Puente's Answering Brief in Ninth Circuit Preliminary Injunction Appeal

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 1 of 83
No. 15-15211
No. 15-15213
No. 15-15215
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUENTE ARIZONA, ET AL.,
Plaintiffs-Appellees,
v.
JOSEPH M. ARPAIO, ET AL.,
Defendant-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Case No. 2:14-CV-01356
The Honorable David G. Campbell
United States District Court Judge
APPELLEES CONSOLIDATED
ANSWERING BRIEF
Anne Lai
University of California, Irvine
School of Law Immigrant Rights
Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
alai@law.uci.edu
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
127 N. Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
Telephone: (866) 457-2590
cpanuco@hadsellstormer.com
jps@hadsellstormer.com
dstormer@hadsellstormer.com
Attorneys for Appellees

PUENTE ARIZONA, ET AL.
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
dpochoda@acluaz.org
Jessica Myers Vosburgh

National Day Laborer
Organizing Network
2104 Chapel Hill Rd.
Hoover, AL 35216
Telephone: (215) 317-1481
jvosburgh@ndlon.org
Jessica Karp Bansal

National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214
jbansal@ndlon.org
Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra
Maldonado, PLC
2637 North 16th St., Unit 1
Phoenix, AZ 85006
Telephone: (602) 910-4040
rybarra@stanfordalumni.org

PUENTE ARIZONA, ET AL.
CORPORATE DISCLOSURE STATEMENT

Appellee Puente Arizona, a non-profit organization, states that it
has no parent corporations and there is no publicly held corporation
that owns 10% or more of its stock.
No other Appellee is a corporation.
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES ....................................................................... v
JURISDICTIONAL STATEMENT ............................................................ 1
STATEMENT OF THE ISSUES ................................................................ 1
STATEMENT OF THE CASE ................................................................... 2
A.
Factual Background ................................................................. 2
B.
The District Court's Order ....................................................... 9
STANDARD OF REVIEW ........................................................................ 11

SUMMARY OF ARGUMENT .................................................................. 12
ARGUMENT ............................................................................................. 13
I.
The District Court Rightly Concluded that Appellees are

Likely to Succeed on the Merits of Their Supremacy
Clause Claim ................................................................................... 13
A.
The Clear Purpose and Effect of Arizona's Worker Identity

Provisions Is to Impose Criminal Penalties on
Undocumented Workers Who Seek or Engage in
Unauthorized Employment ................................................... 15
1.
Courts deciding preemption claims examine the

purpose and effect of state laws ................................... 15
2.
The record demonstrates only one primary purpose

and effect of the worker identity provisions ............... 19
ii
B.
C.
D.
II.
Arizona's Worker Identity Provisions are Field

Preempted ............................................................................... 23
1.
Congress has fully occupied the field of fraud in

response to the federal employment verification
system ............................................................................ 24
2.
Appellants fail to acknowledge the federal scheme at

issue or its Congressional intent, instead considering
statutory provisions out of context ............................... 30
Arizona's Worker Identity Provisions are

Conflict Preempted ................................................................. 32
1.
The Arizona provisions disrupt the congressional

calibration of force by imposing additional and
different penalties on unauthorized workers .............. 33
2.
Arizona's worker identity provisions intrude on the

federal government's exclusive prosecutorial power
and permit prosecutions unaligned with federal
priorities ........................................................................ 36
The Worker Identity Provisions are Unconstitutional

in All Their Applications ........................................................ 40
The District Court Had Ample Grounds to Find that the

Remaining Equitable Factors Weigh in Favor of a Preliminary
Injunction ........................................................................................ 42
A.
Appellees Will Suffer Irreparable Harm ............................... 42

1.
The District Court correctly found that members

of Puente were at risk of unconstitutional
prosecutions ................................................................... 43
2.
The passage of time does not undermine the finding

of irreparable harm to Puente ...................................... 46
iii
B.
III.
The District Court Correctly Found That the Equities

Tipped Sharply in Favor of Appellees and That An
Injunction is in the Public Interest ....................................... 47
The District Court's Finding Regarding the County's Liability

Should Not Be Disturbed ................................................................ 50
A.
The Issue of the County's Monell Liability Is Not

Appealable at This Stage ....................................................... 50
B.
All Courts to Consider the Question Have Found the

County Liable for Sheriff Arpaio's Law Enforcement
Decisions ................................................................................. 53
1.
Sheriff Arpaio has final policymaking authority......... 54
2.
Sheriff Arpaio acts for the County in the area of law

enforcement ................................................................... 56
CONCLUSION .......................................................................................... 59
CERTIFICATE OF COMPLIANCE ......................................................... 61
STATEMENT OF RELATED CASES ..................................................... 62
iv
T ABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Arc of California v. Douglas

757 F.3d 975 (9th Cir. 2014) ............................................... 12, 46, 47
Arizona v. United States
132 S.Ct. 2492 (2012) .............................................................. passim
Arizona v. Valle Del Sol, Inc.
134 S.Ct. 1876 (2014) ................................................................ 23, 24
Arizona Dream Act Coalition v. Brewer
757 F.3d 1053 (9th Cir. 2014) ....................................... 16, 18, 39, 47
Brewster v. Shasta County
275 F.3d 803 (9th Cir. 2001) ......................................... 54, 56, 58, 59
Buckman Co. v. Plaintiffs Legal Committee
531 U.S. 341 (2001) ....................................................... 14, 37, 39, 40
California v. ARC America Corporation
490 U.S. 93 (1989) ........................................................................... 36
California Tow Truck Association v. City & County of San Francisco
693 F.3d 847 (9th Cir. 2012) ............................................... 17, 18, 19
Chamber of Commerce v. Whiting
131 S.Ct. 1968 (2011) ...................................................... 3, 18, 39, 40
Chamber of Commerce of U.S. v. Brown
554 U.S. 60 (2008) ........................................................................... 16
City of Los Angeles v. Lyons
461 U.S. 95 (1983) ............................................................... 43, 44, 45
v
County of Los Angeles, California v. Goldstein

134 S. Ct. 906 (2014) ....................................................................... 56
Cousins v. Lockyer
568 F.3d 1063 (9th Cir. 2009) ......................................................... 12
Crosby v. National Foreign Trade Council
530 U.S. 363 (2000) ....................................................... 13, 33, 34, 36
Department of Housing & Urban Development v. Rucker
535 U.S. 125 (2002) ......................................................................... 47
Doran v. Salem Inn, Inc.
422 U.S. 922 (1975) ......................................................................... 45
Dougherty v. City of Covina
654 F.3d 892 (9th Cir. 2011) ........................................................... 12
Elrod v. Burns
427 U.S. 347 (1976) ......................................................................... 43
English v. General Electric Co.
496 U.S. 72 (1990) ............................................................... 17, 18, 19
Entergy Nuclear Vermont Yankee, LLC v. Shumlin
733 F.3d 393 (2d Cir. 2013) ................................................. 17, 18, 19
Gade v. National Solid Waste Management Association
505 U.S. 88 (1992) ......................................................... 15, 16, 18, 21
Geier v. America Honda Motor Co.
529 U.S. 861 (2000) ....................................................... 14, 15, 31, 39
Georgia Latino Alliance for Human Rights v. Governor of Georgia
691 F.3d 1250 (11th Cir. 2012) ....................................................... 26
Goldstein v. City of Long Beach
715 F.3d 750 (9th Cir. 2013) ..................................................... 56, 59
vi
Hines v. Davidowitz
312 U.S. 52 (1941) ....................................................................... 7, 24
Hoffman Plastic Compounds, Inc. v. N.L.R.B.
535 U.S. 137 (2002) ............................................................... 4, 24, 28
I.N.S. v. National Center for Immigrants Rights, Inc.
502 U.S. 183 (1991) ......................................................................... 37
Kenna v. U.S. District Court for the Central District of California
435 F.3d 1011 (9th Cir. 2006) ......................................................... 49
Kleenwell Biohazard Waste & General Ecology Consultants v. Nelson
48 F.3d 391 (9th Cir. 1995) ............................................................. 45
Kirshner v. Uniden Corporation of America
842 F.2d 1074 (9th Cir. 1988) ......................................................... 58
LaDuke v. Nelson
762 F.2d 1318 (9th Cir. 1985) ......................................................... 45
Lee v. City of Los Angeles
250 F.3d 668 (9th Cir. 2001) ..................................................... 49, 58
Lopez v. Candaele
630 F.3d 775 (9th Cir. 2010) ........................................................... 44
Lopez v. Pacific Maritime Association
657 F.3d 762, 766-67 (9th Cir. 2011) ............................................. 45
Lopez-Valenzuela v. Arpaio
770 F.3d 772 (9th Cir. 2014) ............................................... 40, 41, 48
Loyal Tire & Automobile Center, Inc. v. Town of Woodbury
445 F.3d 136 (2d Cir. 2006) ............................................................. 18
Lozano v. City of Hazleton
724 F.3d 297 (3d Cir. 2013) ................................................. 26, 27, 41
vii
Lydo Enterprises, Inc. v. City of Las Vegas

745 F.2d 1211 (9th Cir. 1984) ......................................................... 46
Lytle v. Carl
382 F.3d 978 (9th Cir. 2004) ........................................................... 55
McMillian v. Monroe County, Alabama
520 U.S. 781 (1997) ............................................................. 54, 56, 57
Medtronic, Inc. v. Lohr
518 U.S. 470 (1996) ......................................................................... 31
Meredith v. Oregon
321 F.3d 807 (9th Cir. 2003) ............................................... 50, 51, 56
Monell v. Department of Social Services of New York
436 U.S. 658 (1978) ................................................................. passim
Morales v. Trans World Airlines, Inc.
504 U.S. 374 (1992) ......................................................................... 43
Morris v. Slappy
461 U.S. 1 (1983) ............................................................................. 49
Motor Coach Employees v. Lockridge
403 U.S. 274 (1971) ......................................................................... 33
National Center for Immigrants Rights, Inc. v. I.N.S.
913 F.2d 1350 (9th Cir.1990) .......................................................... 37
National Wildlife Federation v. National Marine Fisheries Service
422 F.3d 782 (9th Cir. 2005) ........................................................... 11
New York State Conference of Blue Cross & Blue Shield Plans v.
Travelers Insurance Co.
514 U.S. 645 (1995) ......................................................................... 15
viii
Oklevueha Native America Church of Hawaii, Inc. v. Holder

676 F.3d 829 (9th Cir. 2012) ............................................... 10, 43, 45
Oneok, Inc. v. Learjet, Inc.
135 S.Ct. 1591 (2015) ...................................................................... 16
Ortega Melendres v. Arpaio
598 F.Supp.2d 1025 (D. Ariz. 2009) ................................................ 53
Ortega Melendres v. Arpaio
695 F.3d 990 (9th Cir. 2012) ............................................... 11, 43, 47
Perez v. Campbell
402 U.S. 637 (1971) ......................................................................... 18
Poulos v. Caesars World
379 F.3d 654 (9th Cir. 2004) ............................................... 50, 51, 52
Rice v. Santa Fe Elevator Corp.
331 U.S. 218 (1947) ......................................................................... 15
Rodriguez v. Robbins
715 F.3d 1127 (9th Cir. 2013) ......................................................... 47
Rucker v. Davis
237 F.3d 1113 (9th Cir. 2001) ......................................................... 47
San Jose Silicon Valley Chamber of Commerce Political Action
Committee v. City of San Jose
546 F.3d 1087 (9th Cir. 2008) ........................................................ 45
Southern Pacific Transport Co. v. Public Utility Commission of State of
Oregon
9 F.3d 807 (9th Cir. 1993) ............................................................... 17
Southwest Voter Registration Education Project v. Shelley
344 F.3d 914 (9th Cir. 2003) ........................................................... 11
ix
Swint v. Chambers County Commission

514 U.S. 35 (1995) ............................................................... 50, 51, 52
United States v. Arizona
641 F.3d 339 (9th Cir. 2011) ................................................. 4, 15, 28
United States v. Hinkson
585 F.3d 1247 (2009) ....................................................................... 42
United States v. Maricopa County
915 F.Supp.2d 1073 (D. Ariz. 2012) ................................................ 53
United States v. Peninsula Communications, Inc.
287 F.3d 832 (9th Cir. 2002) ........................................................... 11
United States v. Salerno
481 U.S. 739 (1987) ......................................................................... 40
United States v. South Carolina
720 F.3d 518 (4th Cir. 2013) .............................................. 27, 28, 36
United States v. South Carolina
840 F.Supp.2d 898 (D.S.C. 2011) .................................................... 36
Valle del Sol Inc. v. Whiting
732 F.3d 1006 (9th Cir. 2013) ................................................. passim
We Are America v. Maricopa County Board of Supervisors
297 F.R.D. 373 (D. Ariz. 2013) .................................................. 27, 42
Weiner v. San Diego County
210 F.3d 1025 (9th Cir. 2000) ......................................................... 54
Williams v. Zbaraz
442 U.S. 1309 (1979) ....................................................................... 47
Wisc. Department of Industrial, Labor & Human Relations v. Gould Inc.
475 U.S. 282 (1986) ................................................................... 23, 35
x
Younger v. Harris
401 U.S. 37 (1971) ..................................................................... 45, 51
S TATE CASES
Flanders v. Maricopa County

54 P.3d 837 (Ariz. App. 2002) ......................................................... 53
Hernandez v. Lynch
167 P.3d 1264 (Ariz. Ct. App. 2007) ............................................... 48
Hernandez v. State
639 S.E.2d 473 (Ga. 2007) ............................................................... 23
Hounshell v. White
199 P.3d 636 (Ariz. App. 2008) ....................................................... 58
State v. Lopez-Navarrete
340 P.3d 1235 (Kan. App. 2014) ..................................................... 23
State v. Prentiss
163 Ariz. 81 (1989) ........................................................................... 42
DOCKETED CASES
Guillory v. Greenlee County

