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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 1 of 34

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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
By: ANN THOMPSON UGLIETTA (013696)
J. KENNETH MANGUM (003077)
Deputy County Attorneys
CIVIL SERVICES DIVISION
222 North Central Avenue, Suite 1100
Phoenix, Arizona 85004
Telephone No. (602) 506-8541
uglietta@mcao.maricopa.gov
mangumk@mcao.maricop.gov

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Attorneys for Defendants M.C. and M.C.A. William Montgomery


IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA


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Puente Arizona, et al.,

NO. 14-cv-01356-PHX-DGC

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Plaintiffs,

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vs.

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Joseph M. Arpaio, Sheriff of


Maricopa County, Arizona, et al.,

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Defendants.

DEFENDANT MARICOPA COUNTY


ATTORNEY WILLIAM
MONTGOMERYS FED. R. CIV. P.
56(A) MOTION FOR SUMMARY
JUDGMENT ON ALL CLAIMS AND
ALL REQUESTS FOR RELIEF
AND
HIS JOINDER IN DEFENDANT
STATE OF ARIZONAS MOTION
FOR SUMMARY JUDGMENT ON
FACIAL SUPREMACY CLAUSE
CLAIM AND FACIAL EQUAL
PROTECTION CLAUSE CLAIM

Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 2 of 34

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Table of Contents

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I.

EXECUTIVE SUMMARY ....................................................................................... 2

II.

PRODEDURAL BACKGOURND ........................................................................... 3


A. District Court Proceedings....3

B. U.S. Court of Appeals for the Ninth Circuit.4


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III.
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PLANTIFFS AS-APPLIED PREEMPTION CLAIM FAILS AS A MATTER


OF LAW4

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A. Presumption Against Preemption


Applies..4
B. Identity Theft Laws and Forgery Laws Are Textually Neutral ...6
C. Congress Validates State Enforcement of Identity Theft/Forgery
Statutes..7
D. Montgomery Exercises Legitimate State Police Powers In Prosecuting the
Identity Theft Laws and Forgery Laws8

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1. Elevated Incidence of Identity Theft8


2. Incidence of MCAO Employment-Related Identity
Theft/Forgery Prosecutions..9
3. Employment-Related Identity Theft/Forgery Is Not A
Victimless Crime....10

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4. Montgomerys Prosecutions Address Serious Victim Harms....11

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E. Plaintiffs Cannot Prove That Congress Manifested Any Intent To


Preempt Montgomerys Employment Prosecutions Not
Having APractical Effect on the I-9 System or
Federal Immigration,,...14

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1. Montgomerys Employment Prosecutions Turn on Evidence of the


Offenders Conduct in Violation of the Laws, Not the Offenders
Immigration Status14
2. Montgomerys Non-Preempted Applications Require Summary Judgment
For Montgomery......19
i. The Limited Regulatory Reach of the I-9 System.19
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 3 of 34

ii. Montgomerys Employment Prosecutions Do Not Have A Practical


Effect
on
the
I-9
System
or
Federal
Immigration ...21

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a. Montgomerys Employment Prosecutions Relying on Non-Form I9 Evidence Are Not Preempted..21

b.

Montgomerys Formal Written Policy Prohibiting I-9


Charging..23

c. Additional
System..25

Non-Preempted

Applications

Outside

the

I-9

F. Plaintiffs As-Applied Supremacy Clause Claim Fails......27

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IV.

MONTGOMERY IS ENTITLED TO SUMMARY JUDGMENT ON


PLAINTIFFS FACIAL SUPREMACY CLAUSE CLAIM AND FACIAL
EQUAL PROTECTION CLAUSE CLAIM AS A MATTER OF LAWS .................27

V.

CONCLUSION ....................................................................................................... 28

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 4 of 34

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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
By: ANN THOMPSON UGLIETTA (013696)
J. KENNETH MANGUM (003077)
Deputy County Attorneys
CIVIL SERVICES DIVISION
222 North Central Avenue, Suite 1100
Phoenix, Arizona 85004
Telephone No. (602) 506-8541
uglietta@mcao.maricopa.gov
Attorneys for Defendants M.C. and M.C.A. William Montgomery
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,

NO. 14-cv-01356-PHX-DGC

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Plaintiffs,

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vs.

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Joseph M. Arpaio, Sheriff of


Maricopa County, Arizona, et al.,

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Defendants.

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Pursuant to Rule 56(a), Fed. R. Civ. P., and the principles of the Celotex Trilogy, 1

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DEFENDANT MARICOPA COUNTY


ATTORNEY WILLIAM
MONTGOMERYS FED. R. CIV. P.
56(A) MOTION FOR SUMMARY
JUDGMENT ON ALL CLAIMS AND
ALL REQUESTS FOR RELIEF
AND
HIS JOINDER IN DEFENDANT
STATE OF ARIZONAS MOTION
FOR SUMMARY JUDGMENT ON
FACIAL SUPREMACY CLAUSE
CLAIM AND FACIAL EQUAL
PROTECTION CLAUSE CLAIM

Defendant Maricopa County Attorney William Montgomery moves for summary judgment in
his favor on all Plaintiffs claims and requests for relief, and joins in the Motion for Summary
Judgment filed by Defendant State of Arizona on Plaintiffs Facial Supremacy Clause and
Facial Equal Protection Clause Claims. 2

There is no genuine issue of material fact.

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Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986; Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

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Plaintiffs voluntarily dismissed their claim for as-applied Equal Protection Clause violations
against Montgomery, Maricopa County and Maricopa County Sheriff Joseph Arpaio. [Doc.
139] On August 10, 2015, this Court granted Defendants motion to strike class allegations.
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Montgomery is entitled to summary judgment on each and every claim and each and every

request for relief asserted by Plaintiffs as a matter of law.

Judgment is supported by Defendant Maricopa County Attorney William Montgomerys

Statement of Undisputed Material Facts (CASOF) filed concurrently herewith.

This Motion for Summary

MOTION FOR JUDICIAL NOTICE: The CASOF cites and appends public records

from state criminal court cases filed in the Maricopa County Superior Court. [CASOF, 2,

3, 12, 19, 22, 23, 27, 29, 36, 40, 41, 44, 60, 62, 64, 65, 67, 69, 70, 72, 74, 75, 76, 77, 78, 79,

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80] Montgomery moves for judicial notice of these records pursuant to Fed. R. Evid. 201.
These Maricopa County Superior Court records are properly subject to judicial notice because
they are public records and the existence and authenticity of these records are not in dispute.
See Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). ("We may take judicial
notice of undisputed matters of public record, including documents on file in federal or state
courts.")

This Motion and the CASOF also cite to official information published on

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governmental websites. See infra at 12, 13 and CASOF, 7, 34, 35. Because the accuracy
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of this official information is undisputed, judicial notice of them is proper. See Arizona
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Libertarian Party v. Reagan, 798 F.3d 723, 727 (9th Cir. 2015) (We may take judicial notice
of official information posted on a governmental website, the accuracy of which [is]
undisputed.)
I.

EXECUTIVE SUMMARY.
In prosecuting violations of the provisions of A.R.S. 13-2009(A)(3) and 13-2008(A)

that criminalize use of anothers personal identifying information without consent for

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purposes of obtaining or continuing employment (Identity Theft Laws) and A.R.S. 13-

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2002 (Forgery Law), Montgomery is exercising traditional state police powers to protect

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the people of Maricopa County from the harms of identity theft/forgery. Approximately

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50% of MCAOs prosecutions have victims. MCAOs prosecutions do not intrude upon the

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IRCAs federal employment verification system, 8 U.S.C. 1324a and 8 C.F.R. 274a (I-9

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System or I-9 Requirements) or federal immigration policy. Congress has not manifested

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any intent to preempt MCAOs prosecutions of violations of Laws against any person who

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[Doc. 195] Those dismissed claims and stricken allegations are no longer part of this case
and are not viable bases for any request for relief.

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uses anothers identity for non-immigration reasons. See Puente Arizona, et al. v. Arpaio, et

al., 821 F.3d 1101, 1106 (9th Cir. 2016) (reversing facial preemption finding and vacating

preliminary injunction in this case).

Identity Theft Laws and Forgery Law require summary judgment in his favor on Plaintiffs

Supremacy Clause Claim as a matter of law.

Montgomerys non-preempted applications of the

Montgomery is not liable for Plaintiffs Facial Supremacy Clause Claim or Facial Equal

Protection Clause Claim because there is no evidence that Montgomerys official policies

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and practices were the moving force behind the States enactment of the Identity Theft
Laws. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 694 (1978).
In addition, Plaintiffs cannot establish facial unconstitutionality of the Laws. Plaintiffs

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have exhausted all the evidence and arguments they could muster in support of their facial
preemption challenge to the subject statutes. The 9th Circuit has ruled they fail in that effort.
Montgomerys non-preempted applications of the Identity Theft Laws mean Plaintiffs cannot
satisfy their burden under U.S. v. Salerno, 481 U.S. 739, 746 (1987). Puente Arizona, 821

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F.3d at 1104, 1108.


