Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 1 of 30

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

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Attorneys for Defendant State of Arizona

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et. al.,

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

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Plaintiffs,

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MOTION FOR SUMMARY

JUDGMENT BY DEFENDANT
STATE OF ARIZONA

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v.

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Joseph M. Arpaio, Sheriff of Maricopa

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

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Defendants.

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Defendant State of Arizona asks this Court to grant summary judgment in its

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favor pursuant to Federal Rule of Civil Procedure 56 with respect to all claims for relief

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in Plaintiffs Second Amended Complaint (Doc. 191) because there is no genuine

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dispute as to material facts and Defendant State of Arizona is entitled to judgment as a

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matter of law. This motion is supported by the accompanying Memorandum of Points

and Authorities, and Defendant Arizonas Statement of Facts.

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RESPECTFULLY SUBMITTED this 1st day of July, 2016.
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Mark Brnovich
Attorney General

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

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

STATEMENT OF THE CASE

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In 1996, Arizona became the first State in the nation to criminalize identity theft.

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(Defendant Arizonas Statement of Facts, AZSOF 1.) Every other State as well as the

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federal government has followed Arizonas lead. (AZSOF 2.) Many States statutes

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include express references to employment as a motive for identity theft, just as Arizonas

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Identity Theft Laws do. 1 (AZSOF 3.)

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Prior to the laws enactment, arrests and charges for identity theft in Arizona grew

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from approximately 300 in 2001 to approximately 1,500 in 2007. (AZSOF 4.) During

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this timeframe, per-capita complaints of identity theft in Arizona rose to the highest in

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the nation, with employment-related identity theft comprising approximately one-third of

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Arizona follows this Courts example of referring to the contested provisions of A.R.S.
13-2008(A) & 13-2009(A) as the Identity Theft Laws.
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those complaints. (AZSOF 5.) In 2007, the Arizona legislature amended A.R.S. 13-

2008(A) and A.R.S. 13-2009(A) to include provisions criminalizing identity theft with

the intent to obtain or continue employment.

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By 2014, employment-related identity theft comprised only 13% of complaints,

down from 33% in 2008. (AZSOF 7.) Enforcement of the Identity Theft Laws has been

widespread and neutral. Between 2010 and 2014, the Maricopa County Attorneys

Office filed approximately 974 employment-related identity theft cases in state criminal

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court. (AZSOF 8.) The criminal defendants included U.S. citizens, authorized aliens,
and unauthorized aliens. (AZSOF 9.)
II.

RELEVANT PROCEDURAL STATUS OF THE CASE

On June 18, 2014, seven years after the Identity Theft Laws enactment, Plaintiffs

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filed their Complaint (Doc. 1). Plaintiffs filed their First Amended Complaint (Doc. 23)

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on August 7, 2014, and their Motion for Preliminary Injunction (Doc. 30) the next day.

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The County Defendants filed motions to dismiss (Docs. 53, 55) on September 10, 2014,

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and the State joined those motions the next day (Doc. 57). After oral argument on the

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competing motions, the Court granted a preliminary injunction and denied the motions to
dismiss (Doc. 133) on January 1, 2015.
Defendants appealed the grant of a preliminary injunction to the Ninth Circuit
Court of Appeals. After oral argument, the Court of Appeals vacated the preliminary

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injunction and remanded the case with instructions. Puente Arizona v. Arpaio, 821 F.3d

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1098 (9th Cir. 2016). Plaintiffs petitioned for a panel rehearing and for rehearing en

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banc on May 17, 2016; the Ninth Circuit denied the petitions on June 9, 2016, and filed

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the Mandate on June 20, 2016.

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Meanwhile, Plaintiffs filed their Second Amended Complaint (Doc. 185) on June

18, 2015, and refiled it with a cosmetic correction (Doc. 191) on July 7, 2015 (the

SAC). Defendant State of Arizona filed its Answer (Doc. 192) to the SAC on July 16,

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2015. The parties completed discovery on June 17, 2016.

III.

To survive a motion for summary judgment, Plaintiffs must establish that there is

STANDARD OF REVIEW UNDER RULE 56.

a genuine issue of material fact that must be resolved by a trial. Matsushita Elec. Indus.

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). Plaintiffs must do more
than simply show that there is some metaphysical doubt as to the material facts. Id.
[T]he inquiry involved in a ruling on a motion for summary judgment
necessarily implicates the substantive evidentiary standard of proof that would apply at

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the trial on the merits. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

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The mere existence of a scintilla of evidence in support of the plaintiff's position will be

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insufficient; there must be evidence on which the jury could reasonably find for the

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plaintiff. Id.

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IV.

CONGRESS HAS NOT CLEARLY AND MANIFESTLY

PREEMPTED THE IDENTITY THEFT LAWS.

Plaintiffs allege that federal regulation of immigration prevents state regulation of

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identity theft. Specifically, they assert that the Identity Theft Laws facially violate the

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Supremacy Clause and that the Maricopa County Defendants application of those

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statutes and Arizonas forgery statute, A.R.S. 13-2002, likewise violate the Supremacy

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Clause. (Doc. 191, 215-220.) These arguments are mistaken.

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The Identity Theft Laws never mention immigration status.

Nor do they

incorporate immigration status by requiring anyone to prove legal presence. The laws
apply on identical terms to United States citizens, authorized aliens, and unauthorized

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aliensand members of all three groups have been prosecuted for violating them.

(AZSOF 9.) Moreover, the conduct addressed by the Identity Theft Laws is separate

from fraud. Identity theft does not require fraud, either on Form I-9 or anywhere else.

Because of their uncontested neutrality, the Identity Theft Laws are unlike any of

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the previous statutes found to violate federal supremacy on immigration. See, e.g.,

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Arizona v. United States, 132 S. Ct. 2492 (2012); Valle del Sol, Inc. v. Whiting, 732 F.3d

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1006 (9th Cir. 2013); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013).

