We are Am. v. Maricopa Cnty. Bd. of Supervisors
| Decision Date | 27 September 2013 |
| Docket Number | No. CIV 06-2816-PHX-RCB,CIV 06-2816-PHX-RCB |
| Parties | We Are America, et al., Plaintiffs, v. Maricopa County Board of Supervisors, et al. Defendants. |
| Court | U.S. District Court — District of Arizona |
In 2005, the Arizona State Legislature criminalized human smuggling. See Ariz.Rev.Stat. ("A.R.S.") § 13-2319. Thereafter, the Maricopa County Attorney's Office ("MCAO") interpreted that human smuggling statute, in combination with Arizona's conspiracy statutes, as giving it the prosecutorial discretion to charge and prosecute non-smuggling migrants for conspiring to transport themselves within Maricopa County. Accordingly, the Maricopa County Sheriff's Office ("MCSO") began arresting and detaining migrants for that crime. This lawsuit is a direct challenge to the foregoing, which the parties refer to, as will the court, as the Maricopa Migrant Conspiracy Policy (the "Policy").
Currently pending before the court are defendants' (Doc.119) and plaintiffs' (Doc. 121) competing motions for summary judgment pursuant to Fed.R.Civ.P. 56. The primary issue which these summary judgment motions raise is whether federal law preempts and renders invalid the Policy.1 The plaintiffs' second motion for class certification pursuant to Fed.R.Civ.P. 23 (Doc. 122)2 is also currently pending before the court.
An examination of the parties' statements of facts and controverting statements of facts, reveals that there is little complete agreement between them. Most of the parties' objections are not well-taken though; and they obfuscate rather than sharpen the factual record.
A court "may only consider admissible evidence in ruling on a motion for summary judgment." Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted). However, "'objections to evidence . . . [as] irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.'" Harris Technical Sales, Inc. v. Eagle Test Sys., Inc., 2008 WL 343260, at *3 (D.Ariz. Feb. 5, 2008) (quoting Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D.Cal.2006)). Many of the parties' objections are to relevancy. Such objections are "'redundant'" though because a court "'cannot rely on irrelevant facts[]'" in awarding summary judgment. Huynh v. J.P. Morgan Chase & Co., 2008 WL 2789532, at *4 (D.Ariz. July 17, 2008) (quoting Burch, 433 F.Supp.2d at 1119). "'A court can award summary judgment only when there is no genuine dispute of material fact.'" Id. (quoting Burch, 433 F.Supp.2d at 1119) (emphasis in original)).
Other objections are that the proffered evidence is argumentative or constitutes an improper legal conclusion. These types of objections are "superfluous" in this context, however, because such statements "'are not facts and likewise will not be considered on a motion for summary judgment.'" Id. (quoting Burch, 433 F.Supp.2d at 1119 (citation omitted)). Thus, insofar as the parties' objections are duplicative of the summary judgment standard, the court sees no need to expressly rule on each.
There are two objections which merit specific consideration, however. The defendants are objecting to the plaintiffs' second statement of fact which, in turn, is based upon a document entitled "[Criminal Justice-Sheriff-Human Smuggling Enforcement] Opinion No. 2005-002[,]" dated September 29, 2005. Pls.' Exh. 5 (Doc. 121-2) at 213-219.3 This unsigned document purports to be a letter from former Maricopa County Attorney Andrew P. Thomas to defendant Sheriff Joseph M. Arpaio.See id. Based upon this letter, the plaintiffs offer the following statement of "fact[:]" "On September 29, 2005, [the then] defendant County Attorney announced that his office would prosecute not only actual coyotes, but also non-smuggler migrants — 'people who are trying to enter into this country' and whom, in the legislature's view, actual smugglers 'exploit' - who agree to pay for their own transport on the theory that such migrants have conspired to violate § 13-2319." Plaintiffs' Statement of Facts in Support of Motion for Summary Judgment ( ) (Doc. 121-1) at 3:16-21 (citations omitted). The plaintiffs also rely upon the September 29, 2005, document as the source of the Policy. See id. at 3:24-25 ("This [opinion letter] initiated the . . . MMCP at issue[.]")
Objecting to this statement of fact, and the predicate document, the defendants assert that the latter lacks foundation because it is unsigned. The defendants further assert that that unsigned document cannot "serve as an admission by a party opponent[]" in the absence of any testimony by either its supposed author, non-party Thomas, or its alleged recipient, defendant Arpaio. Defendants' Response to Plaintiffs' Statement of Facts in Support of Plaintiffs' Motion for Summary Judgment and Controverting Statement of Facts ( ) (Doc. 129) at 3:13-14, ¶ 2.