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Also, there is no evidence showing that the Laws treat unauthorized alien workers
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differently from other similarly-situated persons. Additionally, there is a rational basis for the
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States enactment of the Identity Theft Laws. See States Summary Judgment Motion, joined
in and incorporated herein by reference. Plaintiffs Facial Supremacy Clause Claim or Facial
Equal Protection Clause Claim fail as a matter of law.

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II.

PROCEDURAL BACKGROUND.
A. District Court Proceedings.

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On June 18, 2014, Plaintiffs filed Section 1983 claims seeking declaratory and

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injunctive relief against Montgomery, State of Arizona, Maricopa County, and Maricopa

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County Sheriff Arpaio. [Doc. 1]

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On January 5, 2015, this Court found that the Identity Theft Laws likely are facially
preempted by federal immigration laws regulating the I-9 System. [Doc. 133] It granted a
preliminary injunction prohibiting Defendants from enforcing the provisions of the Identity
Theft Laws that address actions committed with the intent to obtain or continue
employment. [Doc. 133 at 42] Defendants timely appealed. [See, e.g., Doc. 148, 165]
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In compliance with the preliminary injunction, MCAO prosecutors moved to dismiss

pending charges for violations of the Identity Theft Laws in approximately 229 cases.

[CASOF, 2] At least 206 (90%) of those cases involved a victim. [CASOF, 2, 19] The

preliminary injunction divested the dismissed victims of their constitutionally guaranteed

victims rights arising out of the identity theft crimes perpetrated against them.

Constitution, Article art II., 2.1 [CASOF, 3] Per victim testimony, dismissed victims

suffered greatly from employment-related identity theft crimes. They were shocked when the

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Ariz.

preliminary injunction threw them out of state court. They felt vulnerable to re-victimization
by the dismissed offenders who stole their identities, harmed them and then walked away
from state identity theft charges without any consequences. They lost faith in the court
system. [CASOF, 3]
The preliminary injunction order specifically preserved state forgery prosecutions (A.R.S.
13-2002) as being outside the scope of the preliminary injunction. [Doc. 133 at 29] On

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June 18, 2015, Plaintiffs amended their complaint to add an as-applied preemption claim
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arising out of the County Defendants enforcement of the Forgery Law. [Doc. 191, 220]
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B. U.S. Court of Appeals for the Ninth Circuit Proceedings.


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On May 2, 2016, the U.S. Court of Appeals for the Ninth Circuit issued its unanimous

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decision granting Defendants preliminary injunction appeal.

Reviewing MCAO

prosecutions in the record, the Ninth Circuit found that the Identity Theft Laws are not
preempted in all applications. Applying the Salerno standard, the Ninth Circuit concluded
that Puente has not met its burden of showing a clear and manifest purpose to completely
preempt these laws. Puente Arizona, 821 F.3d at 1108. It reversed this Courts holding on
facial preemption, vacated the preliminary injunction and remanded for determination on the
merits as to the remaining claims. Id.

It denied Plaintiffs petition for rehearing/en banc

review. Id., No. 15-15211 (9th Cir. June 9, 2016) at DktEntry 131, 133.
III.

PLAINTIFFS AS-APPLIED PREEMPTION CLAIM FAILS AS A MATTER


OF LAW.
A. Presumption Against Preemption Applies.
Under the Supremacy Clause, federal law is the supreme law of the land, to the

exclusion of state laws to the contrary. U.S. Const. art. VI, cl. 2.

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The purpose of Congress is the ultimate touchstone in every preemption case.

Wyeth v. Levine, 555 U.S. 555, 565 (2009), citing Medtronic, Inc. v. Lohr, 518 U.S, 470,

485 (1996).

legislated in a field which the States have traditionally occupied, [courts] start with the

assumption that the historic police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress. Wyeth, 555 U.S. at

565 (quoting Lohr, 518 U.S. at 485).

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In all preemption cases, and particularly those in which Congress has

The Tenth Amendment to the United States Constitution provides that all powers
not delegated to the United States by the Constitution are reserved to the States. U.S.
Const. amend. X. It is fundamental in our federal structure that States have vast
residual powers. Those powers, unless constrained or displaced by the existence of federal
authority or by proper federal enactments, are often exercised in concurrence with those of
the National Government. United States v. Locke, 529 U.S. 89, 109 (2000). Included

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among those residual powers reserved to the States is the power to define and prosecute
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crimes. Abbate v. United States, 359 U.S. 187, 195 (1959).


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The Identity Theft Laws protect against harms resulting from the offenders use of
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anothers identity on a false/fraudulent document. A.R.S. 13-2001(4), (10) and (12); 132008(A); 13-2009(A)(3). The Ninth Circuit found that the Identity Theft Laws regulate for
the health and safety of the people of Arizona and thus are within the States police powers.
Puente Arizona, 821 F.3d at 1104.

Accordingly, it held that the presumption against

preemption applies to the Identity Theft Laws. Id.

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The Forgery Law also is a traditional state crime regulating for the health and safety of

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the people of Arizona. The Forgery Law protects against harms resulting from the offenders

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making, possession and/or presentment of a false/fraudulent document with intent to defraud.

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A.R.S. 13-2001(3), (5), (6), (7), (8), (9), (12); 13-2002. The Forgery Law therefore also

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enjoys the presumption against preemption. See, e.g., Puente Arizona, 821 F.3d at 1104.

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Montgomery acts pursuant to his constitutional and statutory duties as County

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Attorney when he prosecutes public offenses including the Identity Theft Laws and the

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Forgery Laws. Ariz. Const. art. XII, 3-4; A.R.S. 11-532(A)(1). State v Murphy, 113
Ariz. 416, 418, 555 P.2d 1110, 1112 (Ariz. 1976)(The duty and discretion to conduct
prosecutions for public offenses rests with the county attorney.) Per his Oath of Office, he is
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sworn to uphold and enforce duly enacted state laws. [CASOF, 4]. Montgomerys duties

include protecting victims of such crimes (and help them gain restitution of their damages)

pursuant to Arizona Constitution Art. II, 2.1 and its implementing statutes A.R.S. 13- 603

et seq., 804 et seq. and 4401 et seq. In fulfilling his prosecutorial duties as County Attorney,

Montgomery exercises traditional state police powers to protect the health and safety of the

people of Maricopa County. Ariz. Const. art. XII, 3-4; A.R.S. 11-532(A)(1). [CASOF,

4, 5] The presumption against preemption therefore applies to Montgomerys prosecutions

of violations of the Identity Theft Laws and Forgery Laws.


As discussed below, because Plaintiffs cannot show that it was the clear and manifest

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intent of Congress to preempt the Laws and Montgomerys prosecutions of them, Plaintiffs
Supremacy Clause Claims fail.

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B. Identity Theft Laws and Forgery Laws Are Textually Neutral.

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It is uncontested that the language of the Identity Theft Laws is neutral; they apply to

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unauthorized aliens, 3 authorized aliens, and U.S. citizens alike. Puente Arizona, 821 F.3d at

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1105. A.R.S. 13-2008(A), 13-2009(A)(3). The same is true for the Forgery Law. A.R.S.

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13-2002. Accordingly, as the Ninth Circuit recognized, the preemption rulings of U.S. v.

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Arizona, 132 S. Ct. 2492 (2012) and its progeny are distinguishable due to express

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immigration elements written into the laws contested in those cases. Id. at 1107 (citations

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omitted). 4

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In this Motion, Montgomery uses the following definition adopted by the Ninth Circuit:
unauthorized alien refers to aliens who have entered or are present in the United States in
violation of federal immigration law. Puente Arizona, 821 F.3d at 1101, n.1.

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Plaintiffs reliance on U.S. v. South Carolina, 720 F.3d 518, 520 (4th Cir. 2013) is especially
misplaced because the statute at issue was not South Carolinas identity theft provision,
which closely tracks Arizonas Identity Theft Laws and remains good law. S.C. Code Ann.
16-13-510(C) (criminalizing the use of anothers information for the purpose of obtaining
employment). Plaintiffs ignore cases reviewing true identity theft laws and finding them
constitutional. Hernandez v. State, 639 S.E. 2d 473 (Ga. 2007) (holding that Georgias
employment-specific identity theft statute, which mirrors Arizonas, is not preempted); see
also, e.g., State v. Lopez-Navarrete, 340 P.3d 1235 (Kan. App. 2014).

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The Identity Theft Laws and Forgery Laws do not make determinations regarding who

should or should not be admitted into the country, and the conditions under which a legal

entrant may remain. DeCanas v. Bica, 424 U.S. 351, 355 (1976).

on conduct (use of anothers identity for work; making/possessing/presenting a

false/fraudulent document), not immigration status, immigration documents or immigration

actions. A.R.S. 13-2002; 13-2008(A), 13-2009(A)(3). See State v. Morales, 2009 WL

1605988, * 3 (App. Ariz. June 9, 2009)(discussing the specific elements of state identity theft

and forgery laws.