No. CV 05-352 TUC DCB
2006 WL 2816600 (D. Ariz. Sept. 28, 2006) ................................... 53
Lovejoy v. Arpaio
No. CV 09-1912-PHX-NVW
2010 WL 466010 (D. Ariz. Feb. 10, 2010) ....................................... 53
Mora v. Arpaio
No. CV-09-1719-PHX-DGC
2011 WL 1562443 (D. Ariz. Apr. 25, 2011) ..................................... 53
xi
F EDERAL STATUTES
8 U.S.C.
1101(a)(15) ...................................................................................... 6
1182(a)(6) ...................................................................................... 26
1227(a)(3)(C) ................................................................................. 26
1324a ..................................................................................... passim
18 U.S.C.
1028 ............................................................................. 24, 25, 30, 35
1546 ................................................................................... 25, 28, 31
22 U.S.C.
7101(b) ........................................................................................... 35
28 U.S.C.
1292(a)(1) .................................................................................. 1, 50
Federal Rules of Appellate Procedure
28-2.6 ................................................................................................ 62
32(a)(7) ............................................................................................. 61
Federal Rules of Civil Procedure
12(b) .................................................................................................. 10
Public Law 99-603
103 ................................................................................................. 25
101 ................................................................................................. 25
111 ................................................................................................... 6
STATE STATUTES
Arizona Constitution
Article XII, Section 3 ....................................................................... 57
Arizona Revised Statutes
11-219 ............................................................................................ 58
11-251 ............................................................................................ 57
11-253 ............................................................................................ 58
xii
11-261 ............................................................................................ 56
11-401 ............................................................................................ 57
11-402 ............................................................................................ 57
11-409 ............................................................................................ 57
11-441 ............................................................................................ 55
13-2002 .......................................................................................... 48
13-2008 .............................................................................. 3, 42, 48
13-2009 ............................................................................ 2, 3, 42, 48
13-2929 .......................................................................................... 27
38-341 ............................................................................................ 57
R EGULATIONS
8 C.F.R.
214.14 .............................................................................................. 6
274a.2 ........................................................................................ 4, 23
28 C.F.R.
68.1 ................................................................................................ 26
MISCELLANEOUS
132 Congressional Record, S16879-01 (1986) ..................................... 5, 25
H.R. Rep., 99-682 (1986) ............................................................................. 6
xiii
JURISDICTIONAL STATEMENT
Appellees agree that the Court has jurisdiction over Appellants
appeal of the District Courts preliminary injunction pursuant to 28
U.S.C. 1292(a)(1). However, Appellant Maricopa Countys attempted
appeal of the District Courts ruling regarding municipal liability is not
properly before the Court, as it does not meet the criteria for pendent
appellate jurisdiction and is not a collateral order.
STATEMENT OF THE ISSUES
1.
Whether the District Court correctly found that the
challenged provisions of Arizona law, enacted with a clear intent and

practical effect of punishing undocumented immigrants1 who use false
identity information to work, constituted a facially invalid state
intrusion into an area of excusive federal control because Congress has
fully occupied the field of regulating fraud in response to the federal
employment verification system;
2.
Whether the District Court correctly found that the
challenged provisions pose an obstacle to federal lawand are therefore

conflict preemptedbecause they disrupt the congressional calibration
of force and interfere with the careful balance struck by Congress with
respect to the employment of undocumented immigrants;
3.
Whether the District Court abused its discretion in granting
a preliminary injunction where Appellees made a clear showing of

Appellees intend the terms undocumented immigrant and
undocumented worker to refer to individuals who do not have federal
authorization to work in the United States. They will use these terms
except when quoting materials that use a different term.
1
irreparable harm and the balance of equities and public interest favored
a preliminary injunction; and
4.
Whether this Court should disturb the District Courts
ruling regarding Maricopa Countys liability for Sheriff Arpaios law

enforcement decisions where the County has not established appellate
jurisdiction over the issue and every court to have ruled has concluded
the County is liable.
STATEMENT OF THE CASE
A.
Factual Background
This case was brought by Appellee Puente Arizona (Puente) and

several individuals to challenge two Arizona laws which sought to
criminally punish individuals who do not have federal authorization to
work in the United States for conduct related to securing employment.
Enacted in response to nativist sentiment in Arizona, the measures
formed part of a broader platform by former state legislator Russell
Pearce and other supporters to make life so difficult for immigrants who
had come from Mexico and other parts of Latin America that they would
self deport.
Specifically, H.B. 2779, also called the Legal Arizona Workers
Act, (LAWA), passed in 2007, expanded the grounds of aggravated
identity theft to include using the information of another person,
whether a real or fictitious person, with the intent to obtain
employment. Supplemental Excerpts of Record (SER) 1-SER-72 (H.B.
2779 1, amending A.R.S. 13-2009(A)(3)). H.B. 2745, passed in 2008,
made changes to LAWA, including expanding the non-aggravated
2
identity theft statute to include use of identifying information with the

intent to obtain or continue employment. 1-SER-84 (H.B. 2745 1,
amending A.R.S. 13-2008(A)).2 The added provisions in A.R.S. 132009 (A)(3) and 13-2008(A) (collectively, the worker identity
provisions3) were intended to address employment of undocumented
immigrants and, in fact, the titles and official descriptions of the
measures explicitly reflected this purpose. See, e.g., 1-SER-107 (Senate
Amended Fact Sheet for H.B. 2779); 1-SER-118 (House Summary for
H.B. 2745).
Legislators supporting passage of the worker identity provisions
were not shy to express their view that Arizona should punish
undocumented workers harshly because doing otherwise would be
viewed as a weakening of our . . . opposition to illegal immigration. 1SER-187 (statement of co-sponsor Sen. Robert Burns). Primary sponsor
and then Representative Pearce explained during the debate that state
action was necessary because the Feds have not done their job to quell
Other provisions of H.B. 2779 and H.B. 2745 required employers to
check employees employment authorization status and imposed
sanctions in the form of license suspensions on employers that
knowingly employed unauthorized immigrants. The sanctions on
employers were found permissible under an express savings clause in 8
U.S.C. 1324a. Chamber of Commerce v. Whiting, 131 S.Ct. 1968, 1973
(2011).
3 Appellees use this term rather than Identity Theft Laws to
distinguish them from the remainder of A.R.S. 13-2008 and 13-2009,
which address identity theft unrelated to employment and are not at
issue in this case. See Appellees Addendum (reproducing A.R.S. 132008, 13-2009 and highlighting portions affected by the District Courts
order).
2
what he described as a national epidemic of unlawful immigration

that threatened the destruction of our country, and so [Arizona]
need[s] to step up to the plate. 1-SER-149-51 (statement of Rep.
Pearce). And Senator Chuck Gray explained that he supported LAWA
because it advances the cause of protecting our citizens against
something that the Federal Government wont do. 1-SER-160
(statement of Sen. Gray).
In their bid to show disapproval of federal policy in this area,
Arizona legislators created state crimes in an area that had already
been comprehensively regulated by Congress. More than 20 years
earlier, Congress had made combating the employment of illegal aliens
central to the policy of immigration law. Hoffman Plastic Compounds,
Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002) (citation omitted). Through
the Immigration Reform and Control Act of 1986 (IRCA),4 Congress
created a complex, United States v. Arizona, 641 F.3d 339, 358 (9th
Cir. 2011), revd in part, 132 S. Ct. 2492, comprehensive, Arizona, 132
S.Ct. at 2504, and careful[ly] balance[d], id. at 2505, scheme to
regulate the employment of undocumented immigrants at the national
level. This scheme includes a detailed procedure for verifying
prospective employees eligibility for employment under federal law, see
8 U.S.C. 1324a(b); 8 C.F.R. 274a.2, as well as a graduated series of
civil and criminal sanctions for employers who knowingly employ
undocumented immigrants, see 8 U.S.C. 1324a(e)-(f).
Pub. L. 99-603, codified at 8 U.S.C. 1324a et seq.

4
Congress anticipated that some individuals might respond to the

new employment verification system by relying on false information or
documents. See, e.g., The Knowing Employment of Illegal Immigrants:
Hearing before the Subcomm. on Immigration and Refugee Policy of the
S. Comm. on the Judiciary, 97th Cong. 53, 14 (1981), available at
http://babel.hathitrust.org/cgi/pt?id=pst.000047041790;view=1up;seq=7
(statement of Doris Meissner, Acting Commr, Immigration and
Nationality Service) (The Department of Justice recognizes the
likelihood that with employer sanctions there will be a significant
increase in the use of fraudulent documentation by illegal aliens[.]).
Accordingly, Congress provided federal authorities with a variety of
tools to address this concern. See 132 Cong. Rec. S16879-01 (1986)
(statement of co-sponsor Sen. Simpson) (legislators paid close attention
to the issue of document fraud and provide[d] for this reality by
creating civil and criminal penalties). The federal tools are versatile and
comprehensive. See infra at 25-26.
In implementing the federal scheme governing the employment of
undocumented immigrants, the Department of Homeland Securitys
(DHS) Immigration and Customs Enforcement (ICE) agency has
utilized the built-in versatility to rely heavily on civil, rather than
criminal, measures. See Andorra Bruno, Cong. Research Serv., RL
40002 Immigration-Related Worksite Enforcement: Performance
Measures 6-7 (2013) (CRS Report) (between 2003 and 2012, ICE
brought 20,631 administrative charges as compared to 5,131 criminal
charges). ICE also prioritizes the criminal prosecution of employers
who knowingly hire undocumented workers . . . or facilitate document
5
or benefit fraud. Id. at 3 (citation omitted) (emphasis added). This is

consistent with Congressional intent not to make undocumented
workers more vulnerable than necessary or undermine or diminish in
any way labor protections in existing law, or limit the powers of federal
or state [authorities] . . . to remedy unfair practices committed against
undocumented employees for exercising their rights. H.R. Rep. No. 99
682, pt. 1, at 58 (1986). Indeed, as part of IRCA, Congress authorized
funds for the Department of Labor (DOL)s Wage and Hour Division to
strengthen enforcement of employment standards laws for
undocumented workers. Pub. L. 99-603, 111(d) (noting that doing so
would help remove the economic incentive for employers to exploit and
use such aliens). Congress has also made available visas for workers
who fall victim to labor trafficking and other crimes to encourage them
to cooperate with law enforcement. See generally 8 U.S.C.
1101(a)(15)(T), 1101(a)(15)(U); 8 C.F.R. 214.14.
The federal government has taken numerous steps to ensure that
enforcement of laws regulating employment of undocumented
immigrants does not undermine the federal interest in protecting labor
rights.5 At the international level, the United States has entered into
For example, because enforcement against workers might impede
[the DOLs] ability to gain the trust of illegal aliens who may be the
victims of labor violations and potential witnesses against employers,
CRS Report at 10, DOL and DHS have entered into a Memorandum of
Understanding to avoid conflicts in worksite enforcement activities and
insulate enforcement from inappropriate manipulation by other
parties, Revised Memorandum of Understanding between the
Departments of Homeland Security and Labor Concerning Enforcement
Activities at Worksites, Dec. 7, 2011, 1. ICE has also issued guidance
5
treaties to protect labor rights, including those that extend to

undocumented immigrant workers. For example, in 1994, the United
States, Mexico and Canada signed the North American Agreement on
Labor Cooperation (NAALC) to [p]rovid[e] migrant workers in a
Partys territory with the same legal protection as the Partys nationals
in respect of working conditions. NAALC, Annex 1 11, available at
http://new.naalc.org/index.cfm?page=219. The ability of the United
States to protect the rights of immigrant workers here has important
consequences for the reciprocal treatment of American citizens
abroad. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); see also
Hines v. Davidowitz, 312 U.S. 52, 64 (1941).
In contrast, Arizonas worker identity provisions embody no such
balance. Predictably, shortly after H.B. 2779 went into effect in 2008,
the Maricopa County Sheriffs Office (MCSO), working with the
Maricopa County Attorneys Office (MCAO), initiated a campaign of
worksite enforcement operations to crack down on unauthorized
immigration. See 1-SER-196 (MCSO News Release describing
crackdown and noting that in 55 worksite identity theft operations,
100% of [] suspects . . . were illegal aliens). MCSO created a
specialized unit called the Criminal Employment Squad focused on
investigating undocumented immigrants who use false documents to
work. 1-SER-202-06 (testimony of Deputy Hector Martinez). And the
MCAO prosecuted the cases through a special unit that handled
stating it will exercise prosecutorial discretion not to deport individuals
who are engaged in protected activity to vindicate labor rights. Excerpts
of Record (ER) 2-ER-247-49.
7
immigration crimes rather than its general Fraud and Identity Theft
Bureau. 1-SER-212-15 (testimony of Vicki Kratovil); 1-SER-221 (MCAO
Special Report). In six years, MCSO conducted over seventy worksite
operations, arresting nearly 790 workers on charges of identity theft
and/or forgery. 1-SER-226. In 2014, after the courts had enjoined other
aspects of his offices program on immigration, Sheriff Arpaio told a
crowd of supporters, I still enforce the illegal immigration laws by
virtue of going into businesses and locking up the employees with fake
ID. Statement at Minnesota Tea Party Special Event, March 6, 2014,
at minute 51:14, available at https://www.youtube.com/watch?v=LFdXxrl5qw. In six years, only five employers were charged by Maricopa
County law enforcement with violations related to employing
undocumented workers. 1-SER-228.
The worksite operations spread fear through the immigrant
community, discouraged undocumented workers from reporting labor
rights violations, and separated breadwinners from their families. See
14-ER-3186-88, Garcia Decl. 13, 16, 18-19, 23-24; see also 14-ER3201-03, Cervantes Decl. 15-19, 24-29 (describing harms experienced
as a result of being arrested); 14-ER- 3197-98, Romero Decl. 14-15,
18, 22-26) (same). In response, Puente staff and volunteers began
providing direct assistance to members affected by the worksite
operations and conducting advocacy to try to stop them. 14-ER-3187-89,
Garcia Decl. 17, 28-31. In the meantime, the Supreme Court and
other federal courts issued several landmark rulings on the application
of the Supremacy Clause to state immigration measures. See, e.g., infra
Part I.B.1 (discussing precedents). In 2014, with workers continuing to
8
be arrested and Appellants showing no sign of discontinuing

