The state heads back to court this coming week over SB 1070, this time to defend a provision aimed at day laborers.
The fight is over a provision in the 2010 law which makes it a crime for someone to enter a car stopped on the street to go to work elsewhere. That same law also criminalizes driver who stop to pick up laborers. Proponents have never denied the language, part of the much broader bill aimed at illegal immigrants, is designed to attack the practice of day laborers to hang around home improvement stores and solicit work. But state Rep. John Kavanagh said it's not discriminatory because it addresses a legitimate need to keep traffic flowing. And he said existing laws are insufficient because they deal only with those who intentionally block traffic.
"These ordinances were designed for people who, either because they're crazy or they want to annoy people or they're demonstrating, actually go out and stop the flow of traffic," Kavanagh said. "These people with day labor do not intend to stop the flow of traffic. They merely are looking to engage in barter for work but, in so doing, they do, in fact, stop the flow of traffic."
Cecillia Wang of the American Civil Liberties Union said the flaw in that argument is that the law is crafted to attack only one type of problem created by people entering the street and impeding traffic.
"If they wanted to address a large number of people running out into the street, they should have written a law that says you can't run out into the street," Wang argues. "Instead what they did was they wrote a law that says you can't run out into the street in order to signal your availability to work."
And Wang said the discriminatory intent of the law is highlighted by what is NOT criminalized.
"Under this kind of law, if someone wants to run out in the street holding up a billboard that says 'Vote for Romney,' that's not a crime," she said. "But if they run out in the street holding up a sign that says 'Looking for work,' then that is."
The legal burden is on the state following a ruling last March by Judge Susan Bolton voiding the law. She agreed with challengers that the real purpose behind the provision is not traffic control but to curb day labor. And Bolton said being a day laborer, absent more, is not a crime. The state's attorneys could have a hard time convincing the appellate judges Bolton was wrong. That's because she based her injunction on an earlier 9th Circuit ruling which invalidated similar existing ordinances in both Phoenix and Redondo Beach, Calif.