C. Congress Validates State Enforcement of Identity Theft/Forgery Statutes.

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They focus solely

In enacting the federal identity theft statute, Congress validated state identity theft laws
by incorporating them by express reference. 18 U.S.C. 1028(a)(7) (. . . that constitutes a
felony under any applicable State or local law)(emphasis added). This incorporation shows
Congress intended for Section 1028 to supplement, not supplant, state law. See Casino

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Ventures v. Stewart, 183 F.3d 307, 310-12 (4th Cir. 1999). Congress enacted Section 1028 on

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the premise that [f]ederal legislation alone cannot eradicate identity theft. S. Rep. No. 105-

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274, at 9 (1998).

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governments . . . to complement the Federal role in this area with appropriate preventive and

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enforcement measures. Id.

As a result, [t]he Committee strongly encourage[d] State and local

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Federal immigration removal statutes also incorporate state identity theft/forgery

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enforcement, providing that state convictions of aliens for crimes involving moral turpitude

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constitute predicate offenses for federal removal.

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1127(a)(2)(A)(i).

8 U.S.C. 1182(a)(2)(A)(i),

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Two recent, published Ninth Circuit cases hold that MCAOs convictions of aliens for

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Employment Violations, using the very statutes attacked by Plaintiffs, constitute convictions

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for crimes involving moral turpitude supporting the aliens removal. These convictions

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relied upon evidence of the offenders use of anothers identity on the Form W-4 and Form

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A-4.

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

Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281-82 (9th Cir. 2014) (identity theft

[CASOF, 40] The Ninth Circuits validation of MCAOs prosecution of Employment

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Charges within the framework of federal immigration removal statutes affirms the fact that

Congress did not intend for the latter to preempt the former.

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D. Montgomery Exercises Legitimate State Police Powers In Prosecuting the


Identity Theft Laws and Forgery Laws.

As discussed below, it is Montgomerys policy and practice to prosecute the Identity

Theft Laws and Forgery Law for the purposes of enforcing valid state laws, addressing the

elevated incidence of identity theft/forgery, deterring fraudulent conduct, protecting the

people of Maricopa County, and providing justice for victims. [CASOF, 5] There is no

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evidence showing that it is a policy or practice of Montgomery to prosecute the Laws for the
purpose of affecting the offenders immigration status, i.e., who should or should not be
admitted into the country, and the conditions under which a legal entrant may remain.
DeCanas, 424 U.S. at 355. The evidence is to the contrary.
1. Elevated Incidence of Identity Theft.
Citing Federal Trade Commission (FTC) annual reports, the Ninth Circuit found that

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the Identity Theft Laws address Arizonas persistently high rate of identity theft
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victimization:
[T]hese bills were also aimed at curbing the growing and well-documented
problem of identity theft in Arizona. Between 2006 and 2008, Arizona had the
highest per-capita identity theft rates in the nation, and one-third of all identity
theft complaints in the state involved employment-related fraud.
Puente Arizona, 821 F.3d at 1102, and n. 2.

[See also CASOF, 6, 7]

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Defense expert criminal justice statistician and economist Mark A. Cohen, PhD.

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[CASOF, 6] found that the incidence of identity theft in Arizona and Maricopa County is

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considerably higher than the national rate. Dr. Cohen estimated the rate of identity theft

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victimization in Arizona to be more than twice that of the U.S. [CASOF, 6] He found that,

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annually, there are an estimated 270,000 cases of personal information theft in Arizona and

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170,000 in Maricopa County. [CASOF, 6]

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Dr. Cohen found that, in Arizona, employment-related identity theft was the number

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one type of identity theft complained about in 2006 (39% of complaints), while it was the

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third most common type complained about in 2015 (9% of complaints). [CASOF, 7] Over
this same time period, coinciding with MCAOs Employment Prosecutions, Arizona went
from ranking number one nationally to number 14 nationally in identity theft complaints per
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capita. [CASOF, 7] Dr. Cohen found that the drop in the rate of identity theft complaints

can be attributed to the drop in employment-related complaints in Arizona. [CASOF, 7]

These objective data show that the incidence of employment-related identity theft

victimization in Arizona has been decreasing over the period of Montgomerys enforcement

of the Laws, which is consistent with Montgomerys efforts to address genuine public safety

concerns resulting from identity theft/forgery in employment circumstances. [CASOF, 4,

5, 7]
2. Incidence of
Prosecutions.

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MCAO

Employment-Related

Identity

Theft/Forgery

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Relying upon MCAO case management system data, Dr. Cohen analyzed the

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incidence of law enforcement agency submittals and MCAO prosecutions for employment-

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related violations of the Identity Theft Laws and Forgery Laws (Employment Violations,

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Employment Submittals, Employment Charges or Employment Prosecutions) in 2005

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2015. 5 [CASOF, 8]

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Dr. Cohen found that MCAO filed Employment Charges against approximately 1390

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offenders in 2005 2015 (MCAO Filed Set). [CASOF, 9] He found that MCAO charged

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violations of the Identity Theft Laws and Forgery as to 1,176 (85%) of those offenders.

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[CASOF, 10]

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It is Montgomerys formal written charging policy (Prosecution Policy 1.61) that in

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exercising prosecutorial discretion, prosecutors file all identity theft and forgery charges in

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the same case so as to resolve as many charges as possible without delay. [CASOF, 11]
This policy comports with the state constitutional requirement that justice in all cases shall
be administered openly, and without unnecessary delay. Ariz. Const., art II., 11. Identity
theft and forgery can be committed based on the same transaction or event, but the
offenses have different elements, and thus the offenses are not the same. Morales, 2009 WL
1605988 at * 3. A.R.S. 13-2002, 13-2008(A), 13-2009(A)(3). The Identity Theft Laws

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and Forgery Laws work together to address employment-related fraud in Maricopa County:
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the Identity Theft Laws address harms to the true identity owner resulting from the offenders
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Dr. Cohen analyzed these data for each year 2005 2015. Statistics of annual data are
provided in Tables E-1 E-33 to his Original Declaration. [CASOF, 8]
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use of the stolen identity on a document for employment purposes, and the Forgery Law

addresses harms to employers and other persons relying on the genuineness of a document

used by the offender with intent to defraud. A.R.S. 13-2001(3) - (12); 13-2002; 13-

2008(A); 13-2009(A)(3). When evidence of the offenders conduct satisfies the elements of

both crimes, charging violations of identity theft and forgery in the same case promotes

Montgomerys legitimate state police power interests in prompt resolution of these crimes.

[CASOF, 11]
3. Employment-related Identity Theft/Forgery Is Not A Victimless Crime.

Employment-related identity theft/forgery is not a victimless crime.

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Dr. Cohen

estimated that Arizona residents are about 2.5 times more likely to be identity theft victims
than average in the U.S.

[CASOF, 13] Dr. Cohen found that, with 2% of the U.S.

population and 2.5 times the victimization rate, Arizona is thus estimated to incur
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approximately 5% of the costs of identity theft in the U.S. He found that, based on the $55.9
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to $102.7 billion annual cost of identity theft estimated above, the cost to Arizona would be
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$2.8 to $5.1 billion.


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approximately 3% of the cost nationwide, or between $1.7 and $3.1 billion. [CASOF, 13]

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Similarly, he estimated that the cost in Maricopa County is

Dr. Cohen found that almost half (49%) of MCAOs Employment Prosecutions had
at least one identifiable victim a rate that he found to be statistically significantly higher
than MCAOs other forgery or identity theft cases generally. [CASOF, 14] This high victim
rate objectively demonstrates the genuine need for Montgomerys exercise of state police
power in prosecuting these cases. See also, infra.

21

Dr. Cohen also found that, out of all offenders in MCAO Employment Prosecutions in

22

which there is at least one identifiable victim, 51% of those Prosecutions have at least one

23

Hispanic victim. He found that the likelihood of finding at least one Hispanic victim in

24

MCAOs Employment Prosecutions is more than twice as high as it is for all forgery and

25

identity theft cases. He found these differences to be statistically significant. [CASOF, 15]

26

In addition, Dr. Cohen found that of the subset of 1,248 Illegal Alien 6 offenders in

27

MCAOs Employment Prosecutions, almost half (48%) of the Illegal Alien offenders had

28
6

Dr. Cohen used the terms Illegal Alien and Not Illegal Alien in his Declarations
submitted herewith. He identified these designations through analyses of data maintained in
-10-

Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 14 of 34

at least one victim, of which more than half (52%) had at least one Hispanic victim.

[CASOF, 17] Dr. Cohen found that the victims of Illegal Alien offenders in Employment

Prosecutions were much more likely to be Hispanic than their victims in non-employment-

related forgery and ID theft prosecutions. Once again, he found these differences to be

statistically significant. [CASOF, 17] These findings belie Plaintiffs baseless assertion

that unauthorized alien offenders do not harm anyone when they use other peoples identities

7
8
9
10
11

for work.
Further, the predominance of Hispanic victims in MCAOs Employment Prosecutions
refutes Plaintiffs baseless accusations of anti-Hispanic motivations on the part of
Montgomery. MCAOs Employment Prosecutions are protective of Hispanic victims.
4. Montgomerys Prosecutions Address Serious Victim Harms.