enforcement, Appellees secured legal counsel to file this case, see
District Court Clerks Record (hereafter CR) 1, and, shortly after
filing, moved for the instant preliminary injunction, CR 30.
B.
The District Courts Order
In its order granting a preliminary injunction, the District Court

found that Appellees had demonstrated a likelihood of success on their
facial Supremacy Clause challenge to the worker identity provisions.6
First, the District Court found that Congress had exclusively occupied
the field of unauthorized-alien fraud in seeking employment. 1-ER-2829. Though Appellants argued that Arizonas worker identity provisions
were facially neutral as to immigration status, the court, applying
preemption precedents, carefully [c]onsider[ed] the text, purpose, and
effect of the challenged measures and concluded that they were
directed at imposing criminal penalties on unauthorized aliens who
seek or engage in unauthorized employment in the State of Arizona. 1ER-27. Appellants did not provide any legislative history that shows a
contrary intent. Id. Thus, Arizona had regulated in a prohibited field.
Id.
The District Court also found that the provisions were likely
conflict preempted. As the court explained, Arizona employed different
Appellees also contend that the worker identity provisions violate the
Equal Protection Clause of the Fourteenth Amendment and that the
Maricopa County Appellants enforcement practices are preempted as
applied. CR 191 220, 225. But Appellees did not move for a
preliminary injunction on those grounds, so those claims are not part of
this appeal. See, e.g., 1-ER-43.
6
sanctions than federal law and posed a conflict in technique disruptive

to the federal system. 1-ER-30-31 (citation omitted). Further, Arizona
divest[ed] federal authorities of the exclusive power to prosecute
fraud, thus interfering with the careful balance Congress struck in
IRCA. 1-ER-31 (citations omitted).
The District Court went on to find that Appellees had met the
remaining requirements for a preliminary injunction. Appellants made
a clear showing that Puente members faced a credible threat of
prosecution under Oklevueha Native Am. Church of Haw., Inc. v.
Holder, 676 F.3d 829 (9th Cir.2012), and thus irreparable harm. 1-ER15-18, 35. In contrast, the court explained, Arizona was not without
other tools to combat identity theft. 1-ER-35-36.
The District Court also denied several motions to dismiss filed by
Appellants in the same order, 1-ER-36-46, including a Rule 12(b)(6)
motion made by the County arguing that it was not a proper defendant.
CR 55. In its denial, the District Court explained that the County was a
proper defendant because the County is liable under Monell v. Dept of
Soc. Servs. of New York, 436 U.S. 658 (1978), for the official law
enforcement decisions and policies of Sheriff Arpaio. 1-ER-44-46.7 The
County moved for reconsideration of the ruling on its liability, CR 141,
and the District Court denied the motion, 1-ER-1-6.
Because the County is liable for the decisions of Sheriff Arpaio, the
District Court found it was not necessary to address whether the
County is also liable for the decisions of Appellant Montgomery under
Monell. 1-ER-46.
7
10
Appellants subsequently filed the instant interlocutory appeal of

the District Courts preliminary injunction order. The County also filed
a separate brief arguing that it is not a proper defendant in the case.
This answering brief responds to Appellants Opening Brief (Dkt. 28)
(AOB), Appellant Maricopa Countys Opening Brief on Monell
Liability Issue and Joinder in Co-Appellants Opening Brief on Other
Issues (Dkt. 26-1) (MCOB), and the Amicus Brief Supporting
Appellants and Supporting Reversal of the Preliminary Injunction (Dkt.
32-1) (BOA).
STANDARD OF REVIEW
The standard of review for the issuance of a preliminary
injunction is limited and deferential. Natl Wildlife Fedn v. Natl
Marine Fisheries Serv., 422 F.3d 782, 793 (9th Cir. 2005) (quoting
Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918
(9th Cir. 2003) (en banc)). A faithful application of this standard means
that an appellate court should not disturb a district courts ruling
unless it abused its discretion or based its decision on an erroneous
legal standard or on clearly erroneous findings of fact. United States v.
Peninsula Commcns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). In other
words, a ruling will not be reversed simply because the appellate court
would have arrived at a different result if it had applied the law to the
facts of the case. Ortega Melendres v. Arpaio, 695 F.3d 990, 999 (9th
Cir. 2012) (citation omitted).
A plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
11
irreparable harm , , , that the balance of equities tips in his favor, and
that an injunction is in the public interest. Arc of Cal. v. Douglas, 757
F.3d 975, 990 (9th Cir. 2014) (citation omitted). The Ninth Circuit
evaluate[s] these factors via a sliding scale approach. Id. (citation
omitted).
When properly raised, this Court reviews a denial of a motion to
dismiss de novo. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir.
2011). All allegations of material fact [in the complaint] are taken as
true and construed in the light most favorable to the nonmoving party.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation
omitted).
SUMMARY OF ARGUMENT
The worker identity provisions are the latest aspect of Arizonas
effort to make its own immigration policy to have been struck down by
the courts. Appellants fill up many pages of briefing, but they fail to
point to a single piece of record evidence to contradict the District
Courts finding that the worker identity provisions were enacted in
order to punish fraud in the federal work authorization verification
system. Rather, they attempt to rewrite history by insisting that the
measures were about identity theft generally. This Court should decline
Appellants invitation to ignore the provisions plain intent and
practical effect. Appellants position not only flies in the face of binding
precedent, but would allow any stateunder the guise of punishing
identity theftto create its own scheme for punishing undocumented
workers who provide false information in response to the employment
12
verification system created by Congress in IRCA. That cannot be the

law.
As the District Court observed, the Arizona Legislature clearly
entered a preempted field when it enacted H.B. 2779 1 and H.B. 2745
1. In addition, the worker identity provisions in fact interfere with
federal law and are therefore conflict preempted. Moreover, Puentes
members faced a concrete, credible threat of prosecution and the
balance of equities and public interest favored an injunction. In so
finding, the District Court applied controlling precedents of this Court
and of the Supreme Courtprecedents that Appellants fail to
adequately address in their brief.
In addition, the County improperly tries to use the interlocutory
appeal of the preliminary injunction as a springboard to challenge the
District Courts ruling on its liability. The County has not made any
showing that this issue meets the stringent standards for appellate
jurisdiction. If this Court reaches the question at all, it should find the
Countys arguments meritless and affirm the District Courts order.
ARGUMENT
I.
The District Court Rightly Concluded that Appellees are

Likely to Succeed on the Merits of Their Supremacy Clause
Claim
It is [a] fundamental principle of the Constitution [] that
Congress has the power to preempt state law. Crosby v. Natl Foreign
Trade Council, 530 U.S. 363, 372 (2000). In the absence of an express
preemption provision, state law is preempted when the scope of a
statute indicates that Congress intended federal law to occupy a field
13
exclusively, or when state law is in actual conflict with federal law.

Geier v. Am. Honda Motor Co., 529 U.S. 861, 899 (2000) (citations
omitted).
Appellants appear fixated on the notion that preemption is only
about express statements. They propose an unprecedented rule
lacking any support in case lawthat a court may only look to the
purpose of a state law in preemption analysis where Congress
specifically said to do so. Moreover, much of their argument turns on a
narrow understanding of the field occupied by Congresslimited to
the use of the Form I-9because they misunderstand Appellees claim
to be based only on the express language in 8 U.S.C. 1324a(b)(5).
Appellants vision of preemption law is mistaken. Courts have not
required Congress to speak explicitly when it is preempting state law.
Further, Appellants erroneously assume that a presumption
against preemption applies in this case. They claim that any action
defining and prosecuting crimes falls within the States historic police
powers and therefore triggers the presumption. AOB 18-20. But laws
are not entitled to a presumption simply because of the manner by
which a state chooses to regulate, e.g., through criminal law, tort law or
otherwise. Instead, courts look at what is being regulated to determine
if it is an inherently federal area. Buckman Co. v. Plaintiffs Legal
Comm., 531 U.S. 341, 347 (2001). Here, the fraud being regulated is a
creature of (and response to) the federal work authorization system. As
in Buckman, Arizona is not entitled to a presumption of preemption.
531 U.S. at 347 (declining to apply presumption, stating that [p]olicing
fraud against federal agencies is hardly a field which the States have
14
traditionally occupied[]) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)).8
In any case, as the District Court explained and as set forth below,
it does not matter if the presumption applies here, because Congress
made its intent to occupy the field clear and manifest. 1-ER-27.9
A.
The Clear Purpose and Effect of Arizonas Worker

Identity Provisions Is to Impose Criminal Penalties on
Undocumented Workers Who Seek or Engage in
Unauthorized Employment
1.
Courts deciding preemption claims examine the

purpose and effect of state laws
To determine if Arizona intruded into a prohibited field, the

District Court considered the text, purpose and effect of the
challenged provisions. 1-ER-27. In doing so, the court was following
well-established preemption law. See, e.g., N.Y. State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658
(1995) (examining purpose and effect of the state law in ERISA
preemption challenge); Chamber of Commerce of U.S. v. Brown, 554
Appellants suggestion that the Supreme Court applied a presumption
against preemption when evaluating the alien registration provision of
S.B. 1070 in Arizona, AOB 19, is incorrect. The Court discussed the
presumption in its prefatory remarks, not when analyzing the
registration provision. Arizona, 132 S.Ct. at 2501; cf Arizona, 641 F.3d
at 355 (presumption does not apply to provision).
9 Appellants point to Justice Stevens dissent in Geier, 529 U.S. 861 and
Justice Kennedys concurrence in Gade v. Natl Solid Waste Mgmt.
Assn, 505 U.S. 88 (1992) to suggest that implied conflict preemption is
subject to some heightened rule regarding the presumption. AOB 41-42.
These passages do no more than reiterate the rule that, to overcome it,
Congresss intent must be clear and the interference with federal
purposes actual (i.e., not hypothetical).
8
15
U.S. 60, 70 (2008) (holding California statute preempted where the

[state] legislative purpose is . . . the furtherance of a labor policy);
Gade, 505 U.S. at 105 (a state law that expressly declares a legislative
purpose to regulate in an area occupied by the federal government
would be clearly preempted).
Appellants make two flawed arguments in an attempt to divert
the Courts attention away from Arizona legislators purpose. First, they
argue that because it is the intent of Congress that is the touchstone of
preemption doctrine, state legislative purposeexcept for in a narrow
category of cases where Congress says otherwiseis irrelevant. AOB
49-50. Second, they suggest that it is a laws effects, not motives, that
determine whether there is a conflict with the federal scheme. Id. 50-51.
Appellants first theory finds no support in the case law. The goal
of looking at state legislative purpose is not to diminish Congressional
intent; it is to honor it. Honoring Congressional intent meansin all
casestaking reasonable steps to discern the true target of state
regulation. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-1600
(2015) (confirming importance of considering the target at which the
state law aims to determine if regulation is preempted and rejecting
the dissents contention, similar to Appellants here, that the Court
should focus only on what the State seeks to regulate . . . not why the
State seeks to regulate it) (emphasis in original). A state cannot
immunize a law from preemption through post hoc justifications or
obscuring its purpose in the text. See Ariz. Dream Act Coal. v. Brewer,
757 F.3d 1053, 1072 (9th Cir. 2014) (Christen, J., concurring) (even law
ostensibly addressing . . . drivers licenses[] may effect an
16
impermissible regulation of immigration); Entergy Nuclear Vermont

