1
2
3
4
5
6
7
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
8
9
10
NO. 14-cv-01356-PHX-DGC
12
Plaintiffs,
13
14
vs.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendants.
1
2
Table of Contents
3
4
5
I.
II.
III.
8
9
10
11
12
13
14
15
18
19
16
17
20
21
22
23
24
25
26
27
28
1
2
3
4
b.
c. Additional
System..25
Non-Preempted
Applications
Outside
the
I-9
9
10
11
IV.
V.
CONCLUSION ....................................................................................................... 28
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
1
2
3
4
5
6
7
8
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
10
NO. 14-cv-01356-PHX-DGC
11
Plaintiffs,
12
13
vs.
14
15
16
17
Defendants.
18
19
20
Pursuant to Rule 56(a), Fed. R. Civ. P., and the principles of the Celotex Trilogy, 1
21
22
23
24
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
25
26
1
27
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).
28
2
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.
-1-
Montgomery is entitled to summary judgment on each and every claim and each and every
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,
8
9
10
11
12
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
13
governmental websites. See infra at 12, 13 and CASOF, 7, 34, 35. Because the accuracy
14
of this official information is undisputed, judicial notice of them is proper. See Arizona
15
16
17
18
19
20
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
21
purposes of obtaining or continuing employment (Identity Theft Laws) and A.R.S. 13-
22
2002 (Forgery Law), Montgomery is exercising traditional state police powers to protect
23
the people of Maricopa County from the harms of identity theft/forgery. Approximately
24
50% of MCAOs prosecutions have victims. MCAOs prosecutions do not intrude upon the
25
IRCAs federal employment verification system, 8 U.S.C. 1324a and 8 C.F.R. 274a (I-9
26
System or I-9 Requirements) or federal immigration policy. Congress has not manifested
27
any intent to preempt MCAOs prosecutions of violations of Laws against any person who
28
[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.
-2-
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
Identity Theft Laws and Forgery Law require summary judgment in his favor on Plaintiffs
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
8
9
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
10
11
12
13
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
14
Also, there is no evidence showing that the Laws treat unauthorized alien workers
16
differently from other similarly-situated persons. Additionally, there is a rational basis for the
17
18
19
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.
20
21
22
II.
PROCEDURAL BACKGROUND.
A. District Court Proceedings.
23
On June 18, 2014, Plaintiffs filed Section 1983 claims seeking declaratory and
24
injunctive relief against Montgomery, State of Arizona, Maricopa County, and Maricopa
25
26
27
28
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]
-3-
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
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
8
9
10
11
12
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
13
June 18, 2015, Plaintiffs amended their complaint to add an as-applied preemption claim
14
arising out of the County Defendants enforcement of the Forgery Law. [Doc. 191, 220]
15
On May 2, 2016, the U.S. Court of Appeals for the Ninth Circuit issued its unanimous
17
18
19
20
21
22
23
24
25
26
27
28
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.
review. Id., No. 15-15211 (9th Cir. June 9, 2016) at DktEntry 131, 133.
III.
exclusion of state laws to the contrary. U.S. Const. art. VI, cl. 2.
-4-
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
8
9
10
11
12
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
13
among those residual powers reserved to the States is the power to define and prosecute
14
The Identity Theft Laws protect against harms resulting from the offenders use of
16
17
18
19
20
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.
21
The Forgery Law also is a traditional state crime regulating for the health and safety of
22
the people of Arizona. The Forgery Law protects against harms resulting from the offenders
23
24
A.R.S. 13-2001(3), (5), (6), (7), (8), (9), (12); 13-2002. The Forgery Law therefore also
25
enjoys the presumption against preemption. See, e.g., Puente Arizona, 821 F.3d at 1104.
26
27
Attorney when he prosecutes public offenses including the Identity Theft Laws and the
28
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
-5-
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,
9
10
11
intent of Congress to preempt the Laws and Montgomerys prosecutions of them, Plaintiffs
Supremacy Clause Claims fail.
12
13
It is uncontested that the language of the Identity Theft Laws is neutral; they apply to
14
unauthorized aliens, 3 authorized aliens, and U.S. citizens alike. Puente Arizona, 821 F.3d at
15
1105. A.R.S. 13-2008(A), 13-2009(A)(3). The same is true for the Forgery Law. A.R.S.
16
13-2002. Accordingly, as the Ninth Circuit recognized, the preemption rulings of U.S. v.
