ASSOCIATES
649 North Second Avenue
(602) 234-9775
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Michele M. Iafrate, #015115

Kate C. Nelson, #030669
[email protected]
[email protected]
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Attorneys for Defendant Joseph M. Arpaio

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA

Puente Arizona, et al.,
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Plaintiffs,
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vs.
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Joseph M. Arpaio, Sheriff of Maricopa

County, Arizona, et al.,
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NO. 14-cv-01356-PHX-DGC
COUNTY DEFENDANTS JOINT
RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT
Defendants.
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Table of Contents
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I.
EXECUTIVE SUMMARY ....................................................................................... 3
II.
CONGRESS HAS NOT MANIFESTED ANY INTENT TO PREEMPT

COUNTY DEFENDANTS ENFORCEMENT OF THE IDENTITY THEFT
LAWS AND FORGERY LAW ................................................................................. 5
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1. The Presumption Against Preemption Applies..5
2. County Defendants Enforcement of the Identity Theft Laws and Forgery Law
Effectuates Traditional State Police Power Interest Without Having a
Practical Effect on Immigration.6
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3. County Defendants Enforcement of the Laws Effectuates Traditional

Public Safety Interests in Addressing the Incidence and Harms of Identity
Theft/Forgery.... 8
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a. County Defendants Enforcement of the Identity Theft Laws and

Forgery Law Is Not Field-Preempted As Applied10
b. No Conflict-Preemption As Applied ....13
c. County Defendants Enforcement Has No Practical Effect on the I-9
System As Applied...16
d. Plaintiffs Other Collateral Arguments Do Not Establish
Preemption As Applied ........18
e. There Is No Basis For Permanent Injunction....25
f. There Is No Basis For Expungement or Monitoring 27
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III.
CONCLUSION ....................................................................................................... 29
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By: DOUGLAS L. IRISH (002288)
J. KENNETH MANGUM (003077)
ANN THOMPSON UGLIETTA (013696)
Deputy County Attorney
CIVIL SERVICES DIVISION
222 North Central Avenue, Suite 1100
Telephone No. (602) 506-8541
Facsimile No. (602) 506-8567
[email protected]
[email protected]
[email protected]
Attorneys for Defendants Maricopa County and William Montgomery
649 North Second Avenue
(602) 234-9775
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Michele M. Iafrate, #015115

Kate C. Nelson, #030669
[email protected]
[email protected]
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA

Puente Arizona, et al.,
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Plaintiffs,
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vs.
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Joseph M. Arpaio, Sheriff of Maricopa

County, Arizona, et al.,
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NO. 14-cv-01356-PHX-DGC
COUNTY DEFENDANTS JOINT
RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT
Defendants.
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Defendants Maricopa County, Maricopa County Attorney William Montgomery and
Maricopa County Sheriff Arpaio1 (collectively, County Defendants) respond in opposition
to Plaintiffs Motion for Partial Summary Judgment (Plaintiffs PSJM). As shown by the
undisputed facts, law and argument presented in these Defendants Motions for Summary
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Judgment (and related Joinders) [Doc. 525, 534 and Joinders in Doc. 510], incorporated
herein by reference, and their Response below, Plaintiffs As-Applied Preemption Claim fails
as a matter of law. County Defendants are entitled to summary judgment in their favor.
Accordingly, Plaintiffs PSJM must be denied.2
This Response is supported by County Defendants Controverting Statement of Facts
(CDCSOF) filed concurrently herewith, as well as their Statements of Undisputed Material
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Facts filed in support of their Motions for Summary Judgment3 [(County Attorneys
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These Defendants object to Plaintiffs attempt to conflate and confuse the issues by
presenting their motion as though these Defendants are the same legal entity disregarding
their separate constitutional, statutory and jural status and ignoring their separate
enforcement responsibilities over violations of state criminal laws. In the interest of judicial
economy while protecting their due process rights, County Defendants have presented
combined Responses on common issues and individual Responses on separate issues in this
single Response Brief.
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Plaintiffs request for expedited consideration lacks good cause. This Courts preliminary
injunction order is vacated by the Ninth Circuits mandate issued on June 20, 2016.
Dkt.Entry 133, Puente Arizona v. Arpaio, No. 15-15211 (9th Cir.). Plaintiffs did not seek a
stay of the mandate. They filed the PSJM on the last day for dispositive motions, more than
a month after issuance of the mandate. They stipulated to an extension of time for the
parties summary judgment responses. By the foregoing conduct, they waived expedited
consideration of their PSJM. Furthermore, Plaintiffs imminent harm allegations lack
factual support. Plaintiffs have submitted no evidence showing that County Defendants are
enforcing violations of the Identity Theft Laws since issuance of mandate. The parties
respective summary judgment motions should be considered in the regular course of
dispositive motion practice per the Federal Rules of Civil Procedure and this Court.
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Plaintiffs and County Attorney Montgomery/Maricopa County have filed motions for leave
to file their respective proposed statements of fact in support of their summary judgment
motions in excess of the 10-page limit established in the Courts Case Management Order.
[Doc. 516, 518, 520, 521, 523, 540, 541, 543] As of this filing, the Court has not yet ruled
on the motions for leave, and these two parties proposed statements of fact are not yet
accepted for filing. Because they have no reason to believe that the motions for leave will be
denied, County Defendants are citing to County Attorney Montgomery/Maricopa Countys
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Statement of Facts (CASOF), Doc. 516, 518; Arpaios Statement of Facts (ASOF), Doc.
526)], incorporated herein by reference.
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MOTION FOR JUDICIAL NOTICE: The CDSOF cites and appends public records
from state criminal court cases filed in the Maricopa County Superior Court.
[CASOF,
38, 148, 226, 244, 245] These Defendants move for judicial notice of these records pursuant
to Fed. R. Evid. 201. These Maricopa County Superior Court records are properly subject to
judicial notice because they are public records and the existence and authenticity of these
records are not in dispute. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir.
2012). ("We may take judicial notice of undisputed matters of public record, including
documents on file in federal or state courts.") This Response and the CDSOF also cite to
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official information published on governmental websites. See infra at 21, n.10, n.11 and
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CDCSOF, 6, 81, 126, 127, 235. Because the accuracy of this official information is
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undisputed, judicial notice of them is proper. See Arizona Libertarian Party v. Reagan, 798
F.3d 723, 727 (9th Cir. 2015) (We may take judicial notice of official information posted on
a governmental website, the accuracy of which [is] undisputed.).
I. EXECUTIVE SUMMARY.
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In Puente Arizona, et al. v. Arpaio, et al., 821 F.3d 1101 (9th Cir. 2016), the U.S. Court of
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Appeals for the Ninth Circuit issued its unanimous decision granting Defendants appeal from
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this Courts preliminary injunction order [Doc. 133]. The Ninth Circuit found that Congress
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did not intend to preempt state enforcement of violations of A.R.S. 13-2008(A) and 132009(A)(3) (Identity Theft Laws) against any person who uses anothers identity for nonimmigration reasons. Puente Arizona, et al. v. Arpaio, et al., 821 F.3d at 1106. Reviewing
MCAO prosecutions in the record, the Ninth Circuit found that the Identity Theft Laws are
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not preempted in all applications. The Ninth Circuit concluded that Puente has not met its
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burden of showing a clear and manifest purpose to completely preempt these laws. Puente
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proposed statement of facts [Doc. 516, 518] in this Response and they are providing
responses to Plaintiffs proposed statement of facts [Doc. 520, 521, 523] in their CDCSOF.
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Arizona, 821 F.3d at 1108. It reversed this Courts holding on facial preemption, vacated the
preliminary injunction and remanded for determination on the merits as to the remaining
claims. Id.
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Pursuant to the law of the case doctrine and the mandate rule, this Court cannot vary from
the findings of fact and conclusions of law established by the Ninth Circuit. Plaintiffs lost on
appeal and cannot re-litigate issues already decided by the Ninth Circuit. See United States v.
Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (Under the [law of the case] doctrine, a court is
generally precluded from reconsidering an issue previously decided . . . a higher court in the
identical case. For the doctrine to apply, the issue in question must have been decided
explicitly or by necessary implication in the previous disposition.); Hall v. City of Los
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Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) (A district court that has received the mandate
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of an appellate court cannot vary or examine that mandate for any purpose other than
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executing it.). Application of the Ninth Circuits controlling analytical framework to the
undisputed facts establishes that Congress did not intend to preempt County Defendants
enforcement of violations of the Identity Theft Laws and A.R.S. 13-2002 (Forgery Law)
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(collectively, Employment Enforcement, Employment Prosecutions, Employment
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Submittals or Employment Charges) against any offender who uses anothers identity in
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employment circumstances not regulated by IRCAs federal employment verification system,
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8 U.S.C. 1324a and 8 C.F.R. 274a (I-9 System or I-9 Requirements).
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In enforcing these Laws, County Defendants exercise traditional state police powers to
protect the people of Maricopa County from the harms of identity theft/forgery. Concurrent
with County Defendants Employment Enforcement, Arizona went from number 1 to number
14 in the nation in identity theft victim complaints to the Federal Trade Commission.
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[CASOF, 7] Almost 50% of the Employment Prosecutions involved individual victims,
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many of whom suffered serious harms from the offenders criminal acts. [CASOF, 14
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17] The vast majority (approximately 90%) of Employment Prosecutions do not rely on
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evidence of an offenders use of anothers identity on a federal Form I-9. [CASOF, 59