Yankee, LLC v. Shumlin, 733 F.3d 393, 420 (2d Cir. 2013) (striking
down state law where [a]fter being informed that regulation based on
radiological safety was preempted and impermissible, the committee
chair responded, Okay, lets find another word for safety.).
Naturally, the interest in discerning the true target of state
regulation is present whether or not Congress specifically made
preemption dependent on state legislative purpose. Even Cal. Tow
Truck Assn v. City & Cnty. Of San Francisco, 693 F.3d 847 (9th Cir.
2012), a case that Appellants cite in support of their theory, pertains to
a savings clause that does not explicitly mention state purpose. Id. at
857 (citing the state safety exception of the Federal Aviation
Administration Authorization Act, which states that the Act does not
restrict the safety regulatory authority of a State with respect to motor
vehicles). And English v. General Electric Co., 496 U.S. 72 (1990), the
other case cited by Appellants, reiterates that purpose and effect are
relevant in all cases. Id. at 84-85 (holding that even where a federal
statute does make explicit reference to the purpose of a state law, the
state law could still be preempted in the absence of such purpose if the
law had a direct and substantial effect on the preempted field).
Moreover, this Circuit has also endorsed examination of purpose in
implied preemption contexts. See, e.g., S. Pac. Transp. Co. v. Pub. Util.
Commn of State of Or., 9 F.3d 807, 811 (9th Cir. 1993) (in Locomotive
Boiler Inspection Act case, noting that the preempted field is defined
by reference to the purpose of the state law in question) (quoting
English, 496 U.S. at 84-85).
17
Appellants object to the District Courts examination of legislative

history because the worker identity provisions are unambiguous and
facially neutral as to immigration status. AOB 48-51 n. 10. This
confuses statutory construction with statutory purpose.10 In
determining whether a state law was genuinely responsive to safety
concerns, this Court has found it entirely appropriate to consider any
specific expressions of legislative intent in the statute itself as well as
the legislative history. Cal. Tow Truck, 693 F.3d at 859 (quoting Loyal
Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2d Cir.
2006) (Sotomayor, J.)); Entergy, 733 F.3d at 418 (court should indeed
look to the statutes legislative history to determine if it was passed
with an impermissible motive).
Of course, the practical effect of a state law is also relevant,
especially where there is reason to believe a legislature would mask its
true purpose. See Gade, 505 U.S. at 105-06 (restricting what courts can
consider would enable state legislatures to nullify nearly all unwanted
federal legislation by simply . . . articulating some state interest or
policyother than frustration of the federal objectivethat would be
tangentially furthered by the proposed state law) (quoting Perez, 402
U.S. at 651-652); see also Ariz. Dream Act Coalition, 757 F.3d at 1062
(examining practical result of state executive order); Cal. Tow Truck,
Though Appellants cite to Whiting, 131 S. Ct. at 1980, the Court there
declined to consider the legislative history of the federal statute, IRCA,
because it found it would be unhelpful to the question of statutory
construction.
10
18
693 F.3d at 860 (pretextually asserted motive will not save a law from
preemption); Entergy, 733 F.3d at 42021 (same).11
In sum, the purpose and effects analyses, taken together, allow
courts to distinguish between state laws that have some tangential but
acceptable effect on a field of federal regulation, on the one hand, and
state laws that improperly regulate in a prohibited field, on the other.
See English, 496 U.S. at 85. The District Court applied the analyses
precisely right in this case.
2.
The record demonstrates only one primary

purpose and effect of the worker identity
provisions
It is hard to imagine a more clear case of ostensibly neutral

measures having a prohibited purpose and effect than the instant one.
First, the titles and descriptions of H.B. 2779 and H.B. 2745 make
plain that the proposals were intended to address employment by
undocumented immigrants. See supra at 3. The District Court found
that the various provisions of the bills related almost entirely to
employment of unauthorized aliens. 1-ER-26.
Second, the unrefuted legislative history indicates a purpose to
regulate unauthorized aliens who seek employment. 1-ER-27. The
worker identity provisions were conceived as part of a broader strategy
on immigration advocated by then Representative Pearce called
attrition through enforcement. 1-SER-152; 1-SER-164-66 (e-mail from
Rep. Pearce identifying end[] [to] misuse of Social Security and IRS
Contrary to Appellants suggestion that the District Court ignored the
worker identity provisions effects, AOB 50-51, the court gave notable
consideration to their effect. See infra at 21 (citing 1-ER-27).
11
19
identification numbers, which illegal immigrants use to secure jobs as

part of strategy to Shrink the Illegal Population).12 The statements of
other Arizona legislators confirmed that they too envisioned the worker
identity provisions as a means to punish undocumented workers and
facilitate their deportation. 1-SER-190 (statement of Sen. Tom
OHalleran) (advocating that provisions be harsh enough to ensure
workers stay in jail and never be allowed to be citizens of the United
States again); see also at 3-4 (describing statements of Sen. Burns, Rep.
Pearce and Sen. Gray expressing dissatisfaction with federal policy on
illegal immigration). In signing H.B. 2779 into law, then Governor
Janet Napolitano wrote that because of federal inaction, Arizona had
no choice but to take strong action to discourage the further flow of
illegal immigration through our borders. Letter from Janet Napolitano
to Jim Weiers, Ariz. Gov. Mess., July 2, 2007 (H.B. 2779) (Westlaw).
Indeed, in the year prior to passage of H.B. 2779, Pearce had been
chief sponsor of a precursor bill, Arizona House Bill 2577 (H.B. 2577),
that proposed to revise the definition of the offense of forgery to include
falsely making or altering a written instrument that purports to be a
document that fulfills the requirements for establishing identity, or
eligibility to work in the United States pursuant to the federal
Immigration Reform and Control Act of 1986, and that is used to obtain
employment in this state by a person who is not authorized to work in
the United States. 1-SER-11 (H.B. 2577 6). The bill passed the
legislature but was vetoed by the Governor. Letter from Janet
Napolitano to Jim Weiers, June 6, 2006, available at
http://www.azleg.gov/govlettr/47leg/2R/HB2577.pdf. That the
Legislatures earlier attempt to criminalize fraudulent activity by
undocumented workers was explicitly linked to IRCA leaves no doubt as
to its true purpose in the years following H.B. 2577.
12
20
As the District Court found, the worker identity provisions would

have the most impact on unauthorized aliens. 1-ER-27. When
assessing the practical effect of a challenged law on a facial challenge, a
court is not limited to the self-serving, in-court representations by
Appellants about their current enforcement practices. The focus is on
what the target of the state law was, and the history of enforcement
practices can shed light on that when a pretextual or post-hoc motive is
asserted. Here, the District Court relied on a striking figure that 100%
of [] suspects arrested by the MCSO in 55 worksite operations to
enforce the challenged provisions were illegal aliens. Id. (citing MCSO
News Release).
Appellants state that individuals who use false personal
identifying information for employment may have reasons other than
the lack of immigration status to do so. AOB 47-48. That may be true,
but a law directed at a [prohibited field] is not saved from pre-emption
simply because the State can demonstrate some additional effect
outside [of the field]. Gade, 505 U.S. at 107. Undocumented workers
who lack proof of authorization to work must, as a practical matter, use
false identity information to pass the employment verification process.
See, e.g., 14-ER-3196 Romero Decl. 5; 14-ER-3200 Cervantes Decl. 6;
14-ER-3186-87 Garcia Decl. 14-15. Appellants have not identified
any other employment verification process as far-reaching as IRCA.
21
Thus, the regulation of identity fraud to obtain employment is,

effectively, a regulation of employment by undocumented immigrants.13
In an effort to obscure this practical reality, Appellants
astonishingly claim that their enforcement practices have been
neutral, AOB 9, and based on documents other than the Form I-9.
First, the question on this facial challenge to the worker identity
provisions is whether Arizona entered into the preempted field by
regulating fraud by undocumented immigrants in seeking employment,
not whether MCAO is currently violating a specific provision of IRCA by
using the Form I-9. That MCAO amended its policy to limit use of Form
I-9s six years after the provisions enactment and after Appellees filed
for a preliminary injunction in this case14 is of little significance
nothing in the worker identity provisions discourages them from relying
on the Form I-9. Second, to the extent MCAOs current practice has any
relevance to this appeal, Appellants fail to mention that, as of
September 2014, only two of over 30 cases MCAO had pending under
the challenged provisions allegedly involved U.S. citizens.15
Indeed, the worker identity provisions do not even require a person to
have usedor know that they usedthe information of a real person.
See, e.g., 14-ER-3202 Cervantes Decl. 21; 12-ER-2662 (Cervantes
sentencing minutes).
14 The change in policy took place on September 17, 2014. 2-ER-130,
19. This calls into serious question Appellants unsupported
representation, AOB 10, that they have filed 493 cases involving a
victim where they did not rely on a Form I-9. See also 12-ER-2646-2647
(MCAO indictment for Ms. Cervantes relying on I-9 Form); 12-ER2666-2667 (MCSO Supplemental Report of arrest of Ms. Cervantes).
15 By their own admission, Appellants have also continued to
improperly use documents workers submit to show work eligibility
13
22
Thus, the legislative history, terms, and practical effect of the

worker identity provisions make this a case in which no purpose could
credibly be ascribed to them other than trying to impact the
employment of undocumented workers. Wisc. Dept of Indus., Labor &
Human Relations v. Gould Inc., 475 U.S. 282, 287 (1986). This easily
distinguishes the case from the non-binding state court decisions cited
by Appellants, AOB 28 (citing Hernandez v. State, 639 S.E. 2d 473 (Ga.
2007) and State v. Lopez-Navarrete, 340 P.3d 1235 (Kan. App. 2014)),
which did not involve statutes specifying the use of identity information
for employment and did not deal with evidence indicating that state
laws were enacted with the purpose or primary effect of regulating
fraud in response to the federal employment verification system.
B.
Arizonas Worker Identity Provisions are Field

Preempted
Where Congress, acting within its proper authority, has

determined [a field] must be regulated by its exclusive governance,
states may not enter it in any respect, even with complementary or
auxiliary regulation. Arizona, 132 S.Ct at 2501-02. Field preemption
can be inferred . . . [from] a regulatory framework so pervasive . . . that
Congress left no room for the States to supplement it . . . . Valle del Sol
Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013) (quoting Arizona,
under IRCA other than the Form I-9, such as drivers licenses and
Social Security cards. 14-ER-3382; CR 74 at 14. See 8 U.S.C.
1324a(b)(5) (including information contained in or appended to [the I9] in use limitation); 8 C.F.R. 274a.2(b)(4) (explaining that copies or
images of documents used to verify an individuals identity or
employment eligibility are subject to the limitation).
23
132 S.Ct at 2501), cert. denied sub nom. Arizona v. Valle Del Sol, Inc.,
134 S. Ct. 1876 (2014). In other words, a field is preempted if federal
statutory directives provide a full set of standards . . . designed as a
harmonious whole. Arizona, 132 S.Ct. at 2502 (quoting Hines, 312
U.S. at 72).
After a full review of the federal statutory framework, the District
Court concluded that Congress had occupied the field of unauthorizedalien fraud in obtaining employment. 1-ER-29. Appellants do not
directly contest this finding. Instead, they argue, irrelevantly, that
Congress has not fully occupied the field of identity theft generally.
AOB 22-33. Appellants focus on the field of identity theft
misapprehends the District Courts analysis and the reason for its
reliance on statutes such as 18 U.S.C. 1028.
1.
Congress has fully occupied the field of fraud in

response to the federal employment verification
system
There are few areas where the federal interest is more dominant
than in immigration. Federal control over immigration policy is
necessary because [i]mmigration policy can affect trade, investment,
tourism, and diplomatic relations for the entire Nation, as well as the
perceptions and expectations of aliens in this country who seek the full
protection of its laws. Arizona, 132 S. Ct. at 2498. In an exercise of its
broad, undoubted power over immigration, id., in 1986, Congress
created a comprehensive and careful[ly] balance[d] system
regulating the employment of undocumented immigrants, id. at 250405, that is now central to the nations policy on immigration. Hoffman,
24
535 U.S. at 147. See supra at 4-6 (describing IRCA). As part of this
system, Congress anticipated that individuals might respond to IRCA
by using false documents to show eligibility to work and provide[d] for
this reality by equipping federal officials with multifaceted, versatile
tools to address fraud. 132 Cong. Rec. S16879-01 (statement of cosponsor Sen. Simpson).
First, IRCA amended 18 U.S.C. 1546(b) pertaining to Fraud
and misuse of visas, permits, and other documents to allow criminal
sanctions for the use of a false identification document or making of a
false attestation for purposes of satisfying the employment verification
requirement. Pub. L. 99-603, 103 (1986). It expanded the prohibition
on selling, making or using fraudulent immigration documents to
include those documents used as evidence of authorized . . .
employment in the United States. Id. (amending 18 U.S.C. 1546(a)).
In addition, IRCA specifically designated the additional federal
criminal statutesboth newly amended and pre-existingthat could
be used to address fraud in the employment verification process. See
Pub. L. 99-603, 101 (adding 8 U.S.C. 1324a(b)(5) and listing certain
statutes related to fraud in Title 18, Sections 1001 [false statements],
1028 [fraud in connection with identity documents], 1546, and 1621
[perjury]).
Second, Congress created civil penalties for document fraud. 8
U.S.C. 1324c allows an administrative law judge to impose a fine,
after a hearing, on any person or entity who knowingly forge[s],
use[s] or attempt[s] to use a document not belonging to the
possessor to satisfy the requirements of the Immigration and
25
Nationality Act (INA), including for purposes of obtaining

employment. 8 U.S.C. 1324c(a)(1)-(4), 1324c(d).16 These are enforced
through a unified federal enforcement process that also covers the
INAs employer sanctions and anti-discrimination provisions. See 8
U.S.C. 1324a(e), 1324b(e)-(j), 1324c(d); 28 C.F.R. 68.1.
Third, Congress has established immigration consequences for
fraud in the employment verification process. See, e.g., 8 U.S.C.
1227(a)(3)(C)(i) (making an alien who is the subject of a final order for
violation of section 1324c of this title [] deportable); 8 U.S.C.
1182(a)(6)(C) (making those who make false claims to citizenship,
including for purposes of establishing eligibility for employment,
inadmissible and thus ineligible for adjustment of status).
Considering all of this, the District Court correctly concluded that,
taken together, the federal provisions evince an intent to occupy the
field of regulating fraud against the federal employment verification
system. 1-ER-29. The District Courts finding was consonant with the
Ninth Circuits precedent on analyzing the field preemptive effect of
federal immigration statutes. In its analysis in Valle del Sol, this Court
looked to (1) the comprehensiveness of the federal scheme, (2) the place
of the scheme within a larger regulatory structure, and (3) whether the
scheme directly evidenced an intent to limit the role of states. 732 F.3d
at 1026; see also Lozano v. City of Hazleton, 724 F.3d 297, 316 (3d Cir.
2013); Georgia Latino Alliance for Human Rights v. Governor of
Congress added these civil penalties to the federal framework
through the Immigration Act of 1990 (IMMACT), Pub. L. 101-649
(codified as 8 U.S.C. 1324c).
16
26
Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012) (GLAHR); United States
v. South Carolina, 720 F.3d 518, 530-31 (4th Cir. 2013). Each of these
factors confirms that Congress has occupied the field of fraud in
response to the federal employment verification system.
First, the federal scheme addressing such fraud is extensive. As
set forth above, Congress has imposed every kind of penalty that can
arise from an unauthorized aliens use of false documents to secure
employmentcriminal, civil and immigration[.] 1-ER-29. Faced with a
similarly comprehensive federal scheme involving the harboring of
undocumented immigrants, this Court voided another Arizona criminal
law, A.R.S. 13-2929. Valle del Sol, 732 F.3d at 1023-26 (finding federal
alien harboring scheme to be comprehensive because it included a full
set of standards, including graduated punishments); see also Lozano,
724 F.3d at 31618; South Carolina, 720 F.3d at 53132; GLAHR, 691
F.3d at 1267; United States v. Arizona, Case 2:10-cv-01413-SRB, Doc.
215 (filed Nov. 17, 2014); We Are America v. Maricopa County Bd. of
Suprs, 297 F.R.D. 373, 38892 (D. Ariz. 2013). Like the alien harboring
scheme, the federal scheme for regulating fraud in the employment
verification process reflects careful consideration by Congress, providing
federal officials with a complete set of tools to address a range of
regulated conduct. See Valle del Sol, 732 F.3d at 1025-26.
Second, just as regulation of alien harboring is one part of a
broader scheme governing the crimes associated with the movement of
aliens in the United States, Valle del Sol, 732 F.3d at 1024, federal
regulation of fraud in employment verification is one part of a broader
policy framework regulating the employment of immigrants. See
27
Arizona, 132 S.Ct. at 2504 (identifying laws addressing fraud as part of