Documentary evidence submitted on a summary judgment motion "must be authenticated and attached to a declaration wherein the declarant is the person through whom the exhibits could be admitted into evidence." Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (citation omitted); see also Orr v.Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (citations and footnote omitted) ("Authentication is a condition precedent to admissibility" and "unauthenticated documents cannot be considered in a motion for summary judgment.") The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." Orr, 285 F.3d at 773. This authentication requirement is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims[,]" Fed.R.Evid. 901(a), or if the document is self-authenticating pursuant to Fed.R.Evid. 902. The plaintiffs have shown neither. Therefore, the court will not consider the unsigned September 29, 2005, letter due to a lack of foundation.
For substantially similar reasons, the court also will not consider what purports to be "Minutes of the Committee on Judiciary re: H.B. 2539, Arizona House of Representatives, 47th Legislature, First Regular Session (February 10, 2005)." Pls.' SOF (Doc. 121-1) at 3:14-17. Attempting to show legislative intent, the plaintiffs recite from these Minutes several times. The Minutes themselves are not part of the record, however; nor have they been authenticated in any way.
Notwithstanding the parties' objections, at bottom, the undisputed facts pertaining to the pending summary judgment motions are straightforward and few. In 2005, Arizona criminalized human smuggling, making it a class 4 felony for a "person to intentionally engage in the smuggling of human beings for profit or commercial purpose." A.R.S. § 13-2319(A)-(C)(1)-(2) (Supp. 2010)4. The statutory definition of "[s]muggling of human beings" is "transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter, entered or remained in the United States in violation of law." A.R.S. § 13-2319(F)(3).
Significantly, the defendants do not dispute either the existence of the Policy or its implementation. Indeed, they expressly acknowledge that "[s]ince March of 2006, the [MCAO] has reserved the prosecutorial discretion under Arizona law to charge and prosecute persons for the state crime of conspiracy under A.R.S. § 13-1003 to violate Arizona's human smuggling statute, A.R.S. § 13-2319." Defendants' Motion for Summary Judgment ( ) (Doc. 119) at 1:27-2:2. Along those same lines, the defendants further acknowledge that the MCSO "also enforces § 13-1003 as applied to § 13-2319 by arresting individuals for, and detaining them under, the criminal charge of conspiring to violate Arizona's human smuggling statute when probable cause exists to do so." Id. at 2:5-7. Defendants also point out that A.R.S. § 13-1006(B) recognizes that a person maycommit conspiracy to commit an offense, even if that person cannot be convicted of the offense itself.5
By June 2011, in accordance with the Policy, MCSO "deputies had arrested at least 1,800 non-smugglers for conspiring to violate § 13-2319." Pls.' SOF (Doc. 121-1) at 3, ¶ 3 (citations omitted); see also Defs.' Resp. SOF (Doc. 129) at 3, ¶ 3 (admit). And, "[a]s of March 2010, the [MCAO] had prosecuted 1,357 non-smugglers for conspiracy to violate § 13-2319." Id. at 4, ¶ 4 (citation omitted); see also Defs.' Resp. SOF (Doc. 129) at 4, ¶ 4 (admit). At his August 23, 2012, deposition, Maricopa County Sheriff Arpaio confirmed that the MCSO is continuing to arrest "co-conspirators" and that the MCAO continues to prosecute them. Pls.' Exh. 1 (Doc. 121-2) at 36:5-10.
The First Amended Complaint ("FAC") alleges four separate causes of action. Significantly however, believing they are "clearly entitled" to summary judgment "on their first claim for relief (preemption)[,]" the plaintiffs are "reced[ing] from their remaining [three] claims[.]" Plaintiffs' Responsive Memorandum in Opposition to Defendants' Motion for Summary Judgment ( ) (Doc. 126) at 16:27-28, n. 5. This obviates the need to consider much of the defendants' summaryjudgment motion, which addressed all four claims. What remains, as mentioned at the outset, is the vigorously disputed issue of federal preemption. The parties each argue their entitlement to summary judgment on this issue. The defendants argue that the Policy is not preempted by federal immigration law, whereas the plaintiffs argue that it is preempted. Additionally, the plaintiffs are seeking certification of two alternative classes, as more fully discussed herein.
"Bringing a class certification motion...
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