61] MCAO formally prohibited prosecutorial reliance on the federal Form I-9 for charging or
trial in 2014. [CASOF, 74 - 76] The majority of cases (56%) do not originate from MCSO
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worksite investigations, which MCSO voluntarily stopped in 2014. [CASOF, 80 85]
Because Congress has not manifested any intent to preempt County Defendants enforcement
of violations of the Identity Theft Laws and Forgery Law against any person who uses
anothers identity for non-immigration reasons, See Puente Arizona, et al. v. Arpaio, et al.,
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821 F.3d at 1106 (emphasis added), County Defendants are entitled to summary judgment on
Plaintiffs As-Applied Preemption Claim and requested declaratory and injunctive relief as a
matter of law. [See also, Doc. 525, 534] Plaintiffs PSJM therefore must be denied.
II.
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CONGRESS HAS NOT MANIFESTED ANY INTENT TO PREEMPT

COUNTY DEFENDANTS ENFORCEMENT OF THE IDENTITY THEFT
LAWS AND FORGERY LAW.
1. The Presumption Against Preemption Applies.
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Plaintiffs arguments must be rigorously examined against the backdrop of the presumption
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against pre-emption.
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The Identity Theft Laws protect against harms resulting from the
offenders use of anothers identity on a false/fraudulent document. A.R.S. 13-2001(4),
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(10) and (12); 13-2008(A); 13-2009(A)(3). The Ninth Circuit rejected Plaintiffs argument
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that the Identity Theft Laws do not regulate in an area of historic state power. Puente
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Arizona, 821 F.3d at 1104. To the contrary, the Ninth Circuit held that the presumption
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against preemption applies to the Identity Theft Laws, finding that:

[W]hile the identity theft laws certainly have effects in the area of immigration, the text of
the laws regulate for the health and safety of the people of Arizona. [Citations omitted]
Therefore, only if Congresss intent to preempt the challenged statute is clear and
manifest may we deem the statute preempted.
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Id.
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The presumption against preemption also applies to the Forgery Law, which protects
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against harms resulting from the offenders making, possession and/or presentment of a
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false/fraudulent document with intent to defraud. A.R.S. 13-2001(3), (5), (6), (7), (8), (9),
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(12); 13-2002. See also Wyeth v. Levine, 555 U.S. 555, 565 (2009).
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County Attorney Montgomery and Sheriff Arpaio enforce violations of the Identity Theft
Laws and Forgery Laws pursuant to their constitutional and statutory duties to enforce against
public offenses and uphold duly enacted state criminal laws in accordance with their Oaths of
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Office. [CASOF, 4, 5] In doing so, they exercise traditional state police powers over
public health and safety matters. The presumption against preemption therefore applies to
their enforcement of these Laws.
2. County Defendants Enforcement of the Identity Theft Laws and Forgery

Law Effectuates Traditional State Police Power Interests Without Having a
Practical Effect on Immigration.
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Plaintiffs argue that County Defendants enforcement of the Laws is preempted because
the State allegedly passed them and the County Defendants allegedly enforce them with the
purpose of regulating immigration. But pre-emption does not turn on the intent of the State
legislature or the local authorities who enforce the law. Preemption relies on Congressional
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intent. Wyeth v. Levine, 555 U.S. 555, 565 (2009). See also, Puente Arizona, 821 F.3d at
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1106. Because congressional intent is the touchstone of preemption, the Ninth Circuit
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directed the reviewing court to determine whether the challenged state purpose/state action
has a practical effect on a federally reserved area. Id. at 1105 1106.
Reviewing the record on appeal which is substantially identical to what has been represented here,4 the Ninth Circuit found:
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The titles of the legislation and the legislative history show an intent on the part of
Arizona legislators to prevent unauthorized aliens from coming to and remaining in the
state. But these bills also were aimed at curbing the growing and well-
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In the Ninth Circuit, Plaintiffs relied upon the same set of failed historic legislation on
subjects other than identity theft, correspondence/emails not part of the legislative record, and
articles written by non-legislators. The Ninth Circuit ignored those immaterial submittals in
making its findings on legislative purposes, as must this Court. Plaintiffs additional
submissions here of after-the-fact deposition testimony of Pearce, Kavanaugh and Barnes, as
well as more non-legislative emails and documents subpoenaed from these deponents (and
persons/entities who never served as legislators), do not offer new information on legislative
purposes requiring any re-visitation of the Ninth Circuits findings. Further, Plaintiffs
additional submissions do not prove any causal link between the States enactment of the
Laws and the policies/practices of the County Defendants, and therefore they are irrelevant to
the As-Applied Preemption Claim under Monell v. Dept. of Social Services of City of New
York, 436 U.S. 658, 694 (1978).
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documented problem of identity theft in Arizona. Between 2006 and 2008,

Arizona had the highest per-capita identity theft rates in the nation, and onethird of all identity theft complaints in the state involved employment-related
fraud.
Id. at 1102 and n. 2 (emphasis added). The Ninth Circuit similarly found:
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We agree with Puente and the district court that the legislative history of both HB 2779
and HB 2745 show an intent on the part of Arizona legislature to prevent unauthorized
aliens from remaining in the state. But if that was the legislatures only goal, it failed.
The legislature also rectified the growing problem of employment-related identity
theft.
Id. at 1106 (emphasis added).
The Ninth Circuit confirmed that preemption analysis does not stop at state purposes.
Rather, the reviewing court must proceed to determine whether state purposes/state action
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have a practical effect on a federally reserved area:

[W]hen we do look to state action, we look primarily to a statutes effects to determine
if the state encroached on an area Congress intended to reserve. [Citations omitted]
Said another way, it does not matter if Arizona passed the identity theft laws for a good or
bad purpose what matters is whether the legislature succeeded in carrying out that
purpose. Thus, the crucial question is whether Congress intended to preempt the
identity theft laws given the practical effect of those laws.
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Id. at 1106 (emphasis added).
State actions not having such practical effect are not
preempted:
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We think not. . . . We think Congress would agree that the identity theft laws validly
apply to any person who uses anothers identity for non-immigration reasons.
Congress could not have intended to preempt the state from sanctioning crimes
that protect citizens of the state under Arizonas traditional police powers
without intruding on federal immigration policy. Thus, we hold that despite the
states legislative history, Congress did not intend to preempt state criminal
statutes like the identity theft laws.
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Id. at 1105 1106 (emphasis added). This holding is consistent with the Supreme Courts
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statement that the States vast residual powers are often exercised in concurrence with
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those of the National Government.
United States v. Locke, 529 U.S. 89, 109 (2000)
(emphasis added). Concurrent jurisdiction is especially logical where the States exercise a
historic police power, as is the case here. Puente, 821 F.3d at 1104.
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As set forth below and in County Defendants Motions for Summary Judgment, County
Defendants enforcement of the Identity Theft Laws and Forgery Law addresses traditional
serious public safety concerns and does not have a practical effect on the I-9 System or
immigration.
3. County Defendants Enforcement of the Laws Effectuates Traditional