IRCAs regulatory scheme); Hoffman, 535 U.S. at 148 (same).
Restrictions on fraud in employment verification, together with other
parts of the federal scheme regulating employment of undocumented
immigrants, constitute a full set of standards designed to work as a
harmonious whole. Valle del Sol, 732 F.3d at 1025 (quoting Arizona,
132 S.Ct. at 2501). The overall scheme reflects a careful balance
designed to further the priorities of deterring employment of
undocumented immigrant workers while protecting them from
exploitation. Arizona, 132 S.Ct. at 2505.
Third, Congress evidenced its intent to limit states role in this
area by circumscribing the law enforcement use that may be made of
information submitted in connection with the verification process. See 8
U.S.C. 1324a(b)(5) (restricting use to enforcement of the INA and
sections of the federal criminal code). [8 U.S.C. ] 1324a(d)(2)(F)
provides in even clearer language that [t]he [verification] system may
not be used for law enforcement purposes other than those
enumerated in the statute. Arizona, 641 F.3d at 358-59 (noting that this
prohibited Arizona from using the information to enforce a state law
criminalizing unauthorized work, S.B. 1070s Section 5(C)); see also 8
U.S.C. 1324a(d)(2)(C), (d)(2)(G), (b)(4) (containing further language
limiting copying and use of documentation).
Recently, the Fourth Circuit relied on two of the same federal laws
at issue here8 U.S.C. 1324c(a)(1)-(2) and 18 U.S.C. 1546to hold
that Congress has occupied the field of creating, possessing, and using
fraudulent immigration documents. South Carolina, 720 F.3d at 533.
28
Like Appellants here, South Carolina had argued that its state law,
which made it unlawful for any person to display or possess a false or
counterfeit ID for the purpose of proving lawful presence in the United
States, did not relate to the field of alien registration because it
instead addressed ordinary fraud. Id. (summarizing Section 6(B)(2) of
South Carolinas Act 69). But the Fourth Circuit nevertheless found the
provision preempted. Id.17
The comprehensiveness of the federal scheme here, the place of
that scheme within a larger regulatory structure governing the
employment of undocumented immigrants, and the direct evidence of
Congresss intent to prevent the employment verification requirements
from being appropriated for law enforcement goals outside of the federal
system all demonstrate[] an overwhelmingly dominant federal interest
in the field. Valle del Sol, 732 F.3d at 1026 (quoting GLAHR, 691 F.3d
at 1264). They impel the conclusion that Congress has fully occupied
the field.
Appellants try to distinguish this case from South Carolina and other
preemption precedents by arguing that they did not apply to U.S.
citizens. AOB 27. But, among other things, they ignore the fact that
South Carolinas law did apply to U.S. citizens. Section 6(B) of Act 69
requires officers to investigate any person they reasonably suspect to be
unlawfully present by examining any number of documents, including a
state drivers license. Act 69, 2011 S.C. Acts (S.B. 20). A U.S. citizen
asked for identification under this Section who presented a false
document would certainly have been in violation of the fraud provision
in Section 6(B)(2).
17
29
2.
Appellants fail to acknowledge the federal

scheme at issue or its Congressional intent,
instead considering statutory provisions out of
context
Appellants do not contest that Congress has completely occupied

the field of fraud to circumvent the employment verification system.
Instead, they make the straw man argument that Congress has not
occupied the field of identity theft. See, e.g., AOB 25-33. Appellees have
never contended, and the District Court did not hold, that Arizonas
worker identity statutes are preempted because Congress occupied the
field of identity theft generally. Indeed, Arizona has other identity theft
statutes that Appellees have not challenged.
For example, Appellants take issue with the District Courts
reliance on 18 U.S.C. 1028, a statute dealing generally with identity
document fraud. They try to make something of the fact that the statute
can sometimes be used to prosecute fraud in connection with a violation
of state or local law. AOB 29-30. The fact that the statute can also be
used in contexts other than the employment of undocumented workers,
including in connection with state law, however, does not say anything
about whether Congress meant to preserve a role for the states in the
subset of cases that deal with immigration. Rather, the District Courts
reliance on this statute was based on the fact that the statute was
incorporated into IRCA as one tool among several that could be used to
address fraud in response to the employment verification system. See,
e.g., 8 U.S.C. 1324a(b)(5), (d)(2)(F). Appellants attempt to cherry-pick
individual provisions cited by the District Court and consider them out
of context undermines the notion that the purpose of Congress is the
30
ultimate touch-stone in every pre-emption case, see Medtronic, Inc. v.

Lohr, 518 U.S. 470, 485 (1996) (citation omitted), and should be
rejected.18
Appellants also take 8 U.S.C. 1324a(b)(5), (d)(2)(F)-(G) out of
their place in the larger structure of IRCA and argue that the explicit
mention of the Form I-9 means Congress somehow intended to carve
out an ability for states to prosecute undocumented workers so long as
they can avoid using the Form I-9. AOB 37-39. But Congresss decision
to enact certain provisions limiting how documents would be used does
not bar the ordinary working of preemption principles or impose a
special burden that would make it more difficult to establish the
preemption of law falling outside of those clauses. Arizona, 132 S. Ct.
at 2504-05 (quoting Geier, 529 U.S. at 869-872). Appellants belief that
these provisions should be read to be narrowing, rather than indicative
of Congresss broader intent to occupy the field, is thus mistaken.19
More importantly, the fact that MCAO has opted to limit use of the
Appellants dismiss the preemptive effects of other parts of the federal
scheme, such as 18 U.S.C. 1546(a), 1546(b) and 8 U.S.C. 1324c,
with a simple declaration that they apply only in the context of federal
immigration law. AOB 39. This again mis-presumes the relevant field
is identity theft generally.
19 Indeed, even these provisions apply to not just the Form I-9, but any
information employees submit to indicate their work status. Arizona,
132 S. Ct. at 2504; see also supra at 23 n.15. An attempt to prosecute
the same workers using other employment documents theyve filled out
falsely in order to be consistent with the information they submitted on
the Form I-9 would still constitute use[] of [t]he [employment
verification] system for a prohibited law enforcement purpose[]. 8
U.S.C. 1324a(d)(2)(F).
18
31
Form I-9 is irrelevant to Appellees facial challenge, since, as discussed

at supra Part I.A.2 above, the clear aim of the worker identity
provisions was to punish undocumented immigrants and there is no
indication that Arizona lawmakers were trying to legislate around
federal law.
Finally, Appellants make a circular argument that because a
person may be deported under federal removal statutes based on a
violation of Arizonas worker identity provisions, Congress must have
intended for the provisions to coexist with IRCA. AOB 33-37. But the
fact that a (state or federal) conviction can lead to deportation does not
suggest any design by Congress (or this Court) to save an otherwise
preempted state law, or even determine which state convictions are
valid. Further, preemption was not raised in any of the Ninth Circuit
removal cases cited by Appellants, so those cases do not establish that
the underlying convictions were valid. If Appellants were correct in
their hypothesis that all state convictions encompassed in the generic
categories of crimes triggering removability cannot be preempted, then
even convictions that Appellants concede would be invalidsuch as
convictions based on a Form I-9would be included.
The District Court properly concluding the worker identity
provisions are likely field preempted.
C.
Arizonas Worker Identity Provisions are Conflict

Preempted
This Court can also affirm the District Courts preliminary

injunction on the grounds that the worker identity provisions conflict
with federal law. A state law is conflict preempted where, as here, it
32
stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress. Arizona, 132 S. Ct. at 2501
(citations omitted). Even if a challenged state law shares some similar
goals with the federal scheme, as here, the layering of additional and
different penalties on top of federal law can undermine[] the
congressional calibration of force. 1-ER-30-31 (quoting Crosby, 530 U.S.
at 380); see also Valle del Sol, 732 F.3d at 1027. Further, Arizonas
creation of a separate scheme to punish undocumented workers because
they believed the federal government was not enforcing immigration
laws with sufficient vigor divest[s] federal authorities of exclusive
control over enforcement and allows prosecutors to bring cases
unaligned with federal . . . priorities. Valle del Sol, 732 F.3d at 1027.
Together, these conflicts interfere with the careful balance struck by
Congress with respect to unauthorized employment of aliens in IRCA.
Arizona, 132 S. Ct. at 2504.
Parsing the federal and state schemes, the District Court correctly
found that Arizonas worker identity provisions were likely conflict
preempted. Appellants do not undermine this finding.
1.
The Arizona provisions disrupt the congressional

calibration of force by imposing additional and
different penalties on unauthorized workers
Even when state and federal laws share overlapping goals, a

conflict in technique can give rise to preemption, as it can be fully as
disruptive to the system Congress enacted as conflict in overt policy.
Arizona, 132 S. Ct. at 2505 (quoting Motor Coach Employees v.
Lockridge, 403 U.S. 274, 287 (1971)). Despite significant clashes in
33
technique between federal law and the worker identity provisions,

Appellants make two meritless arguments as to why there is no conflict
here.
First, they suggest that even if there is a conflict in technique, the
Arizona provisions are not problematic because they serve different
purposes than IRCA. AOB 46-48. As discussed at length above, see
supra Part I.A.2, the worker identity provisions purpose and primary
effect is to regulate fraud by immigrants who are working without
authorization. Moreover, conflict preemption does not require an
identity of purposes between state and federal law.20 The law merely
says a conflict may arise due to an inconsistency of sanctions
irrespective of common purpose. Crosby, 530 U.S. at 379-80 (The fact of
a common end hardly neutralizes conflicting means).
Next, Appellants argue that there is no conflict because state and
federal laws carr[y] similar penalties. AOB 52-54. First of all,
Appellants do not address the District Courts observation that
Arizonas worker identity provisions include only a criminal sanction. 1ER-31. The federal scheme, on the other hand, provides federal
authorities with a range of possible actions depending on the
circumstances in each case, including criminal, civil and immigration
consequences. Id. In practice, the federal scheme relies heavily on civil
rather than criminal sanctions. See supra at 5-6. Because Arizona
Indeed, part of the problem flows from the contrast between Arizonas
singular purpose to punish undocumented workers and IRCAs pursuit
of a balance of statutory objectives with respect to the same individuals.
See infra Part I.C.2.
20
34
officials have no authority to impose civil or immigration penalties in

lieu of criminal punishment, Arizonas scheme is devoid of such
versatility and in conflict with federal law. See Arizona, 132 S. Ct. at
2503 (finding conflict because state law rules out probation as a
possible sentence (and also eliminates the possibility of a pardon)); see
also Gould Inc., 475 U.S. at 286 (conflict is imminent whenever two
separate remedies are brought to bear on the same activity) (citations
omitted). Appellants not only fail to engage with this relevant body of
law, focusing narrowly on the possible sentences for a single federal
statute, 18 U.S.C. 1028, they also unjustifiably dismiss the
inconsistencies they do identify. AOB 53.
Further, Appellants ignore the fact that Arizona law permits
unchecked criminal prosecution of individuals who Congress has
exempted from punishment. In the case of trafficking, Congress has
instructed that victims should not be inappropriately incarcerated,
fined, or otherwise penalized solely for unlawful acts committed as a
direct result of being trafficked, such as using false documents, entering
the country without documentation, or working without
documentation. 22 U.S.C. 7101(b)(19). Arizona law contains no such
limitation. See Valle del Sol, 732 F.3d at 1028 (finding Arizona statute
conflict preempted in part because it contained no safe harbor).
Finally, Appellants do not address the well-established rule that
where Congress has reserved exclusive authority over a field to federal
officials, a states imposition of its own, additional penalties for the
same conduct, even if harmonious, is impermissible. Arizona, 132 S. Ct.
35
at 2502.21 The cases cited by Appellants do not deal with this situation.
See, e.g., California v. ARC Am. Corp., 490 U.S. 93, 105 (1989) (noting
in that case that there was no clear purpose of Congress that would
render states imposition of additional liability preempted).
2.
Arizonas worker identity provisions intrude on

the federal governments exclusive prosecutorial
power and permit prosecutions unaligned with
federal priorities
Where Congress has reserved exclusive authority over an area to