12

Dr. Cohen made numerous detailed findings about the serious harms suffered by identity

13

theft victims, including legal problems such as denial of public benefits, tax enforcement

14

actions, debt collections, lawsuits, and even arrests as a result of being improperly identified

15

by police officers., as well as psychological harm from victimization. [CASOF, 18] In

16

reviewing police submittals and Maricopa County Superior Court filings in MCAOs

17

Employment Prosecutions, Dr. Cohen found that victims in these Prosecutions suffer harms

18

consistent with the foregoing harm types. [CASOF, 20] Victims in MCAOs Employment

19

Prosecutions testify about anxiety, fear, vulnerability, shock, distress and frustration they

20

suffered from employment-related identity theft. [CASOF, 3, 20, 24]

21

Fraudulent federal and state tax withholding forms (W-4 Forms and A-4 Forms) using

22

anothers identity are two of the most frequently charged documents in MCAOs

23

Employment Prosecutions (694 Form W-4s and 626 Form A-4s, respectively). [CASOF,

24

21] MCAO charges on these Forms for legitimate state police power reasons fraudulent tax

25

withholding forms lead to false income reporting which in turn causes victims to be denied

26

food stamps, medical assistance, disability assistance and other forms of public assistance, as

27

well be targeted for back tax demands from government tax authorities. [CASOF, 22] In

28

some cases, entire families were denied food stamps and other public assistance because of
MCAOs case management information system input from police reports, jail reports, ICE
reports and other third party source information. [CASOF, 16]
-11-

Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 15 of 34

the offenders false income reporting. [CASOF, 23] In another case, a mother initially was

unable to obtain state medical benefits for her son who had brain cancer, because the offender

had used her sons identity for work. [CASOF, 23] Plaintiff Estradas victim had to fight a

$7,000 back tax demand and recover $3,500 taken from her account by the Internal Revenue

Service (IRS). [CASOF, 23]

Job applications are another large category of charged documents (268) in MCAOs

Employment Prosecutions. [CASOF, 12, 25] The genuineness of information in job

8
9
10
11
12

applications is important for informed employer decisions whether the applicant meets
business needs and passes background checks before involvement with employees,
customers, business accounts, business information, and other business aspects.
e.g.,

See,

https://www.sba.gov/starting-business/hire-retain-employees/pre-employment-

backgroundchecks; https://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm

[See

13

also, CASOF, 26] Using anothers identity on a job application also impedes victims
14

efforts to clear their names with public assistance agencies and tax authorities. Companies
15

refuse to respond to the victims information requests because they are uncertain who is the
16
17
18
19
20

true owner of the identity. [CASOF, 27] In using her victims name and social security
number on a job application and other documents, Plaintiff Estrada caused these types of
difficulties for her victim. [CASOF, 27, 67]
Other victims are harmed in their business reputations when offenders use the victims
professional/trade licenses to work in a licensed occupation. [CASOF, 28, 29] Young

21

children are frequent targets of identity theft, compromising their true identities for years to

22

come. [CASOF, 30, 31, 32]

23

Dr. Cohen found that victims are more likely to have the opportunity to obtain relief from

24

identity theft/forgery harms through state and local enforcement. [CASOF, 33]

25

compared 223 identity theft offenders prosecuted by federal officials in 2014 in Arizona with

26

an estimated 860,000 identity theft victimizations annually in Arizona and 530,000 annually

27

in Maricopa County. He found that these data show that federal prosecutions alone cannot

28

adequately respond to victim incidence and harm in Arizona. [CASOF, 33] If state

He

prosecutions were to stop, the rate of victim incidence surely would rise to pre-enforcement
levels in Arizona.
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 16 of 34

The FTC 7 recognizes this fact. It directs victims to make complaints to local police, not

1
2

federal investigators.

0119-guide-assisting-id-theft-victims.pdf at 12 - 13, 21 -22 [See also, CASOF, 34] Among

the FTC referrals to state and local law enforcement are employment-related identity theft

complaints. https://www.consumer.ftc.gov/articles/0008-tax-related-identity-theft [See also,

CASOF, 34] The Fair Credit Reporting Act requires evidence of an identity theft victims

local police report as part of credit agency resolution processes. 15 U.S.C. 1681c-2,

8
9

1681m(f), 1681s-2(a)(6).

12

https://www.consumer.ftc.gov/articles/pdf-

The IRS follows the FTCs local police complaint

process. https://www.irs.gov/uac/Taxpayer-Guide-to-Identity-Theft. [CASOF, 35]


Many of MCAOs Employment Prosecutions originate from victim complaints made to

10
11

www.identitytheft.gov;

local police in Maricopa County. [CASOF, 36] Many victims in MCAOs Employment
Prosecutions exercise their state-law guaranteed victims rights. Ariz. Constitution, Art. II,
2.1. [CASOF, 37] Victims testify that, without local police-MCAOs enforcement in their

13

cases, they would not have obtained the documentation needed to clear their identities and
14

begin to recover from the harms of identity theft. [CASOF, 38] Victims also benefit from
15

enforced cessation of use of the victims identities.


16
17
18
19
20

significant concern of victims

dismissed per the preliminary injunction is the offenders walking away from the charges,
so that the victims fear re-victimization at the hands of the dismissed offenders. [CASOF,
38] Evidence of a conviction of identity theft also supports a victims request for restitution,
A.R.S. 13-603, a victims petition for a determination of factual innocence, A.R.S. 12771, and a victims petition for determination of factual improper party, A.R.S. 12-772.

21

As shown, in prosecuting violations of the Identity Theft and Forgery Laws, Montgomery

22

exercises legitimate state police powers in addressing victim harms resulting from these

23

crimes. Montgomery makes responsiveness to victim harms a top priority at MCAO.

24

[CASOF, 4, 5, 39]

25
26
27
28

The FTCs support of state employment-related identity theft enforcement shows that the
FTC itself has interpreted the [Federal Identity Theft] Act as a supplement to, not a
replacement for, state law. See Motor Vehicle Mfrs. Assn of U.S., Inc. v. Abrams, 899 F.2d
1315, 1320 (2nd Cir. 1990) (concluding federal statute and FTC regulations do not preempt a
States Lemon Law).
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 17 of 34

Montgomerys Employment Prosecutions are a necessary and proper exercise of

traditional state police powers to protect the health and safety of the people of Arizona and

Maricopa County. See Puente Arizona, 821 F.3d at 1104.

4
5

E. Plaintiffs Cannot Prove That Congress Manifested Any Intent To Preempt


Montgomerys Employment Prosecutions Not Having A Practical Effect on
the I-9 System or Federal Immigration.

6
7

The Ninth Circuit held that while state purposes are relevant, they are not dispositive

for determination of preemption. Id. at 1106. Rather, the Ninth Circuit ruled, the crucial

question is whether Congress intended to preempt the identity theft laws given the practical

10
11
12
13
14
15
16
17
18
19
20
21
22
23

effect of those laws. We think not. Id. (emphasis added).


In reviewing the practical effect of the Identity Theft Laws, the Ninth Circuit found that
enactment of the Identity Theft Laws failed to cause unauthorized aliens to leave Arizona. Id.
There is no evidence showing that Montgomerys policies and practices caused any state
legislator or the Governor to enact the Laws for any immigration-related purpose.
In contrast, the Laws succeeded in rectifying the growing problem of employmentrelated identity theft in Arizona. Id. The Ninth Circuit held that
Congress could not have intended to preempt the state from sanctioning crimes
that protect citizens of the state under Arizonas traditional police powers
without intruding on federal immigration policy. Thus, we hold that despite the
state legislative history, Congress did not intend to preempt state criminal statutes
like the identity theft laws.
Id. (emphasis added).
1. Montgomerys Employment Prosecutions Turn on Evidence of the
Offenders Conduct in Violation of the Laws, Not the Offenders
Immigration Status.

24
25

The Ninth Circuit made clear that proper evaluation of the practical effect of identity

26

theft enforcement does not turn on the immigration status of the offender. While recognizing

27

that the majority of prosecutions of the Identity Theft Laws charge unauthorized alien

28

offenders, the Ninth Circuit held that


Congress would agree that the identity theft laws validly apply to any person who
uses anothers identity for non-immigration reasons.
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 18 of 34

Id. (emphasis added).

Any person is inclusive of all offenders including unauthorized alien offenders.