Public Safety Interests in Addressing the Incidence and Harms of Identity
Theft/Forgery.
The undisputed evidence shows that the County Defendants exercise traditional state
police powers for the protection of the people of Maricopa County when they enforce
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violations of the Identity Theft Laws and Forgery Law in employment circumstances.
County Attorney Montgomery testified that it is his policy and practice to prosecute the
Identity Theft Laws and Forgery Law for the purposes of enforcing valid state laws,
addressing the elevated incidence of identity theft/forgery, deterring fraudulent conduct,
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protecting the people of Maricopa County, and providing justice for victims, without
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permitting any different treatment of any particular offender group including unauthorized
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alien offenders. He has made clear that his enforcement priorities are deterrence of crime and
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response to victim harms, not immigration issues.5 [CASOF, 4, 5; See also CDCSOF,
239]
Similarly, Sheriff Arpaio testified that, Im not in the employment business. I dont get
involved in who hires who (sic). My interest is only the violation of ID theft and other laws.
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[CDCSOF, 254] But rather than citing the Sheriffs sworn testimony, Plaintiffs cite to press
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releases as proof of MCSOs intent behind its enforcement of the identity theft laws. Press
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releases do not make policy. Indeed, the statistics compiled in this case show that there is no
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Plaintiffs reliance on former County Attorney Thomas political position statements about
problems caused by illegal immigration is misplaced. Thomas political position statements
are not actionable under Monell, because such statements are merely political viewpoints not
municipal policy. Further, Thomas political position statements were made long before
County Attorney Montgomerys term of office. There is no evidence that County Attorney
Montgomery adopted or ratified Thomas statements as MCAO policy. Montgomery
expressly testified the opposite. [CDCSOF, 228]
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meaningful difference between the effect of MSCOs enforcement of the identity theft laws
and the enforcement undertaken by other law enforcement agencies in Maricopa County.
[ASOF, 17, 18, 20]
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The County Defendants make identity theft investigations and prosecutions a priority
because the incidence of identity theft in Maricopa County is considerably higher than the
national rate. Annually, there are an estimated 170,000 cases of personal information theft in
Maricopa County. [CASOF, 6] In Arizona, employment-related identity theft was the
number one type of identity theft complained about in 2006 (39% of complaints), while it was
the third most common type complained about in 2015 (9% of complaints). [CASOF, 7]
Over this same time period, coinciding with County Defendants Employment Enforcement,
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Arizona went from ranking number one nationally to number 14 nationally in identity theft
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complaints per capita. [CASOF, 7] Defense criminal justice statistics and economics
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expert Dr. Cohen found that the drop in the rate of identity theft complaints can be attributed
to the drop in employment-related complaints in Arizona. [CASOF, 7] These objective
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data show that the incidence of employment-related identity theft victimization in Arizona has
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been decreasing over the period of County Defendants Employment Enforcement, which is
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consistent with County Defendants efforts to address genuine public safety concerns
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resulting from identity theft/forgery in employment circumstances. [CASOF, 4, 5, 7]
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Victims of identity theft suffer real harm. [CASOF, 7, 13 - 39] Almost half (49%) of
MCAOs Employment Prosecutions had at least one identifiable victim a rate that Dr.
Cohen found to be statistically significantly higher than MCAOs other forgery or identity
theft cases generally. [CASOF, 14] This high victim rate objectively demonstrates the
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genuine need for Montgomerys exercise of traditional state police powers in prosecuting
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these cases. Many of MCAOs Employment Prosecutions originate from victim complaints
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made to MCSO and other local police in Maricopa County. [CASOF, 36, 80, 82] Dr.
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Cohen found that serious harms are suffered by identity theft victims, including legal
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problems such as denial of public benefits, tax enforcement actions, debt collections, lawsuits,
and even arrests as a result of being improperly identified by police officers, as well as
psychological harm from victimization. [CASOF, 18, 20, 22 - 31]
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Victims in MCAOs Employment Prosecutions felt anxiety, fear, vulnerability, shock,
distress and frustration from employment-related identity theft. [CASOF, 3, 20, 24 - 31]
The investigation and prosecution of identity theft cases is often the vehicle that allows
victims to receive restitution, to defend themselves against a claim for back taxes, to rectify
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problems with their credit, and to receive necessary public services. [CASOF, 37, 38]
Victims also benefit from enforced cessation of use of the victims identities. [CASOF, 38]
Evidence of a conviction of identity theft also supports a victims request for restitution,
A.R.S. 13-603, a victims petition for a determination of factual innocence, A.R.S. 12-
771, and a victims petition for determination of factual improper party, A.R.S. 12-772.
The foregoing undisputed facts demonstrate the traditional state police power purposes
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effectuated by County Defendants prosecutions of the Laws.

a. County Defendants Enforcement of the Identity Theft Laws and Forgery
Law Is Not Field-Preempted As Applied.
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Field preemption is present where: 1) the regulatory framework is so pervasive that
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there is no room for state regulation; or 2) the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of state laws on the same subject.
Puente Arizona, 821 F.3d at 1103 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
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(1947)).
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In holding that Congress would agree that the [state] identity theft laws validly apply
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to any person who uses anothers identity for non-immigration reasons, the Ninth
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Circuit already rejected Plaintiffs repeated argument6 here asserting an alleged preemptive
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Plaintiffs argued before the Ninth Circuit, as they do here, that Congress has occupied a field
related to fraud. See Appellees Answering Br., Puente Arizona v. Arpaio, No. 15-15211, at
23 (9th Cir. filed Aug. 24, 2016) (the question . . . is whether Arizona entered into the
preempted field by regulating fraud by undocumented immigrants in seeking employment);
see also, e.g., PSJM at 13. Plaintiffs field has been a case study in moving targets. They
variously assert federal preemption in the field of fraud by employees to demonstrate
authorization to work in the United States, Pls Mot. 6, fraud in the employment context,
PSJM at 13, or in response to federal requirements for lawful employment, id. at 19, fraud
in response to the federal work authorization requirement, id. at 14 (emphasis added), and
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field of fraud in employment. Rather, the Ninth Circuit held that the state constitutionally
can exercise its traditional police powers to regulate an offenders use of anothers identity to
work in employment circumstances not intrusive of immigration policy. Id. at 1106.