federal officials, a states creation of its own, distinct enforcement
scheme creates a conflict for the additional reason that it divest[s]
federal authorities of the exclusive . . . prosecutorial power, and thus
discretion, to pursue prosecutions consistent with federal priorities.
Valle del Sol, 732 F.3d at 1027. Indeed, Arizonas worker identity
provisions create an independent scheme of prosecution and judicial
enforcement outside the control of the federal government. United
States v. S. Carolina, 840 F. Supp. 2d 898, 926-27 (D.S.C. 2011) (holding
state law conflict preempted for that reason), modified in part on other
grounds, 906 F. Supp. 2d 463 (D.S.C. 2012), affd, 720 F.3d 518 (4th Cir.
2013); see also Valle del Sol, 732 F. 3d at 1027 (analogous state laws
give[] state courts the power to interpret [the challenged state law]
unconstrained by how federal courts have interpreted the scope of
federal law) (citing GLAHR, 691 F. 3d at 1266).
While this is also a rule of field preemption, field and conflict

preemption are better understood as not rigidly distinct categories,
but rather, overlapping and interrelated. Crosby, 530 U.S. at 391 n. 6
(2000).
21
36
State interference with federal regulation of fraud in the

employment verification system is especially problematic because
federal officials must balance enforcement of fraud provisions not only
against other priorities reflected in the INA, but also against
enforcement of labor protections and international agreements
governing the rights of immigrant workers. Natl Ctr. for Immigrants
Rights, Inc. v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990) (IRCAs
scheme balances specifically chosen measures discouraging illegal
employment with measures to protect those who might be adversely
affected), revd on other grounds, 502 U.S. 183. Critically, IRCA
recognizes that undocumented workers should be treated less severely
than the employers that hire them and carefully limited the penalties
that would be imposed on workers, who already face the possibility of
employer exploitation because of their removable status. Arizona, 132
S. Ct. at 2504; see also supra at 6-7 (describing other evidence of federal
intent to protect immigrant workers).
Prosecutorial discretion and versatility are critical to federal
officials ability to pursue the delicate balance of statutory objectives
embodied in the federal scheme. Buckman, 531 U.S. at 348. Preventing
further exploitation of unauthorized workers is a key consideration
under IRCA. Consistent with the statutory scheme, ICE has relied
heavily on civil, rather than criminal, measures, and prioritized the
prosecution of employers. See supra at 5-6. Federal authorities are also
required to follow policies that encourage undocumented immigrants
who experience labor violations to cooperate with authorities. Id. at 6-7.
37
Appellants argue that prosecutorial power should be handed over

to countless local prosecutors in Arizonaand in potentially 49 other
stateswho are free to disregard federal policies and priorities. One
need look only to the campaign of worksite operations that Maricopa
County law enforcement officials carried out to see the obvious
interference this creates with the careful balance struck by Congress
with respect to the unauthorized employment of aliens. Arizona, 132 S.
Ct. at 2504; see supra at 7-8. In contrast to the federal scheme, the focus
of criminal enforcement in Maricopa County has been not on employers
but on undocumented workers, a group Congress specifically elected not
to prioritize. The operations have spread fear throughout the immigrant
community and put workers who have experienced labor violations in
an even more vulnerable position than before. See supra at 8; see also
14-ER-3193-94, de la Fuente Decl. 9-11 (workers at the Arizona
Workers Rights Center have been deterred from asserting workplace
rights).22
The Ninth Circuit recently confirmed that state policies that
interfere with congressional intent to grant discretion to the Executive
stand[] as an obstacle to the accomplishment and execution of the full
In briefing below, Appellant Maricopa County Attorney William G.
Montgomery further confirmed the departure of his offices practices
from federal policy. He declared that MCAO prosecutors would not
consider a persons immigration situation when prosecuting cases under
the worker identity provisions. See CR 74 at 18-19. Thus, victims of
trafficking and serious workplace violations that would be deprioritized
in the federal system to encourage them to cooperate with law
enforcement would receive no consideration of that fact from MCAO and
be prosecuted as a felon, foreclosing pathways to lawful status.
22
38
purposes and objectives of Congress. Ariz. Dream Act Coalition, 757

F.3d at 1063 (citations omitted); see also Buckman, 531 U.S. at 349
(The FDA thus has at its disposal a variety of enforcement options that
allow it to make a measured response to suspected fraud upon the
Administration. This flexibility is a critical component of the statutory
and regulatory framework under which the FDA pursues difficult (and
often competing) objectives.).
Notwithstanding all of the above, Appellants argue, based on dicta
from the plurality opinion in Chamber of Commerce v. Whiting, that
conflict preemption requires some direct interference with federal law
that is absent here. AOB 42-44, 54-55. Appellants misstate the meaning
of Whiting and its application to this case. In Whiting, the plaintiffs
challenged parts of LAWA that pertain to employers. 131 S. Ct. at 1973.
Plaintiffs had argued that the employer-focused provisions of LAWA
impermissibly upset[] the balance Congress struck in enacting IRCA
and were therefore conflict preempted. Id. at 1983. The plurality
opinion disagreed, distinguishing cases cited by plaintiffs as instead
involving actions that directly interfered with a federal program. Id.
Whiting did little more than reiterate the general principle that
preemption requires an actual conflict rather than a hypothetical one.
See, e.g., Geier, 529 U.S. at 884. At no point did the plurality opinion
purport to establish a new rule.
On the other hand, the Supreme Court, joined by this and other
circuits, has held that where Congress intends to reserve prosecutorial
power and discretion to federal authorities, a state law that allows for
separate sanctions outside of federal control does in fact, on its own,
39
conflict with federal law. Buckman, 531 U.S. at 350 ([s]tate-law fraudon-the-FDA claims inevitably conflict with federal scheme); see also
Arizona, 132 S. Ct. at 2503; Valle del Sol, 732 F.3d at 1027; GLAHR,
691 F.3d at 1266. Such a finding would have been unlikely in Whiting,
given the express savings clause in IRCA that allows states to regulate
employers through licensing and similar laws. 131 S. Ct. at 1984
(quoting 8 U.S.C. 1324(h)(2)).
Further, Whiting noted that in implement[ing] the sanctions that
Congress expressly allowed Arizona to pursue through licensing laws . .
. Arizona went the extra mile in ensuring that its law closely tracks
IRCA's provisions in all material respects. Id. at 1981. That is far from
the case here with the worker identity provisions, which impose
different penalties than federal law and permit felony prosecutions
against individuals that federal law has exempted or deprioritized for
punishment. See supra at 35-36, 38-39.
D.
The Worker Identity Provisions are Unconstitutional

in All Their Applications
Appellants argue, based on United States v. Salerno, 481 U.S. 739

(1987), that the worker identity provisions are not facially preempted
because there may be some applications that do not implicate the
federal scheme. AOB 20-22 (disagreeing with District Courts rejection
of this argument). But Salerno ensures only that an otherwise valid
statute will not be voided because of the risk that it might sometimes be
applied unconstitutionally. 481 U.S. at 745. Here, Arizonas worker
identity provisions were preempted from the moment they were enacted.
This Circuit recently rejected a similar argument in Lopez-Valenzuela v.
40
Arpaio. 770 F.3d 772, 789 (9th Cir. 2014) (en banc). As the Court
explained, [b]ecause Proposition 100 is not carefully limited as
Salernos heightened scrutiny test requires, the entire statute fails . . .
and would thus be invalid in all of its applications. Id. (citations
omitted).
Appellants point to the Supreme Courts decision in Arizona to
overturn the preliminary injunction against Section 2(B) of S.B. 1070
and suggest that the challenged provisions could similarly be read in a
way to avoid constitutional problems here. AOB 21. First, as the Third
Circuit recognized in Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir.
2013), cert. denied, 134 S. Ct. 1491 (2014), no part of the majority
opinion in Arizona . . . references Salerno at all. Id. at 313 n.22
(discussing Salernos interaction with preemption challenges).
Moreover, in Arizona, the Supreme Court was dealing with a preenforcement challenge. Arizona, 132 S. Ct. at 2510. Here, the worker
identity provisions have been fully implemented and they have not
been implemented in any narrower, constitutional manner. LopezValenzuela, 770 F.3d at 789; see supra at 21-23. Indeed, the provisions
could not be implemented in a constitutional manner without
eviscerating the meaning of H.B. 2779 1 and H.B. 2745 1thus, no
reasonable or readily apparent narrowing construction is available.
Lopez-Valenzuela, 770 F.3d at 789.23
Amici for Appellants contend that the District Court should have
considered the possibility of severance to enjoin only the state
prosecution of fictitious identification documents when being used to
satisfy and at the time of the federal employment verification process.
23
41
II.
The District Court Had Ample Grounds to Find that the

Remaining Equitable Factors Weigh in Favor of a
Preliminary Injunction
A.
Appellees Will Suffer Irreparable Harm
The District Court found that a preliminary injunction was

appropriate because Puente members would otherwise suffer
irreparable harm from illegitimate prosecution. 1-ER-33-35.24 The
Court further found that Appellees were prudent rather than dilatory in
seeking relief. Id. at 34-35. Appellants fail to demonstrate that either of
these findings were illogical, implausible, or without support in
inferences that may be drawn from the facts in the record. See United
States v. Hinkson, 585 F.3d 1247, 1251 (2009) (en banc) (describing
clear error review).
BOA 15. This not only reflects an overly narrow reading of the
preempted field, but a misunderstanding of severance doctrine.
Severance principles do not allow a court to rewrite a challenged law,
only to strike invalid provisions while leaving any valid provisions
intact. See, e.g., State v. Prentiss, 163 Ariz. 81, 86 (1989). Here, the
District Court enjoined the invalid provisions of A.R.S. 13-2008 and
13-2009 only.
24 As the District Court noted, because Puentes members have shown
irreparable harm, the Court need not address the likelihood of
irreparable harm to other Plaintiffs. 1-ER-35 n.9. Thus, Appellants
arguments about harm to Puente as an organization, see AOB 56-57,
are not at issue in this appeal. Were the Court to reach the issue, it
should find that Puente as an organization made a clear showing of
irreparable harm. See 14-ER-3187-91, Garcia Decl. 16-41; Valle del
Sol, 732 F.3d at 1018, 1029. Additionally, Appellee Rev. Susan
Frederick-Gray demonstrated irreparable harm because her municipal
tax dollars were being used to enforce unconstitutional laws. See 14-ER3205-06, Frederick-Gray Decl. 5-14; We Are America, 297 F.R.D. at
385-86.
42
1.
The District Court correctly found that members

of Puente were at risk of unconstitutional
prosecutions
It is a well established principle that the deprivation of

constitutional rights unquestionably constitutes irreparable injury.
Melendres, 695 F.3d at 1002 (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)). In particular, plaintiffs may establish a likelihood of
irreparable harm by demonstrating a credible threat of prosecution
under a preempted state law. Valle del Sol, 732 F.3d at 1029; see also
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992);
GLAHR, 691 F.3d at 1269.
The District Court found that three members of Puente face[d] a
credible threat of prosecution under the worker identity provisions. 1ER-34; see also 1-ER-15-17; 2-ER-102-116. It observed that irreparable
injury would stem[] from the emotional, reputational, and workrelated harms that accompany an illegitimate prosecution. 1-ER-34.
Appellants do not contest that some of Puentes members are in
violation of the worker identity provisions or that prosecution would
cause them irreparable harm. They argue only that the likelihood of
future prosecution is not sufficiently real or immediate because
Appellants did not made a direct or specific threat against the
members. AOB 57-58.
Appellants argument, based on City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983), is foreclosed by controlling law that Appellants do
not address. In Oklevueha, this Court set forth the test by which it
evaluates whether a genuine threat of imminent prosecution exists.
43
676 F.3d at 835. The Court considers: (1) whether the plaintiffs have
articulated a concrete plan to violate the law in question; (2) whether
the government has communicated a specific warning or threat to
initiate proceedings; and (3) the history of past prosecution or
enforcement under the statute. Id. (citation omitted). Thus, the
presence of a specific threat of enforcement is one way that a plaintiff
can demonstrate a likelihood of prosecution, but not the only way.
Indeed, as the District Court noted, whether prosecuting
authorities have communicated a specific warning is less relevant
when there is a clear history of enforcing the law in question. 1-ER-17.
A history of past enforcement against parties similarly situated to the
plaintiffs cuts in favor of a conclusion that a threat is specific and
credible. Lopez v. Candaele, 630 F.3d 775, 786-87 (9th Cir. 2010). Here,
there was a substantial history of vigorous enforcement. See supra at 78; 1-ER-16 (summarizing prosecution data); see also 14-ER-3186-90,
Garcia Decl. 13, 35-37.25
Lyons does not hold otherwise. In Lyons, the Supreme Court found
that the plaintiff faced a low risk of being subjected again to a
chokehold by the Los Angeles Police Department (LAPD) because that
would only occur following an unlikely chain of events. 461 U.S. at 105-
Though MCSO, with a decision on the preliminary injunction

imminent, decided to voluntarily enjoin[] themselves from enforcing
the worker identity provisions, 2-ER-69, and tried to argue this mooted
Appellees case, Appellants identified nothing that would prevent the
MCSO from resuming enforcement . . . at a later date. 1-ER-17-18.
25
44
06.26 But the contingency in this casewhether Puente members will