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Where courts have found preemption, the challenged statute related directly to

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immigration, independent of any other police-power interest on the part of the State. In

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Arizona, for example, the statute referred expressly to a person who is unlawfully

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present in the United States and who is an unauthorized alien and required such persons

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to carry federal immigration cards. Ariz. Rev. Stat. 13-2928(C) (2010). The Identity

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Theft Laws, by contrast, are silent on immigration.

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Unlike the statute in Arizona, the Identity Theft Laws rest on the States historical

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interest in protection of the lives, limbs, health, comfort, and quiet of all persons.

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Medtronic Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quotation omitted).

Plaintiffs

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contested this point in the Ninth Circuit, arguing that the Identity Theft Laws were not

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within Arizonas historic police power. Puente, 821 F.3d at 1104. The Ninth Circuit

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reject[ed] this argument. Id. As a result, the Identity Theft Laws are not superseded

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unless that was the clear and manifest purpose of Congress. Arizona v. U.S., 132 S. Ct.
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2492, 2501 (2012) (citation and quotation marks omitted; emphasis added). Plaintiffs

have yet to identify precedent in which the presumption of constitutionality applies yet

courts find preemption.

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No one disputes that the Immigration Reform and Control Act (IRCA) includes

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provisions related to employment or that those provisions could displace state law. That

undisputed fact does not, however, imply that each of the many state statues that make

some reference to employment rises to the level of upset[ting] the balance struck by the

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Immigration Reform and Control Act of 1986 (IRCA). Arizona, 132 S. Ct. at 2503.

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Triggering preemption requires much more. Identity theft is properly the subject of state

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police powers, and Arizonas law presents no obstacle to the enforcement of IRCA or

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any other federal law.

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A. The Identity Theft Laws Are Not Facially Preempted.

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The Ninth Circuits recent opinion in this case forecloses Plaintiffs facial

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challenge to the Identity Theft Laws: Puente is not likely to succeed on, and has not

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raised serious questions about, the merits of its facial challenge. Puente, 821 F.3d at

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1103.

There is no genuine dispute that the Identity Theft Laws have obvious

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constitutional applications unrelated to unauthorized alien labor. Id. at *4. Indeed,

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there is no genuine dispute that the statutes have been used by the Defendants to

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prosecute such crimes in a valid constitutional manner. (AZSOF 9.) Therefore, the

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statutes are not facially preempted, and Defendants are entitled to judgment as a matter
of law on Plaintiffs claim of facial preemption.
More interesting is the implication of the Ninth Circuits decision for the
remaining as-applied preemption claims. The federal legislation on which Plaintiffs
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facial argument relied is the same legislation that they allege demonstrates a

congressional intent to preempt the Identity Theft Laws as applied to certain individuals.

But the federal statutes are general and apply to everyone. The congressional intent they

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evince is to prevent everyone from, for example, counterfeit[ing], us[ing], or

accept[ing] false documents to satisfy the employment-verification process. 8 U.S.C.

1324c(a). Nothing in the federal statutes indicates that Congress intended them to

regulate only unauthorized aliens. As a result, the various anti-fraud provisions that

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Plaintiffs identify either preempt all applications of the Identity Theft Laws or none of

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them. Plaintiffs acknowledged as much in their petition for rehearing: It is of little

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consequence that Plaintiffs framed their challenge to the worker identity provisions on

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this appeal as a facial one. Petn for Rehg & Rehg En Banc, Puente v. Arpaio, No.

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15-15211, at 15 (9th Cir. filed May 16, 2016). For that reason, this Court was correct to

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consider Plaintiffs facial claim first. And the correct outcome now is to conclude that

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Congress did not intend to prevent the States from enacting laws preventing everyone

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from committing identity theft.

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B. The Identity Theft Laws Do Not Encroach on Any Federal Field.

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Field preemption occurs when a State attempts to regulate in a field that Congress

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has determined must be regulated by its exclusive governance. Arizona, 132 S. Ct. at

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2501. Exclusive governance is not a casual term. It requires a web of federal laws so

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pervasive . . . that Congress left no room for States to supplement it. Rice, 331 U.S. at

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230 (emphasis added). Combining the doctrines of field preemption and as-applied

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challenges makes for an awkward task: Plaintiffs must show that Congress clearly and

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manifestly intended to occupy a field of law for one subset of the population, but not for
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others. How generally-applicable federal statutes could ever demonstrate this intent is

difficult to imagine, but it certainly has not occurred here.

The easiest test for field preemption is whether the state and federal statutes

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concern the same activity. The most instructive precedent is Arizona, 132 S. Ct. at 2501-

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immigration status, required affected persons to carry a federal immigration card, and

The field-preempted provision in Arizona applied on the basis of federal

made failure to do so a state crime. The Supreme Court held that this use of federal law

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encroached on a field fully occupied by Congress. Id. at 2502. Importantly, that field

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was narrow and had already existed in precedent for 70 years: the Federal Government

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has occupied the field of alien registration. Id. at 2502 (citing Hines v. Davidowitz, 312

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U.S. 52 (1941)). The precise overlap in Arizona between state law and a field already

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assigned to the federal government made clear that the State was not merely
supplementing federal law where Congress had left that possibility open.
While the field of alien registration belongs exclusively to the federal
government, identity theft does not. The conduct at issue in this case is taking the

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identity of another person . . . with the intent to . . . obtain or continue employment.

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Ariz. Rev. Stat. 13-2008(A) and 2009(A)(3). The Identity Theft Laws do not include

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elements requiring that the identity thief take any steps to circumvent IRCAs Form I-9

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process or commit any type of fraud.