When unauthorized aliens commit identity theft and forgery in employment circumstances

not regulated by the I-9 System, those unauthorized aliens can be constitutionally prosecuted

under the Identity Theft Laws same as any citizen or permanent resident alien. See Puente

Arizona, 821 F.3d at 1106. Dr. Cohen found that MCAO filed Employment Charges against

both Illegal Alien offenders and Not Illegal Alien offenders. [CASOF, 41] The Ninth

8
9
10
11
12

Circuit recognized this charging practice as well. Id. at 1102. Maricopa County Superior
Court filings in MCAOs Employment Prosecutions support these findings. [CASOF, 41]
As a matter of policy and practice, MCAO prosecutors charge violations of the Identity
Theft Laws and Forgery Laws based on evidence of the offenders conduct, not his/her
immigration status.
Whether charges can be filed by MCAO is dependent upon whether submittals are made

13

by law enforcement. Without a submittal, there can be no filed charge. [CASOF, 42]
14

Approximately 23 separate and independent law enforcement agencies across Maricopa


15

County submitted proposed Employment Charges. [CASOF, 44] Dr. Cohen found that law
16
17
18
19
20

enforcement agencies submitted a total of 1,359 offenders on proposed Employment Charges


in 2005 2015 (LEA Submittal Set). [CASOF, 45] Dr. Cohen found that 90% of the
submitted offenders overall are identified as Illegal Aliens. [CASOF, 45]
The County Attorneys powers and duties do not include control over law enforcement
agencies investigations, submittals, policies or practices. Ariz. Const. art. XII, 3-4; A.R.S.

21

11-531 et seq. See, e.g., A.R.S. 11-441(A)(2)(Sheriffs powers and duties include arrest

22

of all persons who attempt to commit or who have committed a public offense). [CASOF,

23

43] Nor do the policies and practices of law enforcement agencies control MCAOs

24

prosecutorial decisions. [CASOF, 43] There is no evidence showing that Montgomerys

25

policies and practices were the moving force behind these 23 law enforcement agencies

26

investigations and submittals of Employment Charges. Monell, 436 U.S. at 694. Nor is there

27

evidence showing that these 23 law enforcement agencies as a matter of their own policies

28

and practices submitted these charges without probable cause.


Whether charges are filed by MCAO is dependent upon satisfaction of Montgomerys
written charging standard (Prosecution Policy 1.3):
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 19 of 34

Prior to filing criminal charges, charging attorneys must make a determination based
on legally admissible evidence presented to them that there is a reasonable likelihood
of conviction for the offense charged.

[CASOF, 46] See, e.g., Murphy, 113 Ariz. at 418, 555 P.2d at 1112 (recognizing role of

prosecutorial discretion). This charging standard regulates all MCAO prosecutors in all

Bureaus in all Divisions, including prosecutors in the Special Crimes Bureau and Fraud and

Identity Theft (FITE) Bureau who prosecute Employment Violations. [CASOF, 46]

Pursuant to these charging policies, MCAO prosecutorial charging decisions turn on the

evidence presented by the submittal proving the offenders conduct satisfies the elements of

9
10
11
12
13
14

the offense being charged. [CASOF, 47] MCAO prosecutors are directed that prosecutorial
decisions are not made for the purpose of affecting an offenders immigration status.
[CASOF, 49]
Montgomerys written charging policy for identity theft/forgery (Prosecution Policy 1.61)
focuses on the increasing problem of these crimes in our community, directs prosecutors to
charge these crimes when the evidence meets the offices charging standard, instructs
prosecutors to file on all charges that meet the office charging standard, provides guidance

15

on charging statutory subdivisions, and charging in a manner protective of victims. [CASOF,


16

48] Prosecution Policy 1.61 applies to prosecutorial charging decisions as to all identity
17

theft and forgery crimes, including Employment Violations. [CASOF, 48] It does not
18
19
20
21
22

mention the immigration status of the offender. [CASOF, 48]


An offenders immigration status is not an element under the Identity Theft Laws or the
Forgery Law. ARS 13-2002, A.R.S. 13-2008(A), 13-2009(A)(3). [CASOF, 50]
Therefore, per policy, MCAO prosecutors do not consider an individuals legal status in the
United States in deciding whether to charge Employment Violations. [CASOF, 47, 50] If

23

the charging standard is met, and exercising prosecutorial discretion, MCAO prosecutors file

24

Employment Charges regardless of the immigration status of the offender. [CASOF, 50]

25

MCAO Bureau Chiefs for Special Crimes and FITE testify that, as part of their

26

supervisorial duties, they have supervised and confirmed their Bureaus prosecutors

27

compliance with the above-described policies in prosecuting Employment Violations.

28

[CASOF, 51]

There is no evidence showing that MCAO prosecutors disregard

Montgomerys charging policies in Employment Prosecutions.

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 20 of 34

Objective prosecution data moreover show that MCAO prosecutors charge Employment

Violations similarly regardless of the offenders immigration status, and they charge

unauthorized alien offenders for Employment Violations at similar rates as the Grand Jury

and federal prosecutors. [CASOF, 52, 53, 55, 56]

unauthorized aliens in a disparate manner.

There is no proof that MCAO charged

Dr. Cohen conducted comparative analyses of the MCAO charging data between Illegal

Alien offenders and Not Illegal Alien offenders in the MCAO Filed Set in 2005 - 2015.

8
9
10
11
12
13

[CASOF, 55, 56] Dr. Cohen found that MCAO prosecutors declined to file Employment
Charges at similar rates as between Illegal Alien offenders (8% overall) and Not Illegal Alien
offenders (9% overall). He found that these rates are statistically indistinguishable. [CASOF,
55] He found that MCAO prosecutors added a forgery charge to an employment-related
identity theft charge at filing at similar rates as between Illegal Alien offenders (57% overall)
and Not Illegal Alien offenders (67% overall). [CASOF, 56] He testified that these
comparative analyses data show that MCAO prosecutors charge offenders consistently no

14

matter their immigration status. [CASOF, 57] Dr. Cohens comparative charging analyses
15

are uncontroverted.
16
17
18
19
20
21

Dr. Cohen also found that the Illegal Alien offender rate is almost identical as between
MCAOs filed charges and Grand Jury indictments for Employment Violations: MCAO 90%
overall and Grand Jury 89% overall. [CASOF, 52] These findings are undisputed.
In addition, Dr. Cohen found that the Illegal Alien prosecution rate is similar as between
MCAO Employment Prosecutions (90%) and federal prosecutions for violations of the
federal identity theft statute (86.6% 99% in 2005, 2009, 2014) in Arizona. [CASOF, 53]

22

He found that federal offenders of identity theft in Arizona are much more likely to be Illegal

23

Aliens compared to such offenders nationwide. [CASOF, 53] He testified that the federal

24

set of identity theft offenders in Arizona and the MCAO set of offenders for employment-

25

related violations of state identity theft/forgery crimes are similarly situated sets and provide a

26

fair comparison. [CASOF, 53] In comparing federally charged offenders in Arizona to

27

state charged offenders in Arizona, he testified that the federal identity theft law is inclusive

28

of employment-related identity theft. [CASOF, 53]. He found that the rate of unauthorized
aliens charged by federal prosecutors and MCAO prosecutors is consistent with the
demographics of Arizona, which had the fifth largest per capita population of Illegal Aliens in
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 21 of 34

2010. [CASOF, 53] He found that his comparison between federally charged offenders of

identity theft (18 U.S.C. 1028) in Arizona and MCAO charged offenders for violations of

the Identity Theft Laws and Forgery Law shows that MCAOs prosecutions are not

disproportionately impacting Illegal Aliens. [CASOF, 53]

There is no evidence proving that Montgomerys policies and practices are the moving

force causing the Grand Jury and federal prosecutors to charge identity theft violations

against unauthorized alien offenders at 90% (and higher) rates.

8
9
10
11
12
13

The similarities in

unauthorized alien prosecution rates demonstrated by Dr. Cohens MCAO/Grand Jury/federal


prosecutor analyses, coupled with the similarities in charging decisions across offender
populations established by Dr. Cohens comparative charging analyses, refutes Plaintiffs
unfounded allegations of anti-unauthorized alien charging practices on the part of MCAO.
Plaintiffs have no evidence of disparate impact. There is no evidence proving that the rate
of unauthorized alien offenders charged with violations of the Laws is disproportionate to the
number of unauthorized aliens violating the Laws in Maricopa County. Plaintiffs statistician

14

testified that in using the term disproportionate in her report, she means a category that is
15

numerically greater than another category.


16
17
18
19
20

[CASOF, 54] She testified that

disproportionate in her report is not meant to argue that Defendants rate of arrests or
prosecutions of unauthorized alien (or Hispanic) offenders for violating the Laws is
disproportionate to the rate of unauthorized alien (or Hispanic) offenders violating the Laws.
[CASOF, 54] She testified that she did not make any such comparison and does not know
of any facts or data available to make any such comparison. [CASOF, 54] She did not have

21

access to any facts and she does not have any opinion that the race or immigration status of an

22

offender motivated arrests or prosecutions for violations of the Identity Theft Laws.