be arrested and prosecuted for violating the worker identity
provisionswas far more likely to materialize given the District Courts
finding that Appellees ha[d] not only articulated a concrete plan to
violate the law in question . . . they [we]re currently violating it. 1-ER16 (quoting Oklevueha, 676 F. 3d at 835).27
Though the plaintiff in Lyons alleged that the LAPD routinely applied
the chokehold, he did not try to show that the chokehold was part of an
official policy or practice. Lyons, 461 U.S. at 105-06. That distinction
from this case is crucial. See LaDuke v. Nelson, 762 F.2d 1318, 1324
(9th Cir. 1985) amended, 796 F.2d 309 (9th Cir. 1986).
27 Appellants amici contendfor the first time on this appealthat the
District Courts preliminary injunction was improper under Younger v.
Harris, 401 U.S. 37 (1971). BOA 12-14. First, that argument was
waived by Appellants below, since it was not raised at any point and the
State voluntarily submitted to federal jurisdiction. See Kleenwell
Biohazard Waste & Gen. Ecology Consultants v. Nelson, 48 F.3d 391,
394 (9th Cir. 1995) (state waives its right to raise Younger on appeal
when, as here, it expressly urge[s] ... the District Court to proceed to an
adjudication of the constitutional merits, even where it might have
had a tenable claim for abstention) (citation omitted); 1-SER-230-232
(stipulation reflecting Arizonas decision to be substituted in as a
Defendant in this action to defend the constitutionality of the
challenged provisions). That it is amici raising the issue makes no
difference for the waiver analysis. See Lopez v. Pac. Mar. Assn, 657
F.3d 762, 766-67 (9th Cir. 2011) (refusing to consider new issues not
presented to court below where urged to by amici).
Second, Younger abstention only applies to cases where the plaintiff
urges a federal court to intervene in an ongoing state judicial
proceeding. San Jose Silicon Valley Chamber of Commerce Political
Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
None of the Puente members who submitted declarations were in
criminal proceedings. 2-ER-102-116. Puentes request was that the
District Court enjoin future proceedings. See Doran v. Salem Inn, Inc.,
26
45
2.
The passage of time does not undermine the

finding of irreparable harm to Puente
Appellants also try to suggest that the passage of time between

the enactment of the worker identity provisions and filing of this suit
demonstrates the lack of need for speedy action. AOB 59-60 (quoting
Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir.
1984)). The District Court rejected this argument, concluding that
[d]elay is not decisive[.] 1-ER-35.
Indeed, delay is but a single factor to consider in evaluating
irreparable injury; courts are loath to withhold relief solely on that
ground. Arc of Cal., 757 F.3d at 990 (citation omitted). As the District
Court observed, case law concerning the preemptive effect of federal
immigration law has evolved significantly over the past few years. 1ER-35. Key precedents on which Appellees preliminary injunction
motion reliedincluding Arizona and Valle del Solwere only recently
decided. Appellees also presented evidence of other factors that
explained the passage of time: the impact of the provisions on Puente
was cumulative, they hoped to resolve their grievances through nonlitigation political advocacy efforts, and it took time for them to find
attorneys with the expertise and capacity to represent them pro bono. 1SER-57-58 Supp. Garcia Decl. 5-15. Under these circumstances,
Appellees decision to wait until a credible case for irreparable harm
[could] be made [wa]s prudent rather than dilatory. 1-ER-35 (citation
omitted); see also Arc of Cal. 757 F.3d at 991 (where delay is explained
422 U.S. 922, 930 (1975) (preliminary injunction against future
proceedings not subject to Younger).
46
by other factors, its significance . . . in determining irreparable harm

may become so small as to disappear);28 Rodriguez v. Robbins, 715 F.3d
1127, 1145 n.12 (9th Cir. 2013) (delay explained in part by need to
await final resolution of controlling case law).
B.
The District Court Correctly Found That the Equities

Tipped Sharply in Favor of Appellees and That An
Injunction is in the Public Interest
Finally, the District Court found that the equities and public
interest favored a preliminary injunction. 1-ER-35-36. It did not reach
this conclusion lightly. While Appellants would have this Court
substitute its judgment for that of the District Court, that is not the
proper role of the appellate court. See Rucker v. Davis, 237 F.3d 1113,
1118 (9th Cir. 2001) revd on other grounds sub nom. Dept of Hous. &
Urban Dev. v. Rucker, 535 U.S. 125 (2002) ([W]e will not second guess
whether the court correctly applied the law to the facts of the case,
which may be largely undeveloped at the early stages of litigation.);
Williams v. Zbaraz, 442 U.S. 1309, 1312 (1979) (Balancing the equities
is always a difficult task, and few cases are ever free from doubt.).
Of course, no equitable or public interest can come from enforcing
an unconstitutional law. Ariz. Dream Act Coal., 757 F.3d at 1069; Valle
del Sol, 732 F.3d at 1029; Melendres, 695 F.3d at 1002. By
preliminarily enjoining the worker identity provisions, the District
Court halted the disruption to the federal system that Arizonas laws
Appellants argue that Arc of California is distinguishable because it

dealt with statutory changes rather than shifts in case law. AOB 59-60.
That is a distinction without a difference.
28
47
were causing and ensured that Puente members would not be

irreparably harmed by illegitimate prosecution. 1-ER-34-36.
Further, the injunction does not leave [Appellants] unequipped to
combat [identity theft]. 1-ER-36. The preliminary injunction voids only
A.R.S. 13-2009(A)(3) and the portion of A.R.S. 13-2008(A) that
addresses actions committed with the intent to obtain or continue
employment. 1-ER-36. As the District Court noted, the remainder of
A.R.S. 13-2008 and 13-2009 are still intact and Appellants can use
those provisions against any individuals who use the identity
information of another person with the purpose of causing harm or
financial loss. 1-ER-35.29 Further, Appellants contention that
individuals who commit employment-related identity theft for purposes
other than to circumvent the federal employment verification system
are immune from prosecution, AOB 62, is simply incorrect. Arizona
officials can likely continue to charge those individuals under the state
forgery statute, A.R.S. 13-2002, among other provisions. Finally,
For this reason, amicis argument about Hernandez v. Lynch, 167
P.3d 1264 (Ariz. Ct. App. 2007), BOA 6-7, 11, is inapposite. The District
Court did not enjoin Arizona law enforcement officers prosecuting an
individual who uses the identity information he or she presented to
obtain employment to later engage in other unlawful conduct based on
statutes addressing that other conduct. Further, this Court did not
implicitly decide, as amici contend, BOA 6-7, that the worker identity
provisions were valid when it ruled Arizonas Proposition 100 bail law
to be unconstitutional in Lopez-Valenzuela. Even if Lopez-Valenzuela
discussed Hernandez, the constitutionality of the worker identity
provisions was not at issue in either case. See Lopez-Valenzuela, 770
F.3d at 775; Hernandez, 167 P.3d at 1265. Mr. Hernandez was not even
charged with a violation of the worker identity provisions. Hernandez,
167 P.3d at 1265-66.
29
48
Appellants own record evidence shows that individuals who have

difficulty accessing benefits because another person has used their
identity information are not without a remedythey can report this
occurrence to the Social Security Administration and Internal Revenue
Service. 3-ER-296-97.
Nonetheless, Appellants suggest that the preliminary injunction
harms the public and has left everyone in Arizona more vulnerable to
identity theft. AOB 61-62.30 Appellants amici add that the injunction
ignores the procedural, privacy, and substantive rights of identity theft
victims. BOA 3.31 However, the District Court did not fail to consider
the impact on those whose information would be used. 1-ER-36
(recognizing that the crime of identity theft affects the lives of many
Appellants err in asking the Court to take judicial notice of their

Appendix of 229 cases that they claim were (1) dismissed in response to
the preliminary injunction, and (2) in 219 cases, involved victims. AOB
10, 61. Judicial notice is only available for matters that are beyond
reasonable dispute. Fed. R. Evid. 201(b); see also Lee v. City of Los
Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Appellants have not
demonstrated that their factual assertions about the cases are beyond
reasonable dispute, and do not even supply the public records
themselves, cf. Fed. R. Evid. 201(c)(2), but merely a list of cases.
31 Citing miscellaneous authorities, Appellants amici argue that the
District Court violated victims procedural rights. But the federal Crime
Victims Rights statute does not identify any rights that were disturbed
by the District Courts decision. Further, Morris v. Slappy, 461 U.S. 1,
14 (1983) deals with consideration of the impact on victims in
connection with new criminal trials and Kenna v. U.S. Dist. Court for
C.D.Cal., 435 F.3d 1011, 1018 (9th Cir. 2006) deals with victims
opportunity to give an oral statement at sentencing. None of those
procedural issues are implicated here.
30
49
Arizonans). It simply concluded that Appellants may not violate the

Constitution in an effort to address these harms.
III. The District Courts Finding Regarding the Countys
Liability Should Not Be Disturbed
A.
The Issue of the Countys Monell Liability Is Not

Appealable at This Stage
Appellant Maricopa County seeks the opportunity on this limited,

interlocutory appeal of the preliminary injunction to have this Court
exercise pendent appellate jurisdiction over the issue of its liability. The
Court should decline the Countys request.
Because of the congressional directive that appellate review be
reserved for after a final judgment, rulings that do not independently
qualify for interlocutory appeal under 28 U.S.C. 1292(a)(1) may not be
reviewed unless those issues are inextricably intertwined with or
necessary to ensure meaningful review of the preliminary injunction.
Meredith v. Oregon, 321 F.3d 807, 812-13 (9th Cir. 2003) (quoting Swint
v. Chambers County Commn, 514 U.S. 35, 51 (1995)). Referred to as
pendent appellate jurisdiction, this exercise of the Courts authority
has been interpreted narrowly. Id. at 812; see also Poulos v. Caesars
World, 379 F.3d 654, 669 (9th Cir. 2004) (noting that [r]are is the
ruling that can meet the very high bar for pendent appellate
jurisdiction).
In Swint, the Supreme Court rejected an attempt by a county
commission to raise the issue of its Monell liability on an interlocutory
appeal by a Sheriff and two other individual defendants of an order on
qualified immunity, 514 U.S. at 51. Id. at 45. The Court found, among
50
other things, that the commissions liability was not inextricably

intertwined with the lower courts decision on qualified immunity,
since [t]he individual defendants' qualified immunity turns on whether
they violated clearly established federal law [whereas] the county
commission's liability turns on the allocation of law enforcement power
in Alabama. Id. at 51.32 Two issues are not inextricably intertwined if
[the Court] must apply different legal standards to each issue.
Meredith, 321 F.3d at 814 (citations omitted) (noting that issues must
either (a) be so intertwined that we must decide the pendent issue in
order to review the claims properly raised on interlocutory appeal, or (b)
resolution of the issue properly raised on interlocutory appeal
necessarily resolves the pendent issue). Similarly here, the test for a
preliminary injunction bears no similarity at all to the considerations
for Monell policymaker liability. Poulos, 379 F.3d at 671 (holding that
neither primary jurisdiction, Burford abstention, nor personal
jurisdiction were intertwined with class certification).
Nor is the question of the Countys Monell liability necessary to
ensure meaningful review of the preliminary injunction. Meredith, 321
F.3d at 813. In Meredith, a case involving jurisdiction over a Younger
abstention issue on appeal of a preliminary injunction, this Court
considered narrow circumstances warranting pendent jurisdiction
under this second prong, namely where: (1) the very benefit of a
pendent issue, such as immunity, would be lost or severely eroded once
The Swint Court also rejected the possibility that reaching the Monell
liability issue was necessary to ensure meaningful review of the
qualified immunity ruling. Id.
32
51
the suit is allowed to proceed past the motion stage of the litigation, or
(2) it goes to an issue, such as jurisdiction or abstention, that calls into
question the very power of the district court to issue the rulin[g] under
consideration. Id. at 816 (citations omitted). Neither is present here. As
the Supreme Court explained in Swint, the Countys assertion that the
Sheriff is not its policymaker does not rank . . . as an immunity from
suit, but is instead a mere defense to liability . . . [that] may be
reviewed effectively on appeal from final judgment. 514 U.S. at 43
(citations omitted).33 The Countys argument is also not one that
implicates the District Courts jurisdiction.
In Poulos, the this Court declined pendent jurisdiction even where
a subset of defendants raised jurisdictional challenges, since the court
would have retained jurisdiction over the class certification decision
regardless of whether it asserted personal jurisdiction over [those
defendants]. 379 F.3d at 672. An allegedly improperly enjoined
defendant is in no worse a position on interlocutory appeal than a
defendant forced to defend a class action in a court that she claims lacks
personal jurisdiction over her. Under this Courts precedent, both can
attack the underlying order to which they objectin this case, the
preliminary injunctionbut neither has a right to immediate relief on
ancillary issues that fall outside the narrow . . . realm of pendent
appellate jurisdiction. Id. at 669.
The Court made this statement in the context of ruling that the
decision on the county commissions Monell liability was not a collateral
order. Though the County has not asserted that the District Courts
ruling on Monell liability is a collateral order, this finding in Swint
would foreclose such a possibility.
33
52
B.
All Courts to Consider the Question Have Found the