The Ninth Circuit also already distinguished as irrelevant Plaintiffs cited cases in which
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States added their own penalties for immigrants violating federal law: Arizona,7 Valle del
Sol,8 and all other preemption cases where the statutory language singles out unauthorized
aliens, do not control here. Puente, 821 F.3d at 1107. Similarly, the Ninth Circuit already
found that federal immigration priorities do not establish preemption where state enforcement
applies to non-immigration circumstances. Id. at 1105, 1107-1108. The Ninth Circuit
found that mere tension between federal and state fraud schemes is not sufficient to rise to
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the level of a clear and manifest purpose to preempt the identity theft laws in their entirety.
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Id. at 1105.
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Plaintiffs re-asserted arguments ignoring these controlling findings must be
rejected.
We Are America9 does not support as-applied preemption here. That case held that a
policy of enforcement of Arizonas human smuggling law (A.R.S. 13-2319) singularly against
unauthorized aliens being transported across the border was intrusive on federal regulation of
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registration and movement of aliens within the country. We Are America, 297 F.R.D. at 391.
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Here, in contrast, as demonstrated in these Defendants Motions for Summary Judgment,
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County Defendants have a policy of enforcement of the Identity Theft Laws and Forgery Law
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against offenders who use anothers identity to complete a job application, state/federal
withholding tax form, payroll deposit form, and numerous other documents in employment
circumstances not regulated by the I-9 System. [CASOF, 12, 21, 41, 59 - 62, 64 - 67, 69,
81]
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all fraud by undocumented immigrants in the employment context, id. at 14, 16 (emphasis
added).
In a heading that appears to be an atavism from their earlier briefing, Plaintiffs suggest a
federal field governing employment of undocumented immigrants. Id. at 4. This Court has
already rejected that field on the basis of Arizona and was correct to do so. (Doc. 133 at 22)
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Arizona v. United States, 132 S.Ct. 2492 (2012).
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Valle del Sol v. Whiting, 732 F.3d 1006 (9th Cir. 2013).
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We Are America v. Maricopa County Bd. of Suprs, 297 F.R.D. 373 (D. Ariz. 2013).
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Plaintiffs go so far here as to contend that even job application[s] and state . . . tax
forms would be immune from state-law consequences. PSJM. at 16 (emphasis added).
However, this argument also has been rejected by the Ninth Circuit:
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Puente makes an argument for preemption based on the text of IRCA. Puente argues that
IRCA was drafted to allow only federal government prosecutions of those who use false
documents to obtain employment. See 8 USC 1324a(b)(5), d(2)(F)-(G). . . .Again, we
reject this argument . . . . IRCAs document use limitation is only violated when the
identity theft laws are applied in ways that rely on the Form I-9 and attached
documents.
Id. at 1108. Plaintiffs admitted in written discovery that these same Non-Form I-9 documents
are not regulated by IRCAs requirements. [CASOF, 58, 64]
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Plaintiffs argument furthermore would lead to absurd results. If the States are powerless
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to prosecute evasion of even their own tax laws, then they must also allow counterfeit food-
12
handler permits, professional licenses, and criminal background checks. This tidal wave of
13
14
15
lawlessness is neither hyperbolic nor accidental; it is the only end point for Plaintiffs theory
of preemption. The Ninth Circuit has made clear that Puentes argument is wrong, holding
that Arizona retains the power to enforce the [identity theft laws] in ways that do not
implicate federal immigration priorities. Id.
16
As discussed in the County Defendants Motions for Summary Judgment, the vast
17
majority (approximately 90%) of Employment Prosecutions rely on evidence of use of
18
anothers identity on documents other than the federal Form I-9, such as employment
19
20
21
applications and tax forms, which are not regulated by IRCA or federal immigration fraud
statutes. [CASOF, 59 61] Only 2% of Employment Prosecutions charged on a state
drivers license/state identification card and Form I-9, and only 3% of them charged on a
social security card and Form I-9.
[CDCSOF, 231]
These minuscule percentages
22
objectively demonstrate that County Defendants policy and practice are not to charge use of
23
anothers identity on a state drivers license/state identification card or social security card in
24
the I-9 System. Monell, 436 U.S. at 692; Villegas v. Gilroy Garlic Festival Assn, 541 F.3d
25
26
27
28
950, 966 (2008)(identifying ways to show a policy for Monell); Trevino v. Gates, 99 F.3d
911, 918 (9th Cir. 1996)(Monell claim failed where plaintiff did not show practice of
-12-
1
2
sufficient duration, frequency and consistency that the conduct has become a traditional
method of carrying out policy).
The undisputed evidence shows that offenders routinely use anothers identity on state
drivers license/state identification cards or social security numbers/cards to complete a
5
6
variety of non-Form I-9 documents such as job applications, tax forms, health forms, criminal
background checks, security forms, payroll deposit forms, and other employment documents
wholly outside the I-9 System. [CASOF, 69] This includes Plaintiffs Cervantes and Estrada
and Puentes Doe Members. [CASOF, 66 68, 70] County Defendants are exercising
valid state police powers in prosecuting fraudulent use of state-issued licenses.
28-3001 et seq.
10
11
12
13
A.R.S.
b. No Conflict-Preemption As Applied.
Conflict pre-emption is present where: 1) it is impossible to comply with both federal and
state law, or 2) where the state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress. Puente Arizona, 821 at 1103
(citing Arizona v. United States, 132 S.Ct. at 2500).
14
Plaintiffs argue that County Defendants enforcement of violations of the Laws create an
15
unconstitutional conflict with federal enforcement techniques. PSJM at 19-20. Tellingly,
16
Plaintiffs refer to different punishments, id. at 19, but they never close the loop by defining
17
the conduct at issue. The distinction in the conduct punished is fatal to Plaintiffs theory
18
19
because the various statutes punish different conduct, and federal authorities remain free to
pursue whatever enforcement techniques they choose for prosecuting immigration crimes and
fraud in the I-9 System.
20
No one disputes that a conflict in technique can trigger federal preemption. Arizona,
21
132 S. Ct. at 2505. But the conflict must involve two separate remedies . . . brought to bear
22
on the same activity. Id. at 2503 (quoting Wisc. Dept of Indus. v. Gould, 475 U.S. 282,
23
286 (1986)) (emphasis added). As explained above, the critical defect with Plaintiffs theory
24
25
is that it conflates federal crimes related to immigration and fraud against the I-9 System
with any other crime committed by an unauthorized alien seeking to work in the United
States. See Part I supra; See also Doc. 510 at 14 - 17, Doc. 534 at 19 - 21. This contrasts
26
27
28
-13-
with Arizona, which concerned a state-law crime for failing to comply with 8 U.S.C.
1304(e) or 1306(a). Ariz. Rev. Stat. 11-1509(A) (2011). As the Court explained, that state
law simply adds a state-law penalty for conduct proscribed by federal law. Arizona, 132
S. Ct. at 2501.
5
6
In contrast, the Identity Theft Laws and Forgery Law do not merely usurp the federal
governments ability to punish violations of federal law. The only overlap is the federal
identity theft law, but its text and history affirmatively prove that Congress intended state
laws to remain in effect and work concurrently with Section 1028. [See Doc. 534 at 7 8
(discussing 18 U.S.C. 1028)] Further assuring that the States are not merely bringing
additional punishments to bear on the same activity, Arizona, 132 S. Ct. at 2503, are
10
IRCAs express preemption provisions. 8 U.S.C. 1324a(b)(5), 1324a(d)(2)(F)-(G). These
11
provisions, which forbid using the federal Form I-9 and its attachments for any purpose
12
outside several enumerated federal laws, undermine any argument that Congress intended
broader preemption.
13
14
The Ninth Circuit held precisely that in Keams, 39 F.3d at 225
(explaining expressio unius est exclusio alterius in preemption context). Because of these
express preemption provisions are easily applied to cases in which a prosecutor uses the
15
federal Form I-9, they assure that States cannot tinker with the federal governments
16
calibration of force for federal offenses. Non-Form I-9 evidence is independently admissible
17
and supports lawful state prosecution of identity theft/forgery offenders even assuming the
18
19
Form I-9 evidence is suppressible. See, e.g., State v. Ochoa-Lara, 362 P.3d 606, 610-11
(Kan. App. 2015; State v. Reynua, 807 N.W.2d 473, 479-82 (Minn. App. 2011) (dismissing
state forgery charge based on the federal Form I-9, but allowing state forgery charges based
20
on other evidence), revd in irrelevant part by Minnesota v. Reynua, 2012 WL 3023328
21
(Minn. 2012). For example, Section 13-2009(A)(3) charges against Plaintiff Cervantes were
22
supported by admissible evidence of her use of a false identity on the Form A-4 and Form W-
23
4, notwithstanding other evidence of her use of a false identity on a Form I-9. [CASOF, 72]
24
25
As alleged primary support for its claim of conflict pre-emption, Plaintiffs rely on
arguments made in an amicus brief that was submitted to the Ninth Circuit by the Department
of Justice. The brief is not part of the factual record in this case, and the Supreme Court has
26
27
28
-14-
addressed this form of argumentation, saying, press releases, letters, and amicus briefs . . .
are merely precatory. Executive Branch communications that express federal policy but lack
the force of law cannot render unconstitutional an otherwise valid state law. Barclays Bank
PLC v. Franchise Tax Bd. of California, 512 U.S. 298, 329-30 (1994). As recently as last
5
6
term, the Court rejected another DOJ argument for preemption, again in an amicus brief, and
instead affirmed the Ninth Circuits defense of Nevadas sovereignty. Oneok, 135 S. Ct. at
1595. Not only is DOJ engaged in advocacy of its own, but the Ninth Circuit and Supreme
Court have consistently rejected its position.
In contrast, the record in this case includes abundant evidence that Congressand DOJ
itselfassume the validity of state identity theft and forgery laws. First, lawmakers enacting
10
the federal identity theft law, 18 U.S.C. 1028, explained that it would function as a
11
complement to state laws. S. Rep. No. 105-274, at 9 (1998); see also Doc. 534 at 7 -8;
12
13
Doc. 510 at 12-13. Second, the federal agency (the FTC) charged with combatting identity
theft refers victims to state law enforcement agencies. [CASOF, 34 36] See also Doc.
534 at 13; Doc. 510 at 12. Finally, DOJ itself readily uses convictions that result from
14
MCAOs employment prosecutions to justify deportation for unauthorized aliens who commit
15
these offenses under state law. See, e.g., Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281-
16
82 (9th Cir. 2014) (identity theft conviction); Espino-Castillo v. Holder, 770 F.3d 861 (9th
17
Cir. 2014) (forgery conviction).10 [CASOF, 40] See Doc. 534 at 7 -8. This consistency
18
19
across branches of the federal government lends itself to the only conclusion: Congress did
not intend for IRCA to divest States of their police powers to regulate crimes against their
residents. Nothing in the DOJs amicus brief or Plaintiffs argument changes that conclusion.
20
21
10
22
23
24
Additionally, the U.S. Citizenship and Immigration Service (USCIS) expressly

recognizes that aliens may be removable due to convictions under state law. See, USCIS,
Guide to Naturalization, 45 (2012) (If you have committed an aggravated felony, you may
be permanently ineligible for naturalization. The Immigration and Nationality Act and the
laws in each State determine what is considered an aggravated felony. (emphasis added),
available at http://www.uscis.gov/sites/default/files/files/article/M-476.pdf.
25
26
27
28
-15-
The federal government retains full authority over how to charge and punish violations of
its laws.
enforcement of the Laws on the grounds that unauthorized alien offenders might be motivated
to violate federal laws or might be tangentially effected in their ability to get away with
5
6
Plaintiffs offer no precedent to support preemption of County Defendants
federal crimes. Courts demand a much more direct conflict to strip a state (or its local law
enforcement) of its traditional police powers to enforce state criminal laws. See, e.g., Oneok,
135 S. Ct. at 1599.
7
8
9
c. County Defendants Enforcement Has No Practical Effect on the I-9