23

[CASOF, 54]

24

unauthorized alien prosecution rate analyses, supra. They do not prove disparate charging

25

practices. She also testified that she does not have any evidence or opinion that the race or

26

immigration status of an offender motivated arrests or prosecutions for violations of the

27

Identity Theft Laws. [CASOF, 54]

28

Her numerically greater than findings are consistent with Dr. Cohens

As demonstrated, as a matter of policy and practice, and exercising prosecutorial


discretion, MCAO prosecutors charge Employment Violations based on evidence of the
offenders conduct, not his/her immigration status.
-18-

Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 22 of 34

1
2
3
4
5
6
7
8
9

...
2. Montgomerys Non-Preempted
Judgment for Montgomery.

Applications

Require

Summary

Per the Ninth Circuits ruling, in deciding the merits of Plaintiffs preemption claims, the
crucial question [for this Court] is whether Congress intended to preempt the identity theft
laws given the practical effect of those laws. See Puente Arizona, 821 F.3d at 1106
(emphasis added). The undisputed facts show that Montgomerys Employment Prosecutions
do not have a practical effect on the I-9 System or federal immigration.
i. The Limited Regulatory Reach of the I-9 System.
Plaintiffs admit that the federal verification process that is the subject of their

10

preemption claim is defined by 8 U.S.C. 1324a and 8 C.F.R. 274a.2, i.e., the I-9
11

Requirements. [CASOF, 58] The I-9 Requirements regulate:


12
13
14
15
16

(1) An employer who is a person or entity who engages the services or labor of an
employee to be performed in the U.S. for wages or other remuneration. 8 C.F.R.
274a.1(g).
(2) An employee who is an individual who provides services or labor for an employer
for wages or other remuneration but does not mean an independent contractor or those
engaged in casual domestic employment. 8 C.F.R. 274a.1(f).

17
18

(3) Employment which means any service or labor performed by an employee for an
employer within the United States. 8 C.F.R. 274a.1(h).

19
20
21
22
23
24
25
26
27

(4) Hiring which means the actual commencement of employment of an employee for
wages or other remuneration. 8 C.F.R. 274a.1(c).
(5) In the context of hiring or continuing employment, the employee must present
to the employer those certain documents particularly identified in 8 U.S.C.
1324a(b)(1) and/or 8 C.F.R. 274a.2(b)(v) to establish the employees identity and
employment authorization in compliance with 8 U.S.C. 1324a and 8 C.F.R. 274a.2,
and he/she must complete and verify the Form I-9, 8 U.S.C. 1324a(b)(1) and (2) and
8 C.F.R. 274a.2(a)(2).
8 U.S.C. 1324a; 8 C.F.R. 274a.1 and 274a.2.

The regulatory reach of the I-9

Requirements therefore is limited to specific persons (employees) within a specific


situation (hiring or continuing employment) who are presenting specific documents

28

(those documents particularly identified in 8 C.F.R. 274a.2(b)(v)) for the specific purpose

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 23 of 34

of establishing identity and work authorization to complete a specific federal form (the Form

I-9).

The Ninth Circuit made clear that IRCAs Form I-9 Document Use Limitation, 8 U.S.C.

1324a(b)(5), d(2)(F))-(G), does not preempt every application of the Identity Theft Laws.

The Ninth Circuit found that this Limitation is only violated when the identity theft laws are

applied in ways that rely on the Form I-9 and attached documents. See Puente Arizona,

821 F.3d at 1108 (emphasis added). IRCAs legislative history supports this finding. H.R.

8
9

Rep. No. 99-682(I), at 61 (1986) (The bill specifically prohibits the use of attestation forms
for purposes unrelated to the enforcement of this legislation . . . . (emphasis added)).
18 U.S.C. 1546(a) regulates an offenders use of a false/fraudulent document as

10
11
12

evidence of authorized employment in the United States, i.e. for purposes of the I-9
Requirements. 18 U.S.C. 1546(b) regulates use of false/fraudulent identification document
for the purpose of satisfying a requirement of section 274A(b) of the Immigration and

13

Nationality Act, i.e., the I-9 Requirements. 18 U.S.C. 1001 regulates false statements and
14

false documents within federal jurisdiction, i.e., the I-9 Requirements/Form I-9. 8 U.S.C.
15

1324c regulates use of fraudulent documents to satisfy any requirement of this chapter or to
16

obtain a benefit under this chapter, i.e., the I-9 Requirements. 8

17
18
19
20

The limited scope of these federal immigration fraud statutes, combined with the
validation of state identity theft and forgery laws in the federal identity theft statute and
federal removal statues, shows that Congress intended that federal and state authority be
exercised in concurrence to address employment fraud.

Locke, 529 U.S. at 109.

21

Congress did not intend to preserve only those state laws that would have no effect.

22

Whiting, 131 S. Ct. at 1985. Montgomerys Employment Prosecutions have the predictable

23
24
25
26
27
28

Section 1324c does not preclude criminal prosecution under a statute other than IRCA.
Noriega-Perez v. United States, 179 F.3d 1166 (9th Cir. 1999). In Noriega-Perez, the
defendant was first convicted of conspiracy to commit document fraud under 18 U.S.C.
371. Id. at 1171. Subsequently, his civil penalty was assessed for document fraud under
Section 1324c, not conspiracy to commit document fraud. Id. This Court affirmed that
penalty, reasoning that civil and criminal penalties for distinct crimes surrounding the same
conduct were permissible. Id. In the same way, there is no conflict between civil penalties
under Section 1324c and criminal identity theft under the Identity Theft Laws, particularly in
view of Section 1324cs textual limitation to the federal immigration process and
Congressionial authorization of use of state ID Theft laws in 18 U.S.C. 1028(a)(7).

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 24 of 34

effect of punishing identity theft and forgery. In preserving a role for such prosecutions,

Congress has accepted that they will lead to concurrent prosecutions. As the Ninth Circuit

recognizes, the federal immigration fraud statutes do not establish clear Congressional intent

to preempt state enforcement against an offenders use of anothers identity in all

employment circumstances. See Puente Arizona, 821 F.3d at 1107 - 1108. Mere tension

between federal and state fraud schemes is not sufficient to establish preemption. Id. at 1105.
IRCAs Form I-9 Document Use Limitation and federal immigration fraud statutes show

7
8
9
10
11
12

an intent to preempt state enforcement against an offenders use of anothers identity to


complete a Form I-9 per the I-9 Requirements nothing more. For example, while an
offenders use of another persons state drivers license to complete the Form I-9 may
fall within the I-9 Requirements, the offenders use of the same state drivers license to
complete a job application or tax withholding form falls outside the I-9 Requirements. State
identity theft/forgery enforcement in the latter circumstances does not have a practical

13

effect on federal regulation of the I-9 System.


14

ii. Montgomerys Employment Prosecutions Do Not Have A


Practical Effect on the I-9 System.

15
16
17

Plaintiffs as-applied preemption claims fail. Montgomerys Employment Prosecutions

18

are not preempted when they rely on evidence of a persons use of anothers identity for

19

employment purposes not regulated by the I-9 Requirements.


a. Montgomerys Employment Prosecutions Relying on NonForm I-9 Evidence Are Not Preempted.

20
21

In approximately 90% of MCAOs Employment Prosecutions, MCAO relied on

22
23

evidence of the offenders use of anothers identity on documents other than the Form I9 (Non-Form I-9 Cases).

24
25

Dr. Cohen calculated this finding based upon evidence relied

upon in direct complaints 9 and Grand Jury indictments filed in Maricopa County Superior
Court in the MCAO Filed Set. [CASOF, 59] Dr. Cohens uncontroverted 10 statistical

26
9

27
28

The abbreviation DCs in Figure 3 refers to the direct complaints in MCAOs Filed Set.

10

Plaintiffs statistician testified that, while she had access to publicly available court
documents in MCAOs Employment Prosecutions, she did not review any such documents
for any purpose. [CASOF, 63] She testified that her findings on trends in submittals and
filings do not attempt to address what evidence was relied upon for submitting and filing
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 25 of 34

analyses of these charging documents, along with numerous examples of submitted

documents relied upon as evidence for charging purposes, plus Montgomerys and

supervisory prosecutors testimony about MCAO charging policies and practices, establish

that it is the policy and practice of Montgomery not to prosecute the Laws on evidence of

an offenders use of anothers identity in I-9 circumstances. [CASOF, 46 51, 59, 60,

61, 62]
Dr. Cohen found that MCAO relied upon the following non-Form I-9 documents in

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charging Employment Violations in direct complaints: 694 (54%) Form W-4s, 626 (49%)
Form A-4s, 268 (21%) job applications, 264 (20%) Social Security cards, 181 (14%) State
identification cards/drivers licenses, 11 (1%) federal tax reporting Form W-2s, and 308
(24%) other non-Form I-9 documents. 11 [CASOF, 60] He made similar findings as to nonForm I-9 Documents charged in Grand Jury indictments for Employment Violations.

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[CASOF, 61] Examples of other charged documents include background check forms,
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payroll forms, credit check forms, and direct deposit forms. [CASOF, 62]
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State and federal tax withholding forms (Form A-4, Form W-4) are required by state
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and federal tax laws, not immigration law. 26 U.S.C. 3402, 6109, 6051; A.R.S. 43-401
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et seq. State drivers licenses and state non-operating identification licenses are regulated by
state transportation laws, not immigration law. A.R.S. 28-3001 et seq. Social security
cards are regulated by federal social security laws, not immigration law. 42 U.S.C. ch. 7 et
seq.