County Liable for Sheriff Arpaios Law Enforcement
Decisions
If the Court reviews the Monell issue, it should affirm the District
Courts carefully considered and twice-made holding that the County is
liable for the Sheriffs official law enforcement decisions and policies. In
denying the Countys motion to dismiss and finding the County liable,
the District Court joined every other court to have considered the
question. See United States v. Maricopa Cnty., 915 F. Supp. 2d 1073,
1083-84 (D. Ariz. 2012) (finding as a matter of law that County is liable
for policies of the Sheriff); Mora v. Arpaio, No. CV-09-1719-PHX-DGC,
2011 WL 1562443, at *7 (D. Ariz. Apr. 25, 2011) (same); Lovejoy v.
Arpaio, No. CV 091912PHXNVW, 2010 WL 466010, at *12 (D. Ariz.
Feb. 10, 2010) (same); Ortega Melendres v. Arpaio, 598 F. Supp. 2d
1025, 1038-39 (D. Ariz. 2009) (same); 34 see also Flanders v. Maricopa
County, 54 P.3d 837, 847 (Ariz. App. 2002) (same as to jail
management);35 Guillory v. Greenlee County, No. CV 05352 TUC DCB,
In addition, this Court recently ordered that the County be
substituted for the MCSO as a defendant after MCSO was found not to
be a jural entity in Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir.
2015). The County petitioned for a panel rehearing and an en banc
determination, arguing as it does here that it should not be liable due to
the Countys horizontal structure of governance. Countys Pet. for
Panel Rehg and En Banc Determination, Melendres v. Arpaio, No. 1316285, Dkt. 77. The panel unanimously denied the Countys petition,
and no judge of this Court requested a vote. Id., Dkt. 87.
35 Though Flanders dealt with the Sheriffs responsibility over the jails,
the County makes no argument as to why the result should be different
with respect to the Sheriffs law enforcement duties. In Brewster v.
Shasta County, this Court found it require[d] little extension of a case
34
53
2006 WL 2816600, at *4-5 (D. Ariz. Sept. 28. 2006) (same as to Greenlee
County).
A municipality is liable under Monell for the actions of those
officials or governmental bodies who speak with final policymaking
authority for the [municipality] concerning the action alleged to have
caused the particular constitutional or statutory violation at issue.
McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 (1997) (citation
omitted). Courts analyzing Monell policymaker liability look to whether
(1) the official had final policymaking authority concerning the action
alleged to have caused the particular constitutional or statutory
violation at issue and (2) the official was the policymaker for the local
governing body for the purposes of the particular act. Weiner v. San
Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (quoting McMillian,
520 U.S. at 785).
1.
Sheriff Arpaio has final policymaking authority
As in McMillian, the parties agree that Sheriff [Arpaio] has final

policymaking authority in the area of law enforcement. 520 U.S. at
785. [T]o determine whether an official is a final policymaker, courts
consider whether the officials discretionary decisions are constrained
by policies not of that officials making and whether the officials
decisions are subject to review by the municipalitys authorized
policymakers. Lytle v. Carl, 382 F.3d 978, 985 (9th Cir. 2004) (citations
omitted). The Sheriffs duties include to [p]reserve the peace and to
involving sheriffs and jail management to hold that California counties
are also liable for sheriffs crime investigation policies. 275 F.3d 803,
807 (9th Cir. 2001), cert. denied, 537 U.S. 814 (2002).
54
[a]rrest and take before the nearest magistrate for examination all
persons who attempt to commit or who have committed a public
offense. A.R.S. 11-441. Here, the County has acknowledged, there is
no other county entity or official that can review the Sheriffs law
enforcement decisions. CR 141 at 4, 6 (stating that the Sheriffs policy
represents the policy that exists in Maricopa County and that if the
Sheriff decide[s] to enforce a criminal law, the [Board of Supervisors
(Board)] cannot stop [him]. Conversely, if [the Sheriff] decide[s] not to
enforce a criminal law, the [Board] cannot require [him] to reverse [his]
decisions) (emphasis in original).
The County argues that because the Board cannot overrule the
Sheriff and force him to comply with court orders, it makes no sense to
keep [the] County as a party defendant. MCOB 14. Although Appellees
request only declaratory and injunctive relief and not damages, there is
at least one practical reason why the Countys participation as a
defendant is consequentialAppellees seek to halt the Boards
expenditure of tax revenues to finance arrests, detentions and
prosecutions under the worker identity provisions. See id. at 9 n. 2
(citing A.R.S. 11-201(A)(6) and explaining that the Board determines
the budgets of all elected and appointed county officers).36 In any
event, as the District Court observed, though the Boards inability to
The District Court did not specifically reach the question of whether
this provided independent basis for keeping the County in the suit. 1ER-44-46. However, the availability of this alternative ground is yet
another reason why review of the Monell issue is not necessary to
ensure meaningful review of the District Courts preliminary
injunction order. Meredith, 321 F.3d at 812-13.
36
55
control the Sheriff might limit the Countys exposure to contempt or

other remedies if an injunction is disregarded, it does not alter the
fact that the County is a proper defendant under Monell. 1-ER-46.
2.
Sheriff Arpaio acts for the County in the area of

law enforcement
The only remaining question, then, is whether Sheriff Arpaio

represents the State or [] the county when [he] act[s] in a law
enforcement capacity. McMillian, 520 U.S. at 785. Though a federal
question ultimately, this inquiry depends on a careful and thorough
analysis of state [law]. Goldstein v. City of Long Beach, 715 F.3d 750,
753 (9th Cir. 2013), cert denied sub nom. Cnty. of Los Angeles, Cal. v.
Goldstein, 134 S. Ct. 906 (2014); see also Brewster, 275 F.3d at 806.
Relevant factors include whether the state or county indemnifies the
Sheriff for damages claims under 1983, whether the Sheriff is labeled
a state or county official in state law, how the Sheriff is elected and
removed from office, and which level of government exerts relatively
greater control over the Sheriff. See generally McMillian, 520 U.S. at
787-92; Goldstein, 715 F.3d at 753-58; Brewster, 275 F.3d at 806-10.
The District Court correctly found that the Sheriff acts on behalf
of the County. First, the County concedes that a 1983 claim for
damages against the Sheriff would be considered a claim upon the
county and that the County, as in Brewster, is required to satisfy a
judgment on such a claim. MCOB at 13-14 n.7; see also A.R.S. 11-261.
In Brewster, a case where this Court found California sheriffs to be
county officers, the Court referred to this as a crucial factor [that]
56
weighed heavily in favor of county liability. 275 F.3d at 807 (citation

omitted).
Second, the Sheriff is identified as a county officer under the state
constitution and statutes. Ariz. Const. Art. XII, Sec. 3 (including the
sheriff in a list of County officers); A.R.S. 11-401 (including the
sheriff in a list of officers of the county). In contrast, in McMillian, the
case cited by Appellants involving Alabama sheriffs, the constitutional
provision at issue listed sheriffs as state executive officers. 520 U.S. at
806.
Third, it is the voters of Maricopa County that elect the Sheriff,
and the Board is the sole judge of his qualifications. A.R.S. 11-402.
Proceedings for his removal may be initiated by a county grand jury.
A.R.S. 38-341 et seq.; see also Brewster, 275 F.3d at 808 (considering
initiation of impeachment proceedings by county grand jury as another
reason why California sheriffs are different than the Alabama sheriffs
in McMillian).
Fourth, the County exerts greater control over the Sheriff than
the state. The Board is empowered to [s]upervise the official conduct of
all county officers . . . charged with assessing, collecting, safekeeping,
managing or disbursing the public revenues, A.R.S. 11-251(1), a
category that the County has impliedly acknowledged includes the
Sheriff. CR 55 at 14. The Board approves the Sheriffs appointed
deputies and sets their salaries. A.R.S. 11-409. It may compel his
attendance at their meetings and direct him to serve subpoenas,
notices, or citations. A.R.S. 11-219. Furthermore, it may require
[him] to make reports under oath on any matter connected with the
57
duties of his office, and may require [him] to give such bonds or further
bonds as may be necessary for the faithful performance of his respective
duties. A.R.S. 11-253; see also, e.g., Hounshell v. White, 199 P.3d 636
(Ariz. App. 2008).37 The County argues that Arizona exerts greater
control over the Sheriff because his powers and duties are set in state
statute and because he enforces state laws. MCOB at 11-12. But
California sheriffs also derive their powers from state statute and
enforce state laws, and this Court found them to be county officials.
Brewster, 275 F.3d at 808-09, 812.
The County suggests that the Sheriff makes policy for himself
only, MCOB at 10, 13; CR 141 at 4, and points to the horizontal
structure of County government to show that other court rulings finding
it liable were the result of confusion and misunderstanding. MCOB at
7, 9.38 But as the District Court emphasized, any limits on the Boards
The County misstates the holding of Hounshell. See MCOB at 11. In
that case, the Arizona Court of Appeals affirmed that the board of
supervisors had the authority to require the sheriff to post a bond and
could remove the sheriff for failure to do so. Id. at 640-43. It held that
the board could not require the sheriff to pay a premium on the bond.
Id. at 644.
38 The County flouts the rules of practice by presenting organizational
charts of the horizontal Maricopa County and the unitary New York
City, see MCOB at 9-10 n. 3-4, Exs. A-B, that it never presented to the
District Court in connection with its motion to dismiss or its motion for
reconsideration. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074,
1077 (9th Cir. 1988) (citing Fed.R.App.P. 10(a)). Though the County
suggests the Court can take judicial notice of the charts, judicial notice
is only available for matters of public record that are beyond
reasonable dispute. Lee, 250 F.3d at 689 (quoting Fed. R. Evid.
201(b)). That is not the case here.
37
58
control over the Sheriff is not dispositive of its liability. 1-ER-4. The
task here is not to determine whether a county official exercises certain
functions independently of other political entities within the county but
whether he acts for the county. Brewster, 275 F.3d at 810 (emphasis in
original) (finding that provision strengthening the separation of
powers between the sheriff and board of supervisors has no obvious
bearing on whether the sheriff should be understood to act for the state
or the county); see also Goldstein, 715 F.3d at 755 (holding that a
courts task is not merely to weigh the amount of control that the
[state] and county board of supervisors possess over [the Sheriff];
instead, we must decide whether the [Sheriff] was acting on behalf of
the state or the county) (emphasis in original). Here, the Sheriff most
certainly does act for the
CONCLUSION
For the reasons set forth herein, this Court should affirm the
District Courts order.
Dated:
Respectfully Submitted,
By /s/ Anne Lai
Anne Lai
Clinic
Irvine, CA 92616-5479
Jessica Myers Vosburgh
National Day Laborer
59
Organizing Network
2104 Chapel Hill Rd.
Hoover, AL 35216
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
127 N. Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
Jessica Karp Bansal
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Ray A. Ybarra Maldonado
Law Office of Ray A. Ybarra
Maldonado, PLC
2637 North 16th St., Unit 1
Phoenix, AZ 85006
On the brief:
Joshua D. Bendor
Joel Edman
60
CERTIFICATE OF COMPLIANCE
(F.R.A.P. 32(a)(7)(C))
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and
Ninth Circuit Rule 32-1, I certify that this APPELLEES
CONSOLIDATED ANSWERING BRIEF is proportionately spaced,
has a typeface of 14 points, and contains 15,748 words.
Dated:
/s/ Anne Lai

Anne Lai
Clinic
Irvine, CA 92616-5479
61
STATEMENT OF RELATED CASES

(9th Cir. Rule 28-2.6)
Appellees are not aware of any related cases within the meaning
of Rule 28-2.6 pending before this Court.
Dated:
/s/ Anne Lai

Anne Lai
Clinic
Irvine, CA 92616-5479
62
CERTIFICATE OF SERVICE
I
hereby
certify
that
electronically
filed
the
foregoing
APPELLEES CONSOLIDATED ANSWERING BRIEF with the

Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system on September 17, 2015. I
certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: September 17, 2015
/s/ Anne Lai

Anne Lai
63
ADDENDUM
Circuit Rule 28-2.7
1. A.R.S. 13-2008
2. A.R.S. 13-2009

Puente's Answering Brief in Ninth Circuit Preliminary Injunction Appeal

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Puente's Answering Brief in Ninth Circuit Preliminary Injunction Appeal

Uploaded by

Copyright:

Available Formats

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 1 of 83

Attorneys for Appellees

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 2 of 83

Jessica Myers Vosburgh

Jessica Karp Bansal

Ray A. Ybarra Maldonado

Attorneys for Appellees

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 3 of 83

CORPORATE DISCLOSURE STATEMENT

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 4 of 83

Factual Background ................................................................. 2

The District Court's Order ....................................................... 9

STANDARD OF REVIEW ........................................................................ 11

The District Court Rightly Concluded that Appellees are

The Clear Purpose and Effect of Arizona's Worker Identity

Courts deciding preemption claims examine the

The record demonstrates only one primary purpose

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 5 of 83

Arizona's Worker Identity Provisions are Field

Congress has fully occupied the field of fraud in

Appellants fail to acknowledge the federal scheme at

Arizona's Worker Identity Provisions are

The Arizona provisions disrupt the congressional

Arizona's worker identity provisions intrude on the

The Worker Identity Provisions are Unconstitutional

The District Court Had Ample Grounds to Find that the

Appellees Will Suffer Irreparable Harm ............................... 42

The District Court correctly found that members

The passage of time does not undermine the finding

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 6 of 83

The District Court Correctly Found That the Equities

The District Court's Finding Regarding the County's Liability

The Issue of the County's Monell Liability Is Not

All Courts to Consider the Question Have Found the

Sheriff Arpaio has final policymaking authority......... 54

Sheriff Arpaio acts for the County in the area of law

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 7 of 83

Arc of California v. Douglas

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 8 of 83

County of Los Angeles, California v. Goldstein

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 9 of 83

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 10 of 83

Lydo Enterprises, Inc. v. City of Las Vegas

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 11 of 83

Oklevueha Native America Church of Hawaii, Inc. v. Holder

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 12 of 83

Swint v. Chambers County Commission

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 13 of 83

Flanders v. Maricopa County

Guillory v. Greenlee County

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 14 of 83

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 15 of 83

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 16 of 83

Whether the District Court correctly found that the

challenged provisions of Arizona law, enacted with a clear intent and

Whether the District Court correctly found that the

challenged provisions pose an obstacle to federal lawand are therefore

Whether the District Court abused its discretion in granting

a preliminary injunction where Appellees made a clear showing of

Case: 15-15211, 09/17/2015, ID: 9687547, DktEntry: 68, Page 17 of 83

Whether this Court should disturb the District Courts

ruling regarding Maricopa Countys liability for Sheriff Arpaios law

This case was brought by Appellee Puente Arizona (Puente) and