System As Applied.
Accordingly, it is law of the case that the federal government has not occupied a
10
preemptive field of fraud in employment. It is law of the case that the IRCA, federal
11
document fraud statutes and/or federal immigration enforcement priorities do not conflict-
12
preempt all enforcement of these Laws. County Defendants enforcement which protects the
13
people of Maricopa County from the incidence and harms of employment-related identity
14
15
theft/forgery is not preempted where such enforcement does not have a practical effect
on immigration, i.e., the I-9 System. See Puente Arizona, 821 F.3d at 1102 1108.
In their Motions for Summary Judgment, County Defendants show that their enforcement
16
of the Laws does not have a practical effect on the federal I-9 System and are not
17
preempted, therefore requiring entry of summary judgment in their favor on Plaintiffs As-
18
Applied Preemption Claim. [Doc. 525, 534]
19
Plaintiffs do not dispute that 23 separate and independent law enforcement agencies across
20
Maricopa County submitted proposed Employment Charges to MCAO. [CASOF, 44]
21
Plaintiffs do not dispute that MCAO does not control these 23 law enforcement agencies
including MCSO and MCSO does not control the other 22 law enforcement agencies or
22
23
MCAO. [CASOF, 42]

Plaintiffs do not dispute that no written policy of MCAO or MCSO directs employees to
24
enforce the Laws on the basis of the immigration status or for immigration consequences.
25
[CASOF, 46 51; CDCSOF, 241, 242] They do not dispute that there is no evidence
26
of disparate treatment of unauthorized aliens. [CASOF, 52 57; CDCSOF, 229, 230,
27
-16-
28
232, 233, 236] Dr. Cohen found that MCAO declines and adds employment-related identity
theft/forgery charges against unauthorized alien offenders similarly to other offenders and
that it charges unauthorized aliens in numbers similar to the Grand Jury and federal
prosecutors in Arizona. [CASOF, 46 57]
5
6
He found that his comparison between
federally charged offenders of identity theft (18 U.S.C. 1028) in Arizona and MCAO
charged offenders for violations of the Identity Theft Laws and Forgery Law shows that
MCAOs prosecutions are not disproportionately impacting Illegal Aliens. [CASOF, 53]
Dr. Earl testified that disproportionate in her report is not meant to argue that Defendants
rate of arrests or prosecutions of unauthorized alien (or Hispanic) offenders for violating the
Laws is disproportionate to the rate of unauthorized alien (or Hispanic) offenders violating
10
the Laws. [CASOF, 54] She testified that she did not make any such comparison and does
11
not know of any facts or data available to make any such comparison. [CASOF, 54] She
12
did not have access to any facts and she does not have any opinion that the race or
immigration status of an offender motivated arrests or prosecutions for violations of the
13
14
Identity Theft Laws. [CASOF, 54]

Plaintiffs do not dispute that 90% of Employment Prosecutions do not rely on evidence of
15
the I-9 Form. [CASOF, 59 61, 63] They do not dispute that these 90 percent rely on non-
16
I-9 documents such as employment applications, State Form A-4 Tax Forms, federal W-4 Tax
17
Forms, and other documents not required by the IRCA/I-9 System and not regulated by
18
19
20
federal immigration fraud statutes. [Id.; see also CASOF, 62] These undisputed facts
establish that it is the policy and practice of County Defendants not to enforce the Laws on
evidence of an offenders use of anothers identity in I-9 circumstances. [CASOF, 46 51,
59, 60, 61, 62]
21
They do not dispute that only 10% of Employment Prosecutions historically charged on a
22
federal I-9. [CASOF, 71, 73] The low percentage of cases charging the Form I-9 (9.5% for
23
Combination Case, and 0.5% for Form I-9 Only Cases) objectively demonstrates that I-9
24
25
charging was not a persistent and widespread practice. Monell, 436 U.S. at 692; Villegas v.
Gilroy Garlic Festival Assn, 541 F.3d 950, 966 (2008)(identifying ways to show a policy for
Monell); Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)(Monell claim failed where
26
27
28
-17-
plaintiff did not show practice of sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy).
capacity claim cannot be proven by respondeat superior theories arising out of errant I-9
charging. Monell, 436 U.S. at 691. In sum, the relatively few instances of I-9 charging do not
5
6
Plaintiffs official
rise to the level of actionable policy under Monell, 436 U.S. at 692. They do not dispute that
MCAO has not charged violations of the Laws on evidence of a federal I-9 since September
17, 2014, when the County Attorney adopted an official written policy prohibiting reliance on
7
8
the federal I-9 to establish the reasonable likelihood of conviction for charging purposes or as
evidence for trial. [CASOF, 74 76]
They do not dispute that the majority of Employment Prosecutions resulted from law
10
enforcement investigations other than MCSO worksite operations. [CASOF, 80 - 82]
11
These non-worksite investigations originated from victim complaints, victim complaints,
12
traffic stops, traffic accidents, drug screenings, thefts, shoplifting, and other traditional state
police power concerns not linked to immigration.
13
14
[Id.]
They do not dispute that
approximately 99% of non-worksite cases do not rely solely on the Form I-9. [CASOF, 81]
They do not dispute that MCSO worksite investigations were intended to develop evidence
15
for employer sanctions enforcement not preempted under Chamber of Commerce of the
16
United States v. Whiting, 131 S. Ct. 1968 (2011). [CASOF, 83] They do not dispute that
17
MCSO voluntarily stopped worksite investigations in December 2014. [CASOF, 85]
18
19
20
21
22
23
24
25
These undisputed facts prove that County Defendants enforcement of the Identity Theft
Laws and Forgery Law do not intrude on the I-9 System or immigration, and accordingly, it is
not preempted as applied. [Doc. 525, 534]
d. Plaintiffs Other Collateral Arguments Do Not Establish Preemption As
Applied.
Plaintiffs other collateral arguments also do not establish preemption as applied:
Notwithstanding alleged state and local goals of attempting to address problems
resulting from illegal immigration in the State, there is no evidence showing that County
Defendants Employment Enforcement proximately caused any objectively verifiable,
statistically significant number of unauthorized aliens to leave the State. Plaintiffs
26
27
28
-18-
anecdotal evidence indicates otherwise. Puentes director claims that Puentes unauthorized
alien members continue to live in Arizona and use other peoples identities for work despite
their alleged fear of enforcement of the Laws. [CDCSOF, 247] Doe Declarants make
similar claims. [CDCSOF, 249] Individual Plaintiffs Cervantes and Estrada and Uncle
5
6
Sams Declarants continue to live in Arizona even though they were arrested, prosecuted and
pled guilty to aggravated identity theft for work. [CDCSOF, 248, 250] A failed state
immigration purpose is insufficient to establish the prerequisite practical effect on
immigration required by the Ninth Circuits analytical framework. See Puente Arizona, 821
F. 3d at 1106 and n.9 (finding that alleged state goal of preventing unauthorized aliens from
remaining in the state failed; holding legislative history is not sufficient to doom the statute
10
11
12
where they can be validly applied in ways that do not implicate immigration).
The County Attorneys assignment of prosecution of these Laws to the
Special Crimes Bureau is not a preempted action. Montgomery testified that he assigned
Employment Prosecutions to Special Crimes prosecutors because they have expertise in
13
14
managing cases involving large volumes of documents, multiple defendants and inter-related
Grand Jury indictments, not for immigration reasons. He did not assign identity theft cases to
15
Special Crimes for the purposes of targeting individuals who are not legally present in the
16
United States. [CDCSOF, 238] Dr. Cohen found it makes sense for Bureaus to specialize in
17
certain areas of law enforcement it is a more efficient method of managing a prosecuting
18
19
20
agency. [CDCSOF, 236] Earl testified that she has no facts and no opinion establishing that
the alleged collaborative relationship between MCSO-MCAO caused any particular effect on
how employment-related identity theft/forgery cases were handled.
[CDCSOF, 237]
Making an administrative decision to staff these cases in Special Crimes is innocuous, does
21
not affect the immigration status of anyone, and does not conflict with any Congressional
22
immigration policies.
23
24
25
Special Crimes handling of a higher number of MCSO Employment Submittals than