17
Arizona, 132 S. Ct. 2492 (2012) and its progeny are distinguishable due to express
18
immigration elements written into the laws contested in those cases. Id. at 1107 (citations
19
omitted). 4
20
21
22
23
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.
24
4
25
26
27
28
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).
-6-
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).
1605988, * 3 (App. Ariz. June 9, 2009)(discussing the specific elements of state identity theft
9
10
11
12
13
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
14
Ventures v. Stewart, 183 F.3d 307, 310-12 (4th Cir. 1999). Congress enacted Section 1028 on
15
the premise that [f]ederal legislation alone cannot eradicate identity theft. S. Rep. No. 105-
16
274, at 9 (1998).
17
governments . . . to complement the Federal role in this area with appropriate preventive and
18
19
20
enforcement, providing that state convictions of aliens for crimes involving moral turpitude
21
22
1127(a)(2)(A)(i).
8 U.S.C. 1182(a)(2)(A)(i),
23
Two recent, published Ninth Circuit cases hold that MCAOs convictions of aliens for
24
Employment Violations, using the very statutes attacked by Plaintiffs, constitute convictions
25
for crimes involving moral turpitude supporting the aliens removal. These convictions
26
relied upon evidence of the offenders use of anothers identity on the Form W-4 and Form
27
A-4.
28
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
-7-
Charges within the framework of federal immigration removal statutes affirms the fact that
Congress did not intend for the latter to preempt the former.
3
4
Theft Laws and Forgery Law for the purposes of enforcing valid state laws, addressing the
people of Maricopa County, and providing justice for victims. [CASOF, 5] There is no
9
10
11
12
13
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
14
the Identity Theft Laws address Arizonas persistently high rate of identity theft
15
16
17
18
19
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.
20
Defense expert criminal justice statistician and economist Mark A. Cohen, PhD.
21
[CASOF, 6] found that the incidence of identity theft in Arizona and Maricopa County is
22
considerably higher than the national rate. Dr. Cohen estimated the rate of identity theft
23
victimization in Arizona to be more than twice that of the U.S. [CASOF, 6] He found that,
24
annually, there are an estimated 270,000 cases of personal information theft in Arizona and
25
26
Dr. Cohen found that, in Arizona, employment-related identity theft was the number
27
one type of identity theft complained about in 2006 (39% of complaints), while it was the
28
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
-8-
capita. [CASOF, 7] Dr. Cohen found that the drop in the rate of identity theft complaints
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
5, 7]
2. Incidence of
Prosecutions.
8
9
MCAO
Employment-Related
Identity
Theft/Forgery
10
Relying upon MCAO case management system data, Dr. Cohen analyzed the
11
incidence of law enforcement agency submittals and MCAO prosecutions for employment-
12
related violations of the Identity Theft Laws and Forgery Laws (Employment Violations,
13
14
2015. 5 [CASOF, 8]
15
Dr. Cohen found that MCAO filed Employment Charges against approximately 1390
16
offenders in 2005 2015 (MCAO Filed Set). [CASOF, 9] He found that MCAO charged
17
violations of the Identity Theft Laws and Forgery as to 1,176 (85%) of those offenders.
18
[CASOF, 10]
19
20
exercising prosecutorial discretion, prosecutors file all identity theft and forgery charges in
21
22
23
24
25
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
26
and Forgery Laws work together to address employment-related fraud in Maricopa County:
27
the Identity Theft Laws address harms to the true identity owner resulting from the offenders
28
5
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]
-9-
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.
9
10
11
Dr. Cohen
estimated that Arizona residents are about 2.5 times more likely to be identity theft victims
than average in the U.S.
population and 2.5 times the victimization rate, Arizona is thus estimated to incur
12
approximately 5% of the costs of identity theft in the U.S. He found that, based on the $55.9
13
to $102.7 billion annual cost of identity theft estimated above, the cost to Arizona would be
14
approximately 3% of the cost nationwide, or between $1.7 and $3.1 billion. [CASOF, 13]
16
17
18
19
20
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-
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
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
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-
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
Job applications are another large category of charged documents (268) in MCAOs
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
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.