Job applications are required by the employer, not immigration law. In answering

Requests for Admission, Plaintiffs admit that Form A-4s, Form W-4s, job applications,

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criminal background forms, employer policy documents, employee benefits forms, employee

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badges, bank direct deposit forms, drug testing forms, and state food handler forms charged

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by MCAO are not regulated by the I-9 Requirements. [CASOF, 64; See also CASOF,

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65, 68] Plaintiff Cervantes completed the Form W-4 and Form A-4 using a social security

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number not her own. [CASOF, 66] Plaintiff Estrada completed a job application, Form W-

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those cases. [CASOF, 63] She did not make any findings suggesting any inaccuracies in Dr.
Cohens analyses of these charging documents.
Dr. Cohen found that these numbers add up to more than 100%, because direct complaints
often charged multiple documents. [CASOF, 60]
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 26 of 34

4 and Form A-4 using anothers name and social security number. [CASOF, 67] Both pled

guilty to aggravated identity theft in state court. [CASOF, 66, 67]

MCAO prosecutors reliance on a state drivers license/state non-operating

identification license or a social security card does not automate any finding of intrusion on

the I-9 System.

operating identification licenses and social security cards to complete job applications, tax

forms, health forms, criminal background checks, security forms, payroll deposit forms, and

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Employees use anothers identity on state drivers licenses/state non-

other employment documents wholly outside the I-9 System. [CASOF, 69] Montgomery
furthermore is exercising valid state police powers in prosecuting fraudulent use of stateissued licenses.

A.R.S. 28-3001 et seq.

Non-Form I-9 Cases do not have a practical effect on the I-9 System. They rely on
evidence of the offenders use of anothers identity in violation of the Identity Theft Laws and
Forgery Laws in employment circumstances not regulated by the I-9 Requirements or federal

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immigration. Accordingly, Non-Form I-9 Cases are not preempted.


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b. Montgomerys Formal Written Policy Prohibiting I-9


Charging.
Dr. Cohen found that, in approximately 0.5% of cases, MCAO charged only the Form
I-9 (Form I-9 Only Cases). [CASOF, 73] Dr. Cohen found that approximately 9.5% of

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MCAOs Employment Prosecutions relied on evidence of the offenders use of anothers

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identity on Non-Form I-9 documents (i.e., Form W-4, Form A-4, Job Application) and the

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Form I -9 (Combination Cases). [CASOF, 71]

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Non-Form I-9 evidence in Combination Cases is independently admissible and

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supports lawful state prosecution of identity theft/forgery offenders even assuming the Form

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I-9 evidence is suppressible. See, e.g., State v. Ochoa-Lara, 362 P.3d 606, 610-11 (Kan. App.

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2015; State v. Reynua, 807 N.W.2d 473, 479-82 (Minn. App. 2011), revd in irrelevant part

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by Minnesota v. Reynua, 2012 WL 3023328 (Minn. 2012). For example, Section 13-

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2009(A)(3) charges against Plaintiff Cervantes were supported by admissible evidence of her

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use of a false identity on the Form A-4 and Form W-4, notwithstanding other evidence of her

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use of a false identity on a Form I-9. [CASOF, 72]


There is no evidence showing that Montgomery ever directed MCAO prosecutors to
charge Employment Violations relying on evidence of the Form I-9. The low percentage of
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 27 of 34

cases charging the Form I-9 (9.5% for Combination Case, and 0.5% for Form I-9 Only Cases)

objectively demonstrates that I-9 charging was not a persistent and widespread practice at

MCAO.

966 (2008)(identifying ways to show a policy for Monell); Trevino v. Gates, 99 F.3d 911, 918

(9th Cir. 1996)(Monell claim failed where plaintiff did not show practice of sufficient

duration, frequency and consistency that the conduct has become a traditional method of

carrying out policy). Plaintiffs official capacity claim cannot be proven by respondeat

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9
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superior theories arising out of errant I-9 charging of MCAO line prosecutors. Monell, 436
U.S. at 691. In sum, the relatively few instances of I-9 charging do not rise to the level of
actionable policy under Monell, 436 U.S. at 692.
Moreover, Montgomery formally revised his written identity theft/forgery prosecution

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12

Monell, 436 U.S. at 692; Villegas v. Gilroy Garlic Festival Assn, 541 F.3d 950,

policy (Prosecution Policy 1.61) to expressly prohibit prosecutorial reliance on the Form I-9
as admissible evidence to charge a case or for trial. Montgomerys I-9 charging prohibition

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was formally established on September 17, 2014, almost two years ago and before entry of
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the preliminary injunction. [CASOF, 74]


15

In compliance with the I-9 charging prohibition, MCAO prosecutors obtained


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dismissals of Form I-9 charges in then-pending identity theft/forgery cases. [CASOF, 75]
76. Direct complaints filed in Maricopa County Superior Court charging employment-related
forgery in 2015 and 2016 show no Form I-9 charges. [CASOF, 76] MCAO prosecutors are
complying with Montgomerys I-9 charging prohibition.

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A federal court declaratory judgment on I-9 charging is not necessary. The IRCA Form

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I-9 Document Use Limitation prohibits reliance on evidence of the Form I-9. 8 U.S.C.

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1324a(b)(5), 1324a(d)(2)(F), (G). Montgomery does not dispute this Limitation. Because

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there is no actual controversy over the IRCA Form I-9 Document Use Limitation, Plaintiffs

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cannot establish the prerequisite to declaratory relief. 28 U.S.C. 2201. A federal injunction

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on I-9 charging is not appropriate because I-9 charging does not amount to an actionable

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policy or practice, I-9 charging is prohibited per Montgomerys formal policy, I-9 charging

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ceased years ago per that policy, and any errant I-9 charging by MCAO line prosecutors

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would be subject to a motion to dismiss the charge/suppress the evidence in state court.
...

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 28 of 34

c. Additional Non-Preempted Applications Outside the I-9


System.

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Additional non-preempted applications without practical effect on the I-9 System


include:

(a) MCAO Employment Prosecutions against offenders who are not employees being

hired or employed by an employer under the I-9 Requirements. For example, MCAO

prosecutes Employment Charges when offenders use anothers identity to misrepresent

themselves as licensed contractors or licensed professionals. [CASOF, 77] These offenders

are not employees nor are they in a hiring or employment situation in which they are

completing a Form I-9. 8 C.F.R. 274a.1(c), (g) (h), 274.2a.2; 8 U.S.C. 1324a(b).

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Further, they are committing crimes to evade licensing requirements, not the I-9

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Requirements.

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(b) MCAOs Employment Prosecutions against offenders who use anothers identity to

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hide their criminal history from the prospective employer. Prosecution of these offenders

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does not have a practical effect on the I-9 System; they are committing crimes to evade

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their felony history, not the I-9 Requirements. Puente Arizona, 821 F.3d at 1105. [CASOF,

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78] These are obvious constitutional applications of the Laws. Puente Arizona, 821 F.3d at

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1104 - 1105.

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(c) MCAOs Employment Prosecutions against offenders who use anothers identity to
evade security at critical infrastructure such as Sky Harbor Airport and/or other secure
facilities. Prosecution of these offenders does not have a practical effect on the I-9 System;
they are committing crimes to evade security clearance requirements, not the I-9 System. For
example, MCAO prosecuted an offender for using anothers identity to attempt to work in a
secure area at Sky Harbor Airport. [CASOF, 79]
(d)

MCAOs Employment Prosecutions relying on evidence of the offenders use of

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anothers identity for non-Form I-9 reasons where the underlying police investigation
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originates from traffic stops, traffic accidents, drug screenings, thefts, shoplifting, and other
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common law enforcement concerns (Non-Worksite Cases). [CASOF, 80] Non-Worksite


Cases are the majority (56%) of MCAOs Employment Prosecutions. [CASOF, 81] NonWorksite Cases were submitted by almost every law enforcement agency in Maricopa County

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 29 of 34

including Phoenix Police (199), ADOT (79), Scottsdale Police (78), Mesa Police (76),

Chandler Police (67) and MCSO (46). [CASOF, 81]

Non-Worksite Cases have no causal relationship to Sheriff Arpaios

worksite

investigations which Plaintiffs vilify in their court filings and press releases. The majority

(93%) of Non-Worksite Cases are submitted by law enforcement agencies other than MCSO.