other Bureaus is unsurprising and immaterial.
Unsurprising because MCSO submitted
approximately one-half of Employment Submittals and Special Crimes had the primary
prosecutorial assignment of reviewing Employment Submittals for all but a few months of the
26
27
28
-19-
relevant time period. [CDCSOF, 99, 234] Dr. Cohen found that annual trends showing an
increase in enforcement is to be expected for any new law that is put into place. [CDCSOF,
236] Immaterial because there is no evidence showing that Special Crimes prosecutors
reviewed MCSO Employment Submittals using a different charging standard. [CASOF,
5
6
46 - 51; CDCSOF, 236] The same MCAO charging standard reasonable likelihood of
conviction based on evidence submitted proving the specific elements of the crime -- is used
by all Bureaus. Special Crimes like the other bureaus charged employment-related identity
theft/forgery without regard to immigration status or immigration consequences. [CASOF,
46 51; CDCSOF, 236] Upon analyzing the charging data, Dr. Cohen found that Special
Crimes prosecutors and FITE prosecutors charge unauthorized alien offenders at similar rates
10
when they had primary responsibility to prosecute employment-related identity theft/forgery.
11
12
He concluded that there is no evidence consistent with alien status being the determining
factor for employment-related identity theft/forgery charging decisions made by these
Bureaus. [CDCSOF, 236]
13
14
Worksite complaints sent by the general public do not establish preempted
policy/practice. Review/follow-up on worksite complaints pertaining to alleged unlawful
15
activity is a generally accepted and well-established criminal law enforcement investigatory
16
procedure and is part of the statutorily-mandated employer sanctions enforcement process
17
under Arizonas employer sanctions laws, ARS 23-212 (B) - (D). The Supreme Court held
18
19
20
21
22
23
24
25
that those laws are not preempted in Chamber of Commerce of the United States v. Whiting,
131 S. Ct. 1968 (2011). Further, there is no evidence showing that the County Attorney or
Sheriff Arpaio adopted or ratified any discriminatory statements asserted in worksite
complaints. Worksite complaints found to be frivolous/discriminatory were rejected and were
not relied upon for worksite investigations. [CDCSOF, 225, 251]
MCAOs plea policies are immigration neutral; they apply to all identity
theft crimes and all offenders. [CDCSOF, 242] MCAO prosecutors are directed not to
consider immigration status or immigration consequences in making plea offers. [Id.] There
is no evidence showing that they violate that directive in prosecuting the Identity Theft Laws
and Forgery Law in employment circumstances. The requirement that a first time offender
26
27
28
-20-
plea to a designated felony (and a historical requirement for 3-month jail recommendation) is
not unique to identity theft but also applies to auto theft. That requirement was adopted to
address elevated rates of these crimes as a deterrent and therefore comports with the exercise
of traditional state police powers. [CDCSOF, 242] Pleas are a court supervised process.
5
6
They require mutual agreement between the State and the offender who is represented by
defense counsel. The State Superior Court must confirm the offenders free and voluntary
consent at a plea hearing.
The State Superior Court has final approval over the plea.
[CDCSOF, 243] There is no evidence showing that any of the pleas entered in MCAOs
Employment Prosecutions were coerced or violated any offenders constitutional rights.
MCAOs written policy strictly prohibits any prosecutorial charging or
10
plea decisions in reference to statistical data on immigration status. [CDCSOF, 241]
11
Maintaining statistics on individual characteristics of offenders such as immigration status is a
12
generally accepted practice in the law enforcement community and allows for accurate
reporting of criminal justice data for statistical purposes. See, e.g., ARS 41-1750, 41-
13
14
1751,
41-2201,
41-2205;
AAC
R13-1-01
[CDCSOF, 240]
16
governments maintenance of information regarding immigration status).
18
19
seq.;
http://www.azdps.gov/About/Organization/Technical_Services/Records_Identification.
15
17
et
See also, 8 U.S.C. 1373(b)(2) (prohibiting any restriction on local
Plaintiffs submit no evidence showing that the County had any fiscal
control over any specific operations or activities of the MCSO or the MCAO; in other
words, there is no claim that the Board of Supervisors had the ability or exercised any
micromanagement of the budget such that they could control or limit specific operations such
20
as those relating to work site raids or I-9 charging. Just as 42 U.S.C. 1983 does not
21
provide plaintiffs or courts carte blanche to micromanage local governments throughout the
22
United States, Connick v. Thompson, 563 U.S. 51, 68 (2011), so also does the Board of
23
Supervisors lack the ability, (much less the inclination), to micromanage the activities of the
24
25
Sheriff or the County Attorney. Indeed, as previously pointed out in its Motion for Summary
Judgment, it would be a violation of the County Attorneys or the Sheriffs Constitutionally
and statutorily established independence to intrude in law enforcement matters. See Doc.
26
27
28
-21-
1
2
513, Brief, Maricopa County MSJ on the Monell Issue, pp. 3-4 (independently elected County
officials have duties prescribed by the legislature and act independently of each other).
3
4
5
6
Plaintiffs argument for preemption based on federal laws aimed at
discouraging human trafficking and workplace discrimination wilts under scrutiny. Pls
Br. 6-7. On their own terms, those laws have nothing to do with identity theft and forgery.
Additionally, the Supreme Court has rejected the identical argument against a more direct
regulation of alien employment in Whiting. In the case of individuals holding T- and U-
Visas, federal law authorizes them to work while in the United States, thus obviating any
argument that they must commit identity theft or forgery in order to live in the country as
Congress intended. See 8 C.F.R. 274a.12(a)(16) (T-Visas), (a)(20) (U-Visas), (c)(25) (T-
10
Visas). The treatment of human-trafficking victims shows that Congress was aware of the
11
obstacles to working in the United States but declined to provide relief for all unauthorized
12
aliens. Wyeth, 555 U.S. at 576 (The case for federal preemption is particularly weak when
Congress is aware[] of the operation of state law and does not act to resolve it).
13
14
The same is true of the desire to avoid workplace discrimination. This argument
appeared in Whiting to attack a rule making explicit use of federal immigration tools to
15
discourage the employment of unauthorized aliens. 563 U.S. at 605 (addressing the claim
16
that employers will err on the side of discrimination). The Court rejected that argument,
17
reasoning that IRCA has its own anti-discrimination provisions [and] Arizona law certainly
18
19
20
does nothing to displace those. Id. at 606. If Arizonas requirement that employers use EVerify and simultaneously comply with state anti-discrimination laws did not trouble the
Whiting Court, then the more general laws regarding identity theft and forgery must a fortiori
pass constitutional muster.
21
There is no evidence that Employment Enforcement inhibited federal agencies from
22
undertaking federal actions such as giving protected status to whistleblowers. There is no
23
evidence showing that any employment-related identity theft/forgery offender established
24
25
he/she was eligible for a U/T-Visa upon an application made to USCIS.11 Even if an offender
11
26
Pursuant to INA 101(a)(15)(U), a person may Petition for U Nonimmigrant Status, i.e.,
apply for a U-Visa, which provides the person with immigration benefits to remain in the United
27
-22-
28
had taken such steps and been denied certification by MCSO/MCAO, the offender (and
Plaintiffs) would have no standing to complain in this Court because the courts have
determined that an agencys decision on certification is entirely discretionary and not subject
to judicial review. An agency is under no legal obligation to complete the Supp. B certification.
5
6
Catholic Charities v. Chertoff, 622 F.Supp.2d 865, 887 (N.D. Cal 2008); Ordonez Orosco v.
Napolitano, 598 F.3d 222 (5th Cir. 2010).
There is no evidence establishing that Individual Plaintiffs Cervantes and Estrada, Doe
Members and Abundez-Gonzales/Villaneuva Declarants or any other offenders in
Employment Prosecutions were victims of qualifying crimes such as abduction, abusive
sexual contact, false imprisonment, felonious assault, hostage, involuntary servitude,
10
prostitution, rape, slave trade, trafficking perpetrated by their employers.
11
evidence showing that they made any complaints to County Defendants about any such
12
crimes being perpetrated by their employers.
There is no
There is no evidence that they sought
certification for T- or U-Visas from MCSO/MCAO. Putting aside qualifying crimes, there is
13
14
no evidence showing that these individuals filed complaints with state or federal labor
agencies who oversee wage/hour disputes and workplace discrimination disputes.12
15
16
17
18
19
20
21
22
23
24
States and to receive Work Authorization. The U-Visa application, Form I-918, consists of
required forms and information. One of those forms is the Supplement B form, Form I-918B,
which may be certified by the law enforcement agency, the prosecuting agency, or the judge.
The information on the Supp. B form requiring certification includes (1) the person is the victim
of a listed qualifying criminal activity; (2) the person has substantial physical or mental abuse
from the criminal activity; (3) the person possesses information about the criminal activity; (4) a
government official investigating or prosecuting the criminal activity certifies that the person
was helpful, is helpful, or is likely to be helpful to law enforcement in investigating and
prosecuting the crime; and (5) the criminal activity violated the laws of the United States or
occurred in the United States. The Supp. B certifying agency must be a Federal, State or local
law enforcement agency, prosecutor or Federal or State judge that is responsible for the
investigation or prosecution, conviction or sentencing of the qualifying criminal activity. [See
also Supp. B. Certification Form, https://www.uscis.gov/sites/default/files/files/form/i918supb.pdf]
12
26
Uncle Sams Declarants complain that County Defendants did not assist them in their
alleged labor issues, even though County Defendants lack any enforcement authority over
civil labor disputes. However, these Declarants did obtain parole from immigration removal
in conjunction with their agreement to plea to a reduced charge and to testify against their
27
-23-
25
28
Plaintiffs once again cite a MOU between DHS and DOL. The MOU applies only to
DOLs civil enforcement of labor laws and DHSs civil enforcement of the IRCA. It does
not apply to criminal enforcement including not to County Defendants enforcement against
use of anothers identity in violation of the identity theft/forgery laws not intruding on the I-9
5
6
System. [CDCSOF, 5]
Plaintiffs13 repeat prior arguments that enforcement of the Laws affect
foreign relations, but these arguments are not supported by any specific facts. There is
7
no evidence that the U.S. government has a foreign policy (or domestic policy) in favor of
identity theft being committed by foreign nationals (or anyone else). In the absence of such
showing, the general presumption against preemption controls. See e.g., Faculty Senate of
10
Florida Intern. Univ. v. Winn, 616 F.3d 1206, 1211 (11th Cir. 2010)(Florida statute
11
prohibiting state-funded travel to countries sponsoring terrorism not preempted by federal
12
13
14
foreign powers, where no evidence of foreign policy in favor of travel to such countries); See
Dunbar v. Seger-Thomschitz, 615 F.3d 574, 579 (5th Cir. 2010)(Louisianas exercise of
traditional state powers over property claims not preempted by international treaty concerning
Holocaust property claims). See also, Medellin v Texas, 552 U.S. 491, 532 (2008) (neither
15
the treaty in question nor presidential foreign relations power trumps traditional state habeas
16
laws). In enforcing the Laws, the County Defendants are effectuating traditional state police
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powers for the health and safety of the people of Maricopa County. There is no evidence
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showing that they are attempting to establish labor policy, let alone labor policy contrary to
NAFTA or NAALC.
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employer in a separate case. [CDCSOF, 244] They later voluntarily withdrew from the
plea agreement and testimonial agreement after the entry of the preliminary injunction in this
case, and in doing so, they no longer qualified for parole. That was their choice, freely made
with their defense counsel. [CDCSOF, 244] Montgomery is awaiting the state courts
ruling on his motion to unseal the plea and testimonial agreements; if granted, he will seek
leave to supplement the record here. [CDCSOF, 245]
13
Plaintiffs appear to argue that they benefit from NAFTA, however, NAFTAs
implementing statute precludes private parties from challenging a State law on the basis of
NAFTA. 19 USC 3312(c); 3312(b)(2).
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Plaintiffs arguments for conflict preemption rely on hypothetical tensions between
state and federal law. Stripping States of their lawmaking power requires more. Beveridge v.
Lewis, 939 F.2d 859, 866 (9th Cir. 1991) (requiring actual conflict with [a] specific federal
regulation).
e. There Is No Basis for Permanent Injunction.
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County Defendants Motions for Summary Judgment and this Response demonstrate
that Plaintiffs claims and requests for relief fail as a matter of law. Accordingly, Plaintiffs
are not entitled to a permanent injunction.
A federal permanent injunction on I-9 charging is not appropriate because IRCA Form
I-9 Document Use Limitation already prohibits reliance on evidence of the Form I-9. 8
10
U.S.C. 1324a(b)(5), 1324a(d)(2)(F),(G).
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Limitation. Further, as discussed in County Defendants Motions for Summary Judgment, I-9
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County Defendants do not dispute this
charging does not amount to an actionable policy or practice, I-9 charging is prohibited per
Montgomerys formal policy, I-9 charging ceased years ago per that policy, and any errant I-9
charging by MCAO line prosecutors would be subject to a motion to dismiss the
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charge/suppress the evidence in state criminal court. [Doc. 534 at 23 24]