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The field Plaintiffs propose is built around fraud. Specifically, they assert a

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federally-occupied field of fraud in the employment verification process. (SAC 29-

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37.) The problem with this proposal is that IRCAs anti-fraud provisions have such

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narrow applicability that Plaintiffs cannot prove a clear and manifest intent to preempt
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general state laws governing identity theft and forgery (and if they could, the result

would have been the facial preemption the Ninth Circuit rejected). Moreover, if any

doubt remained, Congress extinguished it in 1998 with enactment of a more specific

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federal law governing identity theft and intended to complement existing state laws.
1. Fraud Is a Different Crime from Identity Theft or Forgery and
thus Federal Anti-Fraud Provisions Belong to a Different Field.
IRCAs anti-fraud provisions confine themselves to fraud against the federal

employment-verification system. 8 U.S.C. 1324c (defining IRCAs fraud provision for

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purposes of this chapter); 18 U.S.C. 1546(b) (criminalizing fraudulent use of

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identifying documents for the purpose of satisfying a requirement of section 274A(b) of

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the Immigration and Nationality Act.). This textual limitation is significant because,

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even for implied preemption, the pre-emptive scope of a federal law is governed

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entirely by [its] express language, meaning that matters beyond that reach are not pre-

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empted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992); accord Keams v.

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Tempe Tech. Inst., Inc., 39 F.3d 222, 225 (9th Cir. 1994) (Congressional narrowness

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and precision in preempting some state laws cuts against an inference of a Congressional

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intention to preempt laws with a broad brush). Thus, the anti-fraud provisions in

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federal immigration law only bolster the conclusion that Congress did not intend to

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preempt non-fraud crimes unconnected to the provisions of the INA or IRCA.

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This landscape is analogous to Dans City Used Cars, Inc. v. Pelkey, 133 S. Ct.

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1769 (2013), wherein the Supreme Court considered a preemption argument based on a

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federal statute preempting state laws with respect to the transportation of property, 49

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U.S.C. 14501(c)(1). The Pelkey Court concluded that this provision did not preempt a

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state law authorizing the sale of abandoned cars (many of which had previously been

transported by tow truck) because that law regulates no towing services, no carriage

of property. Instead, it trains on custodians of stored vehicles seeking to sell them.

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Pelkey, 133 S. Ct. at 1775. Similarly, the Identity Theft Laws focus on one action,

which might be incidental tobut ultimately is not the subject ofthe allegedly

preempting federal law.

Even more recently, the Supreme Court rejected a preemption argument based on

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the potential for state laws to impact transactions within an exclusively federal field.

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Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015). At issue in Oneok was the federal

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Natural Gas Act, which regulates wholesale transactions in natural gas while leaving

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regulation of retail markets to the States. Id. at 1594. The Court recognized that state

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antitrust lawswhich like the Identity Theft Laws say nothing about a federally-

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occupied fieldcould nevertheless impact transactions reserved to the federal

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government.

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The Court upheld the state law by looking at its stated target to

determin[e] whether that law is pre-empted. Id. at 1599. Because the law spoke only

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in terms of anti-competitive conduct within the States traditional police power, the law
satisfied the constitutional test.
The Identity Theft Laws focus on theft rather than alien employment brings this
case within the ambit of Oneok. It also distinguishes both the statute in Arizona (S.B.

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1070) and the state law in South Carolina, both of which spoke exclusively in terms of

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alien registration and lacked any application to citizens. See Arizona, 132 U.S. at 2501;

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South Carolina, 720 F.3d at 522 (summarizing statute requiring aliens to carry an alien

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registration card and punishing possession of false documents for purpose of satisfying

that requirement).

Note that the statute at issue in South Carolina was not the States identity theft

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provision, which closely tracks Arizonas Identity Theft Laws and remains good law.

S.C. Code Ann. 16-13-510(C) (criminalizing the use of anothers information for the

purpose of obtaining employment). Elsewhere, state courts have likewise reviewed

other state identity theft laws and found them constitutional. See Hernandez v. State,

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639 S.E. 2d 473 (Ga. 2007) (holding that Georgias employment-specific identity theft

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statute, which mirrors Arizonas, is not preempted); see also, e.g., State v. Lopez-

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Navarrete, 340 P.3d 1235 (Kan. App. 2014).

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2. The Clearest Indication of Congressional Intent Expressly

Preserves State Identity Theft Laws.
Subsequent congressional action on the specific topic of identity theft confirms
that IRCA does not embody an intention to preempt state laws in this field. 18 U.S.C.

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1028; Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

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143-44 (2000) (later-enacted statutes control our construction of an earlier statute

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where the scope of the earlier statute is broad but the subsequent statutes more

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specifically address the topic at hand). Further clarifying that this canon of statutory

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construction applies to the current case, Congress took the additional step of amending

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IRCA to incorporate the federal identity theft statute, see 8 U.S.C. 1324a(b)(5), which

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leaves no doubt that the later-enacted law is the best indication of congressional intent.

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Congress has spoken only once on the topic of identity theft, and that statutes

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text and history evince an intent to preserve state laws. Section 1028 forbids using a

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means of identification of another person

commission of a felony under any applicable State or local law.

in order to violate federal law or in

18 U.S.C.

1028(a)(7) (emphasis added). The federal statutes incorporation of existing state law

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is powerful evidence against preemption.

See generally Casino Ventures v. Stewart,

183 F.3d 307, 310-12 (4th Cir. 1999) (rejecting preemption and holding that, by

incorporating state law into federal gambling law, Congress delegat[ed] to the states

significant authority to shape applicable federal law).

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Legislative history as well as subsequent implementation by the federal agency

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charged with enforcing Section 1028 confirm its anti-preemptive design.