[CASOF, 81] There is no evidence that Non-Worksite investigations by non-MCSO law

enforcement agencies are controlled by the policies and practices of Sheriff Arpaio. Non-

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Worksite investigations moreover are initiated by victim complaints, traffic stops, traffic
accidents, drug screenings, thefts, shoplifting, and other traditional state police power
concerns not linked to immigration. [CASOF, 80] Dr. Cohen found that approximately
75% of Non-Worksite Cases have at least one identifiable victim;
demonstrates

this finding further

the legitimate need for Montgomerys exercise of state police power in

prosecuting these Cases. [CASOF, 82] Like the overall MCAO Filed Set, the majority of
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Non-Worksite Cases (approximately 99%) do not rely solely on the Form I-9. [CASOF, 81]
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Because they start outside the I-9 System and they stay outside the I-9 System, Non-Worksite
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Cases do not have a practical effect on the I-9 System.


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(e)

MCSOs worksite investigations generally originated from tips/leads about

unauthorized hiring practices at a worksite. [CASOF, 83] The Supreme Court ruled that
Arizonas employer sanctions law (A.R.S. 23-211 et seq.) is not preempted. Chamber of
Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011).

Accordingly, MCSOs

worksite investigations into possible violations of the employer sanctions law also are not

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preempted. There is no evidence that, as a matter of policy or practice, MCSO submitted

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identity theft/forgery charges from worksite investigations without probable cause.

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In deciding whether to charge Employment Violations against offenders submitted on

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evidence from MCSOs worksite investigations, MCAO prosecutors applied the same

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charging standard as Non-Worksite Cases: they made a prosecutorial determination based on

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the legally admissible evidence presented to them whether there was a reasonable likelihood

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of conviction for the offense being charged per statutory elements.

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Montgomery does not control Sheriff Arpaios policies and practices, including those

[CASOF, 83]

pertaining to worksite investigations. Ariz. Const. art. XII, 3-4; A.R.S. 11-531 et
seq. See, e.g., A.R.S. 11-441(A)(2)(Sheriffs powers and duties include arrest of all
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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 30 of 34

persons who attempt to commit or who have committed a public offense). [CASOF, 43,

84] There is no evidence showing that MCAO shared state Legal Arizona Workers Act

grant monies with Arpaio after approximately July 1, 2010, almost six years ago. There is no

evidence showing that MCAO prosecutors regularly met with MCSOs Criminal

Employment Squad to work-up pre-investigation worksite tips/leads after that same time

frame. Montgomery is not liable for any alleged intrusion upon the I-9 System caused by

Arpaios policies and practices in conducting worksite investigations. Monell, 436 U.S. at

691 - 694.
Sheriff Arpaio voluntarily stopped worksite investigations in December 2014 and he

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entered into a settlement agreement in federal court disallowing his unilateral


recommencement of worksite investigations in 2015.

[CASOF, 85]

Non-existent

worksite applications of the Laws have no practical effect on federal immigration.


F. Plaintiffs As-Applied Supremacy Clause Claim Fails.

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Montgomerys prosecutions of the Identity Theft Laws and Forgery Laws are necessary to
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protect the health and safety of the people of Maricopa County. Montgomery has a legitimate
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state police power interest in protecting against and responding to harms from an offenders
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use of anothers identity such as harms to the true owners of identities, who are innocent
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victims impacted in almost 50% of MCAOs cases. He has a legitimate state police power
interest in prosecuting violations of the Laws upon evidence of the offenders use of anothers
identity in circumstances not regulated by the I-9 Requirements and I-9 System.

Such

prosecutions are the vast majority of MCAOs cases. Supra.

21

Plaintiffs cannot prove that Congress manifested any intent to preempt MCAOs

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prosecutions of the Laws without a practical effect on the I-9 System or federal immigration.

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See Puente Arizona, 821 F.3d at 1105 - 1108. Montgomerys non-preempted applications of

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the Identity Theft Laws and Forgery Laws require summary judgment in his favor on

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Plaintiffs As-Applied Supremacy Clause Claim as a matter of law.

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IV.

MONTGOMERY IS ENTITLED TO SUMMARY JUDGMENT ON


PLAINTIFFS FACIAL SUPREMACY CLAUSE CLAIM AND FACIAL
EQUAL PROTECTION CLAUSE CLAIM AS A MATTER OF LAW.

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 31 of 34

There is no evidence that Mr. Montgomerys official policies and practices were the

moving force behind the States enactment of the Identity Theft Laws.

Legislature and Governor enacted the Identity Theft Laws, not Montgomery. The Laws

reflect the policies and practices of the State Legislature and Governor, not Montgomery.

There is no basis in fact or law for any contention that Montgomery or his predecessors in

Office legislated these Laws. Because there is no evidence proving any causal relationship

between enactment of the Laws and the policies and practices of Montgomery, Plaintiffs

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The State

Facial Supremacy Clause and Equal Protection Clause Claims against Montgomery fail as a
matter of law. Monell, 436 U.S. at 694.
In addition, Montgomery expressly joins and incorporates by reference as though fully set
forth herein the facts, law and arguments set forth in the Motion for Summary Judgment filed
by Defendant State of Arizona on Plaintiffs Facial Supremacy Clause Claim and Facial
Equal Protection Clause Claim (States Summary Judgment Motion). For all of the reasons
set forth in the States Summary Judgment Motion, Montgomery is entitled to summary

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judgment on Plaintiffs Facial Supremacy Clause Claim and Facial Equal Protection Clause
15

Claim.
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V. CONCLUSION.
There is no genuine issue of material fact. Montgomery is entitled to summary judgment
in his favor on each and every claim and request for relief asserted by Plaintiffs: As-Applied
Supremacy Clause Claim [Doc. 191, 220]; Facial Supremacy Clause Claim [Doc. 191,
218, 219]; Facial Equal Protection Clause Claim [Doc. 191, 225]; and Requests for
Declaratory Relief, Injunctive Relief, and Attorneys Fees and Costs [Doc. 191, 226].
RESPECTFULLY SUBMITTED this 1 day of July, 2016.

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WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY

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BY: /s/Ann Thompson Uglietta


ANN THOMPSON UGLIETTA, ESQ.
J. KENNETH MANGUM, ESQ.
Attorneys for Defendants
Maricopa County and
Maricopa County Attorney Montgomery

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 32 of 34

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CERTIFICATE OF SERVICE
I hereby certify that on July 1, 2016, I caused the foregoing document to
be electronically transmitted to the Clerks Office using the CM/ECF System for filing
and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Honorable David G. Campbell


United States District Court
401 West Washington Street, SPC 58
Phoenix, AZ 85003-2158

Anne Lai
Sameer Ashar
University of California, Irvine School
Of Law Immigrant Rights Clinic
401E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
sashar@law.uci.edu
alai@law.uci.edu
Attorneys for Plaintiffs
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 North 7th Street, Suite 235
Phoenix, AZ 85014
dpochoda@acluaz.org
Attorneys for Plaintiffs
Jessica Karp Bansal
National Day Labor Organizing Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
jbansal@ndlon.org
Attorneys for Plaintiffs

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Jessica Myers Vosburgh


National Day Laborer Organizing Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
jvosburgh@ndlon.org
Attorneys for Plaintiffs

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 33 of 34

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3
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Ray A. Ybarra Maldonado


Law Office of Ray A. Ybarra Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
rybarra@stanfordalumni.org
Attorneys for Plaintiffs

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Hector J. Diaz
Sarah R. Anchors
Edward J. Hermes
Jose A. Carillo
Quarles & Brady LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
hector.diaz@quarles.com
sarah.anchors@quarles.com
edward.hermes@quarles.com
jose.carrillo@quarles.com
Attorneys for Plaintiffs

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Cindy Pnuco
Dan Stormer
Joshua Piovia-Scott
Hadsell Stormer & Renick LLP
128 N Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
cpanuco@hadsellstormer.com
dstormer@hadsellstormer.com
jscott@hadsellstormer.com
Attorneys for Plaintiffs

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Nicholas Espiritu
National Immigration Law Center
3435 Wilshire Blvd. Suite 2850
Los Angeles, CA 90010
espiritu@nilc.org
Attorneys for Plaintiffs

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Case 2:14-cv-01356-DGC Document 534 Filed 07/05/16 Page 34 of 34

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Michele Marie Iafrate


Iafrate & Associates
649 N 2nd Ave.
Phoenix, AZ 85003
miafrate@iafratelaw.com
Attorney for Sheriff Joseph Arpaio

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Brock Jason Heathcotte


Keith Joseph Miller
Office of the Attorney General
Civil Division
1275 W Washington St.
Phoenix, AZ 85007
brock.heathcotte@azag.gov
keith.miller@azag.gov
Attorney for the State of Arizona

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/s/ G. Naranjo
S:\CIVIL\CIV\Matters\GN\2014\Puente AZ v Arpaio GN14-324\08 PLEADINGS\ATTORNEY WP MSJ DRAFTS\MSJ MONTGOMERY
070116 FINAL PM.docx

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-31-

Puente Arizona et al v. Arpaio et al, Docket No. 2:14-cv-01356 (D. Ariz. Jun 18, 2014), Court Docket

General Information

Court

United States District Court for the District of Arizona; United


States District Court for the District of Arizona

Federal Nature of Suit

Constitutionality of State Statutes[950]

Docket Number

2:14-cv-01356

2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 35

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