Similarly, the statistics compiled in this case show that MCSO does not rely on the
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Form I-9.
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MCAOs written policies prohibit it from prosecuting cases that law enforcement agencies
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submit based solely on the Form I-9. MCSO has no discernible interest in submitting cases
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[ASOF, 17] Reliance on the Form I-9 does not comply with the law, and
that cannot and will not be prosecuted.

It is particularly perplexing to imagine that it is necessary to enjoin MCSO from
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arresting undocumented immigrants while not similarly enjoining other law enforcement
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agencies in Maricopa County. Yet that is precisely Plaintiffs request. Assuming, arguendo,
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that this Court enjoined MCAO from prosecuting cases based solely on the Form I-9, it would
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only make sense that either a) all law enforcement agencies in the county be enjoined from
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basing arrests on the Form I-9, or b) no law enforcement agencies in the county be enjoined
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from basing arrests on the Form I-9. There is no logical or legal basis for treating MCSO
differently from other law enforcement agencies.
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MCSOs worksite investigations are not a sufficient basis for treating MCSO
differently from other law enforcement agencies in Maricopa County.
Defendants motions for summary judgment, the worksite investigations served the same,
valid enforcement purpose as investigations into individually reported instances of identity
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As discussed in
theft. [Doc. 525 at 11 - 15; Doc. 534 at 26 27] The only real difference between the
worksite investigations and other identity theft cases is their political palatability, a distinction
with no legal significance but one that Plaintiffs attempt to exploit at every opportunity.
Plaintiffs have requested an injunction of unreasonable scope. In addition to enjoining
arrests and prosecutions on the basis of the Form I-9, Plaintiffs ask this Court to prohibit the
enforcement of valid state laws with respect to any fraud that is committed with the intent to
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obtain or maintain employment. That request is wholly disconnected from any preemptive
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reach of the I-9 System.
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For example, Defendants would lose the ability to prosecute
someone who presented a fraudulent drivers license for a job as an over-the-road trucker or
school bus driver. Also untouchable would be offenders who gave a stolen social security
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number on a state tax form required by an employer, even if the victim of the identity theft
incurred substantial financial harm as a result. Offenders who present false identities to
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bypass criminal background checks for work in critical public infrastructure such as airports
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would be in an enforcement-free zone. Plaintiffs request is not supported by Ninth Circuits
17
analytical framework focusing on maintenance of traditional state police power enforcement
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not having a practical effect on immigration, and must be rejected.