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enacted the provision on the premise that [f]ederal legislation alone cannot eradicate

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Congress

identity theft. S. Rep. No. 105-274, at 9 (1998). As a result, [t]he Committee strongly

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encourage[d] State and local governments . . . to complement the Federal role in this area

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with appropriate preventive and enforcement measures.

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broadened the reach of Section 1028 in response to a significant escalation in identity

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Id.

In 2004, Congress

theft complaints nationwide, specifically including employment-related identity theft.

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(AZSOF 13); H.R. Rep. No. 108-528, at 4 (2004). The Federal Trade Commission,

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which maintains a database of identity theft complaints, has testified before Congress

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that states have enacted their own identity theft laws and that FTC officials refer

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customers to other state and local authorities because local law enforcement is best

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suited to bring the perpetrator to justice. (AZSOF 14) These referrals include cases

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of employment-related identity theft.

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implementing federal agency thus acknowledge what Plaintiffs cannot rebut: in its most

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(AZSOF 15.)

Both Congress and the

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recent and most specific pronouncement on the topic of identity theft, Congress intended

to leave state laws in place.

Congressional awareness of state identity theft laws is significant because [t]he

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case for federal preemption is particularly weak where Congress has indicated its

awareness of the operation of state law in a field of federal interest, and has nonetheless

decided to stand by both concepts and to tolerate whatever tension there [is] between

them. Wyeth, 555 U.S. at 576 (alteration original).

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

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theft statute, but rather to complement state laws. (AZSOF 16); S. Rep. 105-274 at 9

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(1998). Courts have found conflicts when the federal scheme is comprehensive and

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exclusive . . . but not when, as here, the federal scheme is cooperative. Chinatown

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Neighborhood Assn v. Harris, 794 F.3d 1136, 1143 (9th Cir. 2015). Likewise, Arizona

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noted that a prior decision upholding a California statute that imposed civil penalties for

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the employment of unauthorized aliens, De Canas v. Bica, 424 U.S. 351 (1976), was

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correctly decided because, at the time, there was no comprehensive federal program

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regulating the employment of unauthorized aliens. Arizona, 132 S. Ct. at 2503; see also

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Keams, 39 F.3d at 226 (Congress could have avoided diversity [in state laws] by

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express preemption, had it wished to do so, yet it did not.). Congresss decision to

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complement rather than supplant state laws via Section 1028 not only prevents Plaintiffs

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from carrying their burden but affirmatively demonstrates that Congress wanted identity
theft and forgery statutes to survive.
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Unlike the statutes in Arizona and South Carolina that required an alien

registration document or alien registration card and thus unsurprisingly fell within the

Hines field of alien registration, the Identity Theft Laws target only the taking of

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anothers identity. This field is not nearly as crowded with federal regulation, and with

good reason. It is a traditional state police power, Puente, 821 F.3d at 1104, and

Congress has demonstrated no clear and manifest preemptive intent analogous to the

field of alien registration.

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C. The Arizona and Federal Statutes Conflict Only with Respect to

Prosecution Using IRCAs Form I-9 Documents.
Although the federal government has left traditional police powers like forgery

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and identity theft to the States, it has created its own system for the separate task of

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verifying employees eligibility to work in the United States. Nothing about the Identity

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Theft Laws directly interfere[s] with the operation of the federal program, Whiting,

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563 U.S. at 604, or stands as an obstacle to the accomplishment and execution of the

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full purposes and objectives of Congress, Arizona, 132 S. Ct. at 2505 (quoting Hines,
312 U.S. at 67).
IRCAs operation is straightforward. It requires an employer to verify that its
employees have authorization to work in the United States using standardized

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identification information. 8 U.S.C. 1324a(b). Employees submit this information via

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Form I-9. See 8 C.F.R. 274a.2. Unsurprisingly, IRCA does not permit fraud against

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its verification system. 8 U.S.C. 1324c; 18 U.S.C. 1546(b). IRCA also prohibits use

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of the Form I-9 for any purpose other than enforcing IRCA and four enumerated federal

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statutes.

8 U.S.C. 1324a(b)(5); see also id. 1324a(d)(2)(F) (imposing a similar

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limitation on [t]he system as a whole). None of these provisions creates a conflict

with the Identity Theft Laws.

First, Plaintiffs assert that the Identity Theft Laws create a conflict in technique

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with federal laws that punish employers for hiring unauthorized workers. (SAC 77-

88.) The federal statutes, however, concern conduct wholly apart from identity theft.

Unlike Arizona, in which the State added a criminal sanction for the precise conduct

already regulated by the federal government, see 132 S. Ct. at 2501-02, this case

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concerns conduct that is unregulated by the federal government, except through 18

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U.S.C. 1028, and, as explained above, that statute embodies a congressional intent to

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complement existing state identity theft laws. There cannot be a conflict in penalties or

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enforcement strategies when the federal and state laws target different conduct. See

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Chinatown, 794 F.3d at 1142-43 (rejecting conflict in technique argument because

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federal statutes countenance state-level participation); Trandes Corp. v. Guy F.

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Atkinson Co., 996 F.2d 655, 659-60 (4th Cir. 1993) (same where state-law cause of

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action includes elements beyond those in federal offense, meaning that they regulate

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conduct qualitatively different from each other).

