Monday’s ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals marked a loss for Gov. Jan Brewer, who had asked the court to rescind a February 2012 decision by a judge who rejected Brewer’s arguments that the day labor rules were needed for traffic safety.
Groups that challenged the law argued that the day labor rules unconstitutionally restrict the free speech rights of people who want to express their need for work.
The appeals court said U.S. District Judge Susan Bolton had correctly determined that the day labor rules don’t meet a requirement that restrictions on commercial speech be no more extensive than necessary to serve the state’s interest in promoting traffic safety.
In Arizona, it’s legal to hire or be hired for day labor, and the state’s day labor rules limit the ability of day laborers and employers to seek or offer a lawful service, the appeals court wrote. “Arizona has also singled out day labor solicitation for a harsh penalty while leaving other types of solicitation speech that blocks traffic unburdened,” the appeals panel wrote.
The appeals court pointed out that the law’s introduction, which says the statute’s purpose is make attrition through enforcement the state’s immigration policy, says nothing about traffic safety.
The court also said the state’s punishment for breaking the day labor rules is far out of line with punishments for similar traffic violations. For instance, a person who is found by a court to have recklessly interfered with traffic faces a 30-day sentence, while a violation of the day labor rules is a misdemeanor punishable by a maximum 6-month jail sentence.
Dan Pochoda, legal director for the American Civil Liberties Union of Arizona, one of the groups that challenged the day labor rules, said Arizona already has plenty of power to confront its traffic woes. “There are already ordinances directed toward that problem, and there has been no showing that those are not adequate,” Pochoda said.
Brewer spokesman Matt Benson said in a written statement that Monday’s decision is a disappointment and that the governor will be talking with her lawyers about the state’s next step in the case.
The ruling on Monday focused on only the law’s day labor rules, which were among a handful of sections of the law that were allowed to take effect after a July 2010 decision.
The day labor restrictions weren’t among the sections of law that the Supreme Court considered last year when it upheld the law’s most contentious section that required police, while enforcing other laws, to question people’s immigration status if they’re believed to be in the country illegally. The nation’s highest court struck down other sections of the law, such as a requirement that immigrants obtain or carry immigration registration papers.
It’s unclear whether the day labor rules were enforced by police while they were in effect from July 2010 until the decision in February 2012.
Day labor organizers say they know of no arrests under the rules, though they added that day laborers are still arrested on trespassing and other charges that aren’t in the immigration law. In the past, some of the biggest police agencies in Arizona have reported little — if any — use of provisions in the law.
Brewer’s lawyers had argued that the restrictions are meant to confront safety concerns, distractions to drivers, harassment to passers-by, trespassing and damage to property. They said day laborers congregate on roadsides in large groups, flagging down vehicles and often swarming those that stop. They also said day laborers in Phoenix and its suburbs of Chandler, Mesa and Fountain Hills leave behind water bottles, food wrappers and other trash.
Groups that challenged the law said the state can’t justify the statewide ban on work solicitation speech imposed by the rules. They contend that the state’s arguments about traffic safety are a sham and that the real purpose of the day labor rules is to remove day laborers from public view.