Arizonas identity theft laws have been successful. The incidence of identity theft has
declined since their enactment and Defendants enforcement of the provisions. [CASOF,
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5 7] Victims have benefitted from Defendants enforcement. [CASOF, 7, 13 - 39] It
21
doesnt require expert opinion to know that if Defendants are enjoined from prosecuting
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identity theft when it occurs in employment, the rate of identity theft will rise as offenders
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learn they are insulated from any consequences. In weighing the equities of the case, this
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Court should consider the victims because they will suffer if an injunction is entered. This
already happened in connection with the preliminary injunction. [CASOF, 2, 3] What
Plaintiffs are really requesting is the unfettered ability to flout state law in furtherance of their
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violation of federal law (i.e. providing consistent documentation so employers do not realize
an offender has falsified the Form I-9). Such a result does not resemble equity.
f. There Is No Basis for Expungement or Monitoring.
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As part of their motion for partial summary judgment, Plaintiffs raise the prospect not
only of an injunction but of other remedies as well. Comprehensive briefing on remedies
should await this Courts dispositive rulings. Defendants briefly respond to two aspects of
Plaintiffs suggested additional remedies.
Plaintiffs have requested expungement for individual plaintiffs Cervantes and Estrada.
However, that is not an available remedy. Arizona does not provide for expungement of state
court convictions. Arizona does not provide for expungement, or removing the fact of state
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court convictions. Instead, Arizona provides for setting aside the conviction, or vacating the
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conviction. But the fact of conviction remains. See Russell v. Royal Maccabees Life Ins. Co.,
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193 Ariz. 464, 974 P.2d 443, 447 (App. 1998). federal courts can use equitable powers to
order expungement, but nevertheless, courts do not have the power to expunge a record of a
valid arrest and conviction solely for equitable considerations, because the expungement of
the record of a valid arrest and conviction usurps the powers that the framers of the
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Constitution allocated to Congress, the Executive, and the states. United States v. Crowell,
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374 F.3d 790, 793 (9th Cir. 2004), quoting United States v. Sumner, 226 F.3d 1005, 1009
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(9th Cir. 2000). Regardless, the Maricopa County Superior Court is the only entity that can
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expunge a conviction that occurred in its court, and the Superior Court is not a defendant in
this lawsuit. See A.R.S. 13-907(A) ([E]very person convicted of a criminal offense . . . may
apply to the judge . . . who pronounced sentence . . . to have the judgment of guilt set aside.)
County Defendants do not control the decision-making of the Superior Court with
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regard to state court post-conviction relief.
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Defendants also do not control the actions of the State Department of Public Safety with
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regard to state criminal history records. A.R.S. 41-1750. County Defendants cannot
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CR 32 et seq., Ariz. R. Crim. P.
properly be ordered to expunge convictions or records over which they have no control.
Cervantes and Estrada furthermore cannot establish any entitlement to post-conviction
relief under state court processes:
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County
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(a) Cervantes and Estrada pled guilty to aggravated identity theft. As they agreed in
their plea agreements, they waived the right to proceed to trial and the right to
appeal their conviction. [CASOF, 66, 67] They pled guilty because they found
it to be in their best interest to do so and because they believed they were in fact
guilty. In doing so, they waived defenses such as preemption that could have been
made to the trial court or the appellate court.
(b) Cervantes and Estrada claim that they would not have been incarcerated long
enough to bring a federal habeas petition on preemption. For this argument, they
rely on a Declaration from attorney Harold Higgins. County Defendants move to
strike this Declaration, which purports to offer expert opinions on appellate
practice in Arizona. Plaintiffs did not comply with this Courts Case Management
Order (as amended) requiring full and complete Fed. R. Civ. P. 26(a)(2)(A)-(C)
disclosures no later than April 1, 2016 when they appended the Higgins Declaration
to their statement of facts filed on July 1, 2016, three months after the expert
disclosure deadline and after close of expert discovery. Plaintiffs therefore are in
violation of this Courts Management Order and Fed. R. Civ. P. 26(a)(2)(A)-(C).
The appropriate sanction is that the Higgins Declaration should be stricken. This
Court also need not consider the Higgins Declaration because it is not helpful on
any issue of fact or any issue of law being decided by this Court. Fed. R. Evid.
702, 703.
(c) The rule in the Ninth Circuit is that if there is no prompt request for relief from an
alleged improper conviction, there can be no 1983 claim for relief. Guerrero v.
Gates, 442 F.3d 697, 705 (9th Cir. 2006), which case limited and explained the
holding of Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). Even if the habeas
relief might not have been completed before release from jail, the process could
have been initiated, thus showing the requisite intent to timely appeal the
constitutionality of the arrest and conviction. Cervantes and Estrada never
commenced such process before being released from jail.
(d) Cervantes and Estrada do not qualify for post-conviction relief pursuant to CR 32,
Arizona Rules of Criminal Procedure. Neither timely filed petitions for postconviction relief within the deadlines required by CR 32.4(a). Neither qualifies for
untimely post-conviction review under CR 32.4(a). They have not presented any
evidence showing that the requisite grounds for such relief (CR 32.1 (d), (e), (f), (g)
or (h)) are met. Even assuming this Court finds that Employment Prosecutions
cannot rely on the Form I-9 due to the IRCA Document Use Limitation, such
finding would not be a significant change in the law, State v. Shrum, 220 Ariz. 115,
15, 203 P.3d 1175, 1178 (2009). The Limitation pre-existed this litigation, and
furthermore it would not cause a state court to overturn their convictions under
Rule 32.1(g), because they were charged with and pled guilty to use of anothers
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identity on Non-Form I-9 documents, i.e., Form A- 4 and Form W-4. [CASOF,
66, 67]
Second, there is no basis upon which this Court should institute monitoring. Both
3
MCAO and MSCO have demonstrated responsiveness to this Courts orders. Information on
arrests and prosecutions is publicly available, and County Defendants are subject to Arizonas
public records request laws. A.R.S. 39 -121 et seq. And, prosecutions are public court
proceedings. Court filings are readily accessible.
III.
CONCLUSION.
County Defendants enforcement of the Laws is necessary to protect the health and safety
of the people of Maricopa County. County Defendants have a legitimate state police power
9
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interest in protecting against and responding to harms from an offenders use of anothers
identity such as harms to the true owners of identities, who are innocent victims impacted in
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almost 50% of Employment Prosecutions. They have a legitimate state police power interest
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in prosecuting violations of the Laws upon evidence of the offenders use of anothers
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identity in circumstances not regulated by the I-9 Requirements and I-9 System. Congress
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did not manifest any intent to preempt County Defendants prosecutions of the Laws without
a practical effect on the I-9 System or federal immigration. See Puente Arizona, 821 F.3d at
1105 - 1108. Their non-preempted applications of the Identity Theft Laws and Forgery Laws
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require summary judgment in their favor on Plaintiffs As-Applied Supremacy Clause Claim
as a matter of law.
RESPECTFULLY SUBMITTED this 19th day of August, 2016.
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BY: /s/ Ann Thompson Uglietta

ANN THOMPSON UGLIETTA
J. KENNETH MANGUM
Attorneys for Defendants Maricopa County and
Maricopa County Attorney Montgomery
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BY: /s/ Michele M. Iafrate w/permission

Michele M. Iafrate
Kate C. Nelson
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CERTIFICATE OF SERVICE
I hereby certify that on August 19, 2016, I caused the foregoing document to
be electronically transmitted to the Clerks Office using the CM/ECF System for filing
and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Honorable David G. Campbell

United States District Court
401 West Washington Street, SPC 58
Phoenix, AZ 85003-2158
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Anne Lai
Sameer Ashar
University of California, Irvine School
Of Law Immigrant Rights Clinic
401E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
[email protected]
[email protected]
Attorneys for Plaintiffs
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 North 7th Street, Suite 235
Phoenix, AZ 85014
[email protected]
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Jessica Karp Bansal

National Day Labor Organizing Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
[email protected]
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Jessica Myers Vosburgh

National Day Laborer Organizing Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
[email protected]
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Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
[email protected]
Hector J. Diaz
Sarah R. Anchors
Edward J. Hermes
Jose A. Carillo
Quarles & Brady LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
[email protected]
[email protected]
[email protected]
[email protected]
Cindy Pnuco
Dan Stormer
Joshua Piovia-Scott
Hadsell Stormer & Renick LLP
128 N Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
[email protected]
[email protected]
[email protected]
Nicholas Espiritu
National Immigration Law Center
3435 Wilshire Blvd. Suite 2850
Los Angeles, CA 90010
[email protected]
Michele Marie Iafrate
Iafrate & Associates
649 N 2nd Ave.
Phoenix, AZ 85003
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[email protected]
Attorney for Sheriff Joseph Arpaio
Brock Jason Heathcotte
Keith Joseph Miller
Office of the Attorney General
Civil Division
1275 W Washington St.
Phoenix, AZ 85007
[email protected]
[email protected]
Attorney for the State of Arizona
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/s/ G. Naranjo
S:\CIVIL\CIV\Matters\GN\2014\Puente AZ v Arpaio GN14-324\08 PLEADINGS\CR Captions\16-0815 Draft Combined Response Plff PMSJ.doc
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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 36

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Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 1 of 35

Michele M. Iafrate, #015115

Attorneys for Defendant Joseph M. Arpaio

FOR THE DISTRICT OF ARIZONA

Joseph M. Arpaio, Sheriff of Maricopa

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 2 of 35

EXECUTIVE SUMMARY ....................................................................................... 3

CONGRESS HAS NOT MANIFESTED ANY INTENT TO PREEMPT

1. The Presumption Against Preemption Applies..5

3. County Defendants Enforcement of the Laws Effectuates Traditional

a. County Defendants Enforcement of the Identity Theft Laws and

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 3 of 35

Michele M. Iafrate, #015115

Attorneys for Defendant Joseph M. Arpaio

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Joseph M. Arpaio, Sheriff of Maricopa

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 4 of 35

Defendants Maricopa County, Maricopa County Attorney William Montgomery and

Maricopa County Sheriff Arpaio1 (collectively, County Defendants) respond in opposition

Accordingly, Plaintiffs PSJM must be denied.2

This Response is supported by County Defendants Controverting Statement of Facts

(CDCSOF) filed concurrently herewith, as well as their Statements of Undisputed Material

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 5 of 35

526)], incorporated herein by reference.

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 6 of 35

explicitly or by necessary implication in the previous disposition.); Hall v. City of Los

(collectively, Employment Enforcement, Employment Prosecutions, Employment

employment circumstances not regulated by IRCAs federal employment verification system,

8 U.S.C. 1324a and 8 C.F.R. 274a (I-9 System or I-9 Requirements).

[CASOF, 7] Almost 50% of the Employment Prosecutions involved individual victims,

evidence of an offenders use of anothers identity on a federal Form I-9. [CASOF, 59

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 7 of 35

worksite investigations, which MCSO voluntarily stopped in 2014. [CASOF, 80 85]

CONGRESS HAS NOT MANIFESTED ANY INTENT TO PREEMPT

offenders use of anothers identity on a false/fraudulent document. A.R.S. 13-2001(4),

against preemption applies to the Identity Theft Laws, finding that:

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 8 of 35

their enforcement of these Laws.

2. County Defendants Enforcement of the Identity Theft Laws and Forgery

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 9 of 35

documented problem of identity theft in Arizona. Between 2006 and 2008,

have a practical effect on a federally reserved area:

Id. at 1106 (emphasis added).

State actions not having such practical effect are not

those of the National Government.

United States v. Locke, 529 U.S. 89, 109 (2000)

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 10 of 35

3. County Defendants Enforcement of the Laws Effectuates Traditional

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 11 of 35

[ASOF, 17, 18, 20]

resulting from identity theft/forgery in employment circumstances. [CASOF, 4, 5, 7]

Case 2:14-cv-01356-DGC Document 572 Filed 08/19/16 Page 12 of 35

Victims in MCAOs Employment Prosecutions felt anxiety, fear, vulnerability, shock,

effectuated by County Defendants prosecutions of the Laws.