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Second, in the absence of a real conflict, Plaintiffs attempt to create a conflict

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through state legislative intent. (SAC 58-75, 94.) The Ninth Circuit put that novel

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theory to rest: Arizonas legislative history tells us nothing about whether Congress

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intended to preempt state statutes like the identity theft laws. Puente, 821 F.3d at 110506 (emphasis added). Because the purpose of Congress is the ultimate touchstone in

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every pre-emption case, Medtronic, 518 U.S. at 485, state legislative intent is irrelevant

to the issue of preemption. 2

The only application of the Identity Theft Laws or Arizonas forgery statute that

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would run afoul of IRCA is one that used Form I-9 to prove one or more elements of

the crime. 8 U.S.C. 1324a(b)(5). This hypothetical situation, which none of the

Plaintiffs has standing to challenge, is not a matter of conflict preemption at all. Rather,

IRCAs prohibition is express. If a prosecutor were to violate it, the defendant could

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move to exclude the evidence or overturn his conviction. This is precisely what other

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courts have done, while rejecting the notion that IRCA preempts state forgery or identity

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theft laws in any context other than Form I-9 and the accompanying verification process.

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State v. Ochoa-Lara, 362 P.3d 606, 610-11 (Kan. App. 2015) (identity theft); State v.

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Reynua, 807 N.W.2d 473 (Minn. App. 2011) (forgery), revd in irrelevant part by
Minnesota v. Reynua, 2012 WL 3023328 (Minn. 2012).

17
18

Unless a prosecutor violates the express terms of 8 U.S.C. 1324a(b)(5) and uses
Form I-9 to prove that a defendant committed a state crime, there is no conflict with

19
20

federal law. A contrary rule would allow unauthorized aliens to elude a wide range of

21

state laws on grounds that those provisions, like the Identity Theft Laws, somehow

22

conflict with the federal governments decision not to enforce statutes criminalizing

23

illegal entry and employment in the United States.

But there is no evidence that

24
25

Congress intended such sprawling preemptioncertainly no evidence satisfying the

26
2

27
28

Congress has occasionally enacted statutes that make state legislative intent relevant.
See, e.g., English v. Gen. Elec. Co., 496 U.S. 72, 84 (1990); Cal. Tow Truck Assn v. City
& Cnty. of San Francisco, 693 F.3d 847, 859 (9th Cir. 2012). IRCA does not contain
any such provision.
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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 17 of 30

high threshold for conflict preemption of a traditional police power. Gade v. Natl

Solid Waste Mgmt. Assn, 505 U.S. 88, 110-11 (1992) (Kennedy, J., concurring).

3
4
5
6

V.

THE IDENTITY THEFT LAWS DO NOT VIOLATE THE EQUAL

PROTECTION CLAUSE.

After voluntarily dismissing their as-applied claims (Doc. 139), Plaintiffs are left
with their claim that the Identity Theft Laws constitute impermissible discrimination

7
8

against noncitizens on the basis of alienage. (SAC 223). Because the statutes are

neutral with respect to alienage and serve the States rational interest in preventing a

10

crime, this theory cannot succeed. Moreover, Plaintiffs fixation on the comments of

11

three Arizona legislators does not meet the Supreme Courts requirements for an equal

12
13
14
15
16

protection claim. As a result, any factual dispute over those legislators motives is
immaterial, and Defendants are entitled to judgement as a matter of law.
The first step in determining whether a law violates the Equal Protection Clause
is to identify the classification that it draws. Coal. for Econ. Equity v. Wilson, 122 F.3d

17
18

692, 702 (9th Cir. 1997). The classification will help the Court determine whether

19

members of a certain group [are] being treated differently from other persons based on

20

membership in that group. United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir.

21

1995). Second, if it is demonstrated that a cognizable class is treated differently, the

22
23

court must analyze under the appropriate level of scrutiny whether the distinction made

24

between the groups is justified. Id. (citing Plyer v. Doe, 457 U.S. 202, 217-18 (1982)).

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26

A. The Identity Theft Laws Are Neutral with Respect to Alienage and
Immigration Status and Therefore Face Rational Basis Scrutiny.

27

As this Court and the Ninth Circuit have already noted, the identity theft laws are

28

textually neutralthat is, they apply to unauthorized aliens, authorized aliens, and U.S.
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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 18 of 30

citizens alike. Puente, 821 F.3d at 1105. The only classification that the Identity Theft

Laws draw is between individuals who steal another persons identity and those who do

not.

4
5

Classifications based on alienagei.e., between citizens on the one hand and

aliens on the otherare subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365,

371-72 (1971). A decade after Graham, in its most recent pronouncement on the topic,

the Supreme Court refused to apply strict scrutiny to a States classifications among

9
10

aliens. Plyler v. Doe, 457 U.S. 202 (1982). At the heart of its holding, the Court

11

declared [w]e reject the claim that illegal aliens are a suspect class and noted that

12

no prior case had held to the contrary. Id. at 219 n.19. Other courts have followed suit.

13

LeClerc v. Webb, 419 F.3d 405, 415-17 (5th Cir. 2005) (applying rational basis review to

14
15

a rule prohibiting aliens temporarily admitted to the United States from sitting for the

16

States bar examination); League of United Latin American Citizens (LULAC) v.

17

Bredesen, 500 F.3d 523, 532-33 (6th Cir. 2007) (finding that lawful temporary aliens

18

were not a suspect class and applying rational basis review). The application of rational

19
20

basis scrutiny, with its inherent deference to the elected branches of government, reflects

21

the reality of regulating a heterogeneous population of aliens with a wide-ranging

22

variety of ties to this country. Mathews, 426 U.S. at 78-79.

23

Here, the classification is even more deserving of rational basis review because it

24
25

does not depend on immigration status at all. The Identity Theft Laws do not distinguish

26

between citizens and aliens or even between citizens/authorized aliens and unauthorized

27

aliens. The only possible classification is between persons who have committed identity

28

theft and those who have not. Even if misunderstood to distinguish between groups of
18

Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 19 of 30

aliens (ignoring the laws applicability to citizens), the classification would be like the

requirement in Massachusetts that aliens seeking certain forms of public assistance must

first reside in the Commonwealth for six months.

Doe v. Commr of Transitional

4
5

Assistance, 773 N.E.2d 404, 408 (Mass. 2002). Predictably, the court reasoned that the

standard of review in these circumstances depends on the nature of the classification,

and concluded that rational basis must apply because the operative classification for

equal protection purposes . . . is not alienage, but residency. Id. at 414. So, too, in the

9
10
11

present case, the operative classification is not alienage, but the commission of identity
theft.

12
13

Another way courts have described essentially the same inquiry is whether the
plaintiffs have identified the correct control group relative to which they have been

14
15

treated differently. In Rosenbaum v. City & County of San Francisco, 484 F.3d 1142,

16

1153 (9th Cir. 2007), the Ninth Circuit rejected a sidewalk evangelists argument that he

17

was the victim of discriminatory prosecution for noise violations because the proffered

18

control group included speakers who had obtained permits, while the plaintiff had not.

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20

A fitting control group would have been other applicants for permits at similar times and

21

locations. Id. In the same way, the control group for testing whether the Identity Theft

22

Laws discriminate against unauthorized aliens would be other individualscitizens and

23

authorized alienswho commit identity theft for the purpose of obtaining or continuing

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25

employment. Since the laws treat them identically, this inquiry confirms that certain

26

behavior, not immigration status, is the operative classification under the Identity Theft

27

Laws.

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 20 of 30

Underscoring the fact that the Identity Theft Laws do not isolate unauthorized

aliens is the insight that the contested provisions do not concern everyone in the

population of unauthorized aliens, or even everyone in the subset of that population

4
5

seeking to work in violation of federal law. First, many unauthorized aliens do not work

and have no intention of doing so. Second, even among those seeking employment,

Puentes own Executive Director recognizes that some unauthorized aliens work in

Arizona without using stolen identification. (AZSOF 10.) Those individuals are not in

9
10
11
12
13

any danger of prosecution under the Identity Theft Laws. That fact proves once again
that the operative classification is not immigration status but forbidden conduct.
Finally, because the regulated conduct is a crime (identity theft) committed in
furtherance of a second crime (working in violation of federal law), this case is

14
15

distinguishable from a host of precedent in which plaintiffs sought access to some

16

benefit that was otherwise legal. In Loving v. Virginia, 388 U.S. 1 (1967), for example,

17

the plaintiff sought to engage in the otherwise lawful act of marrying. By contrast,

18

unauthorized aliens are forbidden from working in the United States. See 8 U.S.C.

19
20

1324a. In arguing that the Identity Theft Laws are unconstitutional because they make

21

it more difficult to seek unlawful employment, Plaintiffs ask this Court to extend legal

22

protection to a discrete group for the sole purpose of allowing them to violate other laws

23

with greater ease. Dignifying this request with heightened scrutiny would demean the

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25

purpose for which the Equal Protection Clause was created.

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28

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 21 of 30

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2
3

B. The Identity Theft Laws Serve the States Legitimate Interest in

Protecting Against a Harmful Crime.
Classifications based on non-suspect characteristics cannot run afoul of the

Equal Protection Clause if there is a rational relationship between the disparity of

treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 320

(1993).

Critically, the legislature that creates these categories need not actually

7
8

articulate at any time the purpose or rationale supporting its classification. Id. (quoting

Nordlinger v. Hahn, 505 U.S. 1, 15 (1992)). Instead, when rational basis scrutiny

10

applies, it is sufficient that there is any reasonably conceivable state of facts that could

11

provide a rational basis for the classification. Id. (quoting Beach Commcs v. FCC,

12
13

508 U.S. 307, 313 (1993)).

14

Little imagination is required to identify a conceivable state of facts to justify

15

the Identity Theft Laws. The County Defendants chronicle the many ways in which

16

identity theft harms its victims. (Doc --, Defendant MCAO and MCSO Motion for

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18

Summary Judgment.) From unexpected tax debts to denied public assistance based on

19

income earned by someone else, employment-driven identity theft inflicts serious harms

20

on its victims. Consistent with this insight, courts around the country have recognized

21

employment-related identity theft as a crime of moral turpitude and relied on that offense

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23

to deport aliens who engage in it. Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281 -

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1282 (9th Cir. 2014) (identity theft conviction); Espino-Castillo v. Holder, 770 F.3d 861

25

(9th Cir. 2014) (forgery conviction); see also RodriguezHeredia v. Holder, 639 F.3d

26

1264, 1269 (10th Cir. 2011); United States v. Mejia-Barba, 327 F.3d 678, 681-82 (8th

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28

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 22 of 30

Cir. 2003). These deportations would not make sense if punishing identity theft or

forgery was not at least a legitimate interest of the States involved.

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4

C. Plaintiffs Proffered Proof of Discriminatory Purpose Is Legally

Insufficient to Void a Rational and Duly-Enacted State Law.

In an effort to overcome the indisputable neutrality of the Identity Theft Laws and

their (at least) rational connection to a legitimate state interest, Plaintiffs allege that the

7
8

statutes were enacted with a purpose of discriminating against unauthorized aliens. But

the burden of proof for this allegation is extremely high, and the evidence produced by

10

Plaintiffs is insufficientas an evidentiary matter and as a matter of lawto defeat

11

summary judgment.

12
13

At worst, Plaintiffs have alleged that this is a mixed motives case, in which one

14

or more legislators might have acted partially in pursuit of an improper motive. To

15

establish a violation of the fourteenth amendment in the face of mixed motives, plaintiffs

16

must prove by a preponderance of the evidence that racial discrimination was a

17
18

substantial or motivating factor in the adoption of [the law]. Hunter v. Underwood, 471

19

U.S. 222, 225 (1985); Old Person v. Cooney, 230 F.3d 1113, 1130-31 (9th Cir. 2000)

20

(holding that Hunter does not shift the burden to defendants based on inflammatory

21

comments by lawmakers). This is a serious burden, consistent with the seriousness of

22
23

imputing evil purposes to a States legislature and governor. Plaintiffs must prove that

24

the discriminatory purpose was pervasive in the legislature, not just that one or two

25

legislators may have voted for the laws (in part) for a discriminatory reason. Golden

26

State Transit Corp. v. City of Los Angeles, 686 F.2d 758, 761 (9th Cir. 1982) (Even

27
28

assuming that the members of the council were motivated at least in part by an

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 23 of 30

impermissible purpose, that classification still survives judicial scrutiny.). Although

courts will sometimes risk the possibility of misreading Congress purpose in order to

interpret an ambiguous statute, a different rule applies here:

It is entirely a different matter when we are asked to void a statute that is,
under well-settled criteria, constitutional on its face, on the basis of what
fewer than a handful of Congressmen said about it. What motivates one
legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high
for us to eschew guesswork.

United States v. O'Brien, 391 U.S. 367, 383384 (1968) (footnote omitted). The Ninth

10

Circuit has embraced this rule, refusing to consider evidence of illicit legislative

5
6
7

11

motive based on city councilmembers comments surrounding enactment of a neutral

12
13
14
15
16

law. RUI One Corp. v. Berkeley, 371 F.3d 1137, 1146 & n.7 (9th Cir. 2004) (citing
Golden State and OBrien); cf id. at 1158-60 (Bybee, J., dissenting).
Even if courts were willing to consider snippets of legislative history to recast a
neutral statute as poisoned by legislative intent, the evidence Plaintiffs have submitted is

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18

nowhere near the quantum of proof required. Plaintiffs deposed three legislators, and all

19

three testified that the purpose of the Identity Theft Laws was to combat the crime of

20

identity theft, not to discriminate against anyone.

21

(AZSOF 6.)

In the area of

documentary evidence, Plaintiffs are similarly bankrupt. The few documents they cite

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23

refer generally to the Legal Arizona Workers Act (LAWA), a multi-part bill, of which

24

the Identity Theft Laws were a minor part. (SAC 38-76) Plaintiffs do not offer any

25

evidence showing that the three legislators statements with respect to discouraging

26

unauthorized aliens employment referred to the Identity Theft Laws rather than

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28

LAWAs more consequential E-Verify and employer-sanction provisions. See, e.g., Cal.

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 24 of 30

Tow Truck, 693 F.3d at 863-65; Castaneda-Gonzales v. I.N.S., 564 F.2d 417, 424 (D.C.

Cir. 1977) (explaining that the general rule that statements by individual legislators

should generally be given little weight when searching for the intent of the entire

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5
6
7
8

legislative body . . . applies with added force where, as here, the statement relied on was
made during debate of a different statutory provision).
For the same reasons, Plaintiffs also lack evidence that improper motives drove
Governor Napolitano to sign the statues into law. See Wisc. Educ. Assn Council v.

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10

Walker, 705 F.3d 640, 652 (7th Cir. 2013) (legislators singular comment . . . reveals

11

little of the intent of the legislature as a whole when it enacted Act 10 or the governor

12

when he introduced it. (emphasis added; citing OBrein)). Without the governors

13

signature, the Identity Theft Laws would not have become law, yet Plaintiffs cannot

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15

prove that Governor Napolitano acted improperly. This again shows that any dispute

16

over legislative purpose is not material and therefore cannot forestall summary

17

judgement for Defendants. Fed. R. Civ. P. 56(a).

18

Even if Plaintiffs were able to establish that discrimination was a substantial or

19
20

motivating factor in the adoption of the Identity Theft Laws, they still cannot prevail if

21

Defendants prove by a preponderance of the evidence that the same decision would

22

have resulted had the impermissible purpose not been considered. Hunter 471 U.S. at

23

225. Because identity theft is a real problem and had taken a particularly damaging hold

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25

in Arizona, it is easy to establish that lawmakers would have reached the same

26

decision on the Identity Theft Laws in the (accurate) absence of discriminatory motives.

27

One of the few pieces of LAWA legislative history that relates to the Identity Theft Laws

28

comes from Rep. Pearce. He explained the reason for supporting these provisions in
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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 25 of 30

terms focusing on the harm that identity theft causes to its victims, regardless of who the

perpetrator is:

I can show you the reports from George Vorhas from Harvard University
and others that show the amount of damage that is done by the identity theft
and what goes on when you use false social security numbers, false
identity, tax fraud and all the other crime that are committed in there so
there is a lot involved in identity theft. Did you know Arizona is number
one in the nation in identify theft as it is many other crimes. . . . I would
hate to see us lessen those crimes when the seriousness that they have on
our community and families when identities are stolen and misused.

(AZSOF 11.) Similarly, the legislative debate concerning imposition of class 3 felony

10

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

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5
6
7

11

of the people of Arizona, and justice for victimstraditional police power motivations

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13
14
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16

for enacting these laws. (AZSOF 12.) This general focus makes sense because both the
perpetrators and victims of identity theft come from every segment of the population.
On the question of discriminatory intent, the present case is like Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). In that seminal case,

17
18

the Court considered a state law providing special benefits to veterans, a group that was

19

overwhelmingly comprised of males.

20

challenge based on sex discrimination, the Court explained that this is not a law that can

21

In evaluating an Equal Protection Clause

plausibly be explained only as a gender-based classification. Id. at 275. The reasons

22
23

for this conclusion included the fact that both men and women were veterans, even if the

24

ratio vastly favored men. Id. So, too, with criminal laws that punish employment-

25

related identity theft: individuals holding every immigration status are subject to

26

punishment for violations. It matters not that most of the affected persons belong to one

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28

group or another. Id. at 278-79 (acknowledging that most veterans were male). To

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 26 of 30

reach the level of a constitutional violation, the disparate effects must be the statutes

core purpose. Thus Plaintiffs here would need to prove that the law can plausibly be

explained only as an anti-immigrant measure. Id. at 275 (emphasis added). Given that

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5

Feeney concerned a suspect classification triggering intermediate scrutiny, the

conclusion that the current law is constitutional follows a fortiori given the more

deferential standard of review.

In attempting to impute a discriminatory purpose to the people who created

9
10

Arizonas Identity Theft Laws, Plaintiffs fail at every turn. First, they have nowhere

11

near the evidencetestimonial or documentaryto suggest anything approaching true

12

legislative intent as explained in OBrien. Second, what little evidence they have refers

13

to a larger bill, of which the Identity Theft Laws were unremarkable compared to the

14
15

licensing provisions and mandatory use of E-Verify.

Third, even if Plaintiffs had

16

evidence that improper motives were a substantial factor, the preponderance of

17

legislative history and the deposition testimony of the three legislators at issue rebuts that

18

conclusion and shows that the same decision would have resulted had the impermissible

19
20

purpose not been considered. Hunter 471 U.S. at 225. As in Feeney, the Identity Theft

21

Laws can plausibly be explained as serving a different and totally legitimate purpose.

22

442 U.S. at 275. Because Plaintiffs have created no genuine dispute as to any material

23

fact, Defendants are entitled to judgment as a matter of law.

24
25
26

D. Plaintiffs Have Failed to Show a Genuine Dispute over Disparate Impact,

but Any Such Dispute Would Be Immaterial.
Plaintiffs have not clearly articulated any evidence that the Identity Theft Laws

27
28

impose a disparate impact on a protected class.

26

Neither the evidence produced in

Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 27 of 30

discovery, nor the testimony of Plaintiffs expert, Dr. Earl, fairly describe any disparate

impact.

Plaintiffs expert testified that her findings are limited to the absolute number of

4
5

unauthorized alien offenders in her set of employment-related identity theft/forgery cases

between 2005 and 2015. (AZSOF 17.) Dr. Earl did not analyze and did not venture an

opinion as to why these absolute numbers would increase, decrease, or stabilize over

time. (AZSOF 18.) Even where her report uses the term disproportionate, it means

9
10

only that one value is numerically greater than another. (AZSOF 19.) Specifically,

11

disproportionate in her report does not imply that Defendants enforcement of the

12

challenged statute is disproportionate to the offender groups rate of offending.

13

(AZSOF 20.) Because Dr. Earl never addressed the question of disparate impact and did

14
15

not comment on whether the number of prosecutions within any population is

16

disproportionate to that groups rate of offending, her testimony leaves an evidentiary

17

vacuum.

18

Just as importantly, even if Dr. Earl provided enough evidence to spawn a

19
20

genuine dispute over disparate impact, that dispute would be immaterial because a

21

disparate-impact claim requires discriminatory intent, which does not exist here. Village

22

of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977).

23

Conversely, the foregoing discussion of discriminatory intent, see Part V.C supra,

24
25

is irrelevant in the absence of a showing of disparate impact. Palmer v. Thompson, 403

26

U.S. 217 (1971) ([N]o case in this Court has held that a legislative act may violate equal

27

protection solely because of the motivations of the men who voted for it.). Without an

28

injury in the form of disparate impact, Plaintiffs are missing an essential component of
27

Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 28 of 30

their case and, more fundamentally, lack standing to challenge a statute based on

legislative motives alone. NAACP v. Horne, 626 F. Appx 200 (9th Cir. 2015) (holding

that plaintiffs lack standing to challenge a statute when their only injury is stigmatizing

4
5

effect of legislation allegedly motivated by discrimination).

This Court should not reach the issue of disparate impact because it lies well

down the road of equal protection folly, but even then, Plaintiffs have failed to generate a

material dispute of fact that could allow a jury to rule in their favor.

9
10
11
12

VI.

CONCLUSION

Defendants are entitled to summary judgement because there is no genuine

dispute of material facts, and Defendants are entitled to judgment as a matter of law.

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16

RESPECTFULLY SUBMITTED this 1st day of July, 2016.

Mark Brnovich
Attorney General

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21

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

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 29 of 30

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I certify that I electronically transmitted the attached document to the Clerks Office
using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to
the CM/ECF registrants this 1st day of July, 2016.
Honorable David G. Campbell
United States District Court
401 West Washington Street, SPC 58
Phoenix, AZ 85003-2158

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Anne Lai
Sameer Ashar
University of California, Irvine School
of Law Immigrant Rights Clinic
401 East Peltason Drive, Suite 3500
Irvine, CA 92616-5479

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Cindy Pnuco, Esq.

Hadsell Stormer & Renick LLP
128 North Fair Oaks Avenue
Pasadena, CA 91103

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Daniel J. Pochoda
Joshua D. Bendor
ACLU Foundation of Arizona
3707 North 7th Street, Suite 235
Phoenix, AZ 85014
Sarah Anchors
Jose Carrillo
Quarles & Brady, LLP
2 North Central Avenue
Phoenix, AZ 85004-2391
Ray A. Ybarra Maldonado
Law Office of Ray A. Ybarra Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Douglas Irish
J. Kenneth Mangum
Ann Thompson Uglietta
Maricopa County Attorneys Office
Civil Services Division

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Case 2:14-cv-01356-DGC Document 510 Filed 07/01/16 Page 30 of 30

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222 North Central Avenue, Suite 1100

Phoenix, AZ 85004
Michele M. Iafrate
Kate C. Nelson
Iafrate & Assoc.
649 North 2nd Avenue
Phoenix, AZ 85003

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s/ Maureen Riordan

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5169151

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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 31