-12-
The FTC 7 recognizes this fact. It directs victims to make complaints to local police, not
1
2
federal investigators.
the FTC referrals to state and local law enforcement are employment-related identity theft
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-
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
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
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).
-13-
traditional state police powers to protect the health and safety of the people of Arizona and
4
5
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
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
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
County submitted proposed Employment Charges. [CASOF, 44] Dr. Cohen found that law
16
17
18
19
20
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
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
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
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
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
28
[CASOF, 51]
-16-
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
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
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
-17-
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
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
8
9
10
11
12
13
The similarities in
14
testified that in using the term disproportionate in her report, she means a category that is
15
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
27
28
Her numerically greater than findings are consistent with Dr. Cohens
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
(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.
28
(those documents particularly identified in 8 C.F.R. 274a.2(b)(v)) for the specific purpose
-19-
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
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.
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).
-20-
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
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
13
15
16
17
18
are not preempted when they rely on evidence of a persons use of anothers identity for
19
20
21
22
23
evidence of the offenders use of anothers identity on documents other than the Form I9 (Non-Form I-9 Cases).
24
25
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
-21-
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
7
8
9
10
11
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.
12
[CASOF, 61] Examples of other charged documents include background check forms,
13
payroll forms, credit check forms, and direct deposit forms. [CASOF, 62]
14
State and federal tax withholding forms (Form A-4, Form W-4) are required by state
15
and federal tax laws, not immigration law. 26 U.S.C. 3402, 6109, 6051; A.R.S. 43-401
16
17
18
19
20
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,
21
criminal background forms, employer policy documents, employee benefits forms, employee
22
badges, bank direct deposit forms, drug testing forms, and state food handler forms charged
23
by MCAO are not regulated by the I-9 Requirements. [CASOF, 64; See also CASOF,
24
65, 68] Plaintiff Cervantes completed the Form W-4 and Form A-4 using a social security
25
number not her own. [CASOF, 66] Plaintiff Estrada completed a job application, Form W-
26
27
28
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]
11
-22-
4 and Form A-4 using anothers name and social security number. [CASOF, 67] Both pled
identification license or a social security card does not automate any finding of intrusion on
operating identification licenses and social security cards to complete job applications, tax
forms, health forms, criminal background checks, security forms, payroll deposit forms, and
8
9
10
11
12
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.
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
13
18
19
identity on Non-Form I-9 documents (i.e., Form W-4, Form A-4, Job Application) and the
20
21
22
supports lawful state prosecution of identity theft/forgery offenders even assuming the Form
23
I-9 evidence is suppressible. See, e.g., State v. Ochoa-Lara, 362 P.3d 606, 610-11 (Kan. App.
24
2015; State v. Reynua, 807 N.W.2d 473, 479-82 (Minn. App. 2011), revd in irrelevant part
25
by Minnesota v. Reynua, 2012 WL 3023328 (Minn. 2012). For example, Section 13-
26
2009(A)(3) charges against Plaintiff Cervantes were supported by admissible evidence of her
27
use of a false identity on the Form A-4 and Form W-4, notwithstanding other evidence of her
28
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
8
9
10
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
11
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
13
was formally established on September 17, 2014, almost two years ago and before entry of
14
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.
20
A federal court declaratory judgment on I-9 charging is not necessary. The IRCA Form
21
I-9 Document Use Limitation prohibits reliance on evidence of the Form I-9. 8 U.S.C.
22
1324a(b)(5), 1324a(d)(2)(F), (G). Montgomery does not dispute this Limitation. Because
23
there is no actual controversy over the IRCA Form I-9 Document Use Limitation, Plaintiffs
24
cannot establish the prerequisite to declaratory relief. 28 U.S.C. 2201. A federal injunction
25
on I-9 charging is not appropriate because I-9 charging does not amount to an actionable
26
policy or practice, I-9 charging is prohibited per Montgomerys formal policy, I-9 charging
27
ceased years ago per that policy, and any errant I-9 charging by MCAO line prosecutors
28
would be subject to a motion to dismiss the charge/suppress the evidence in state court.
...
-24-
1
2
3
(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
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).
10
Further, they are committing crimes to evade licensing requirements, not the I-9
11
Requirements.
12
(b) MCAOs Employment Prosecutions against offenders who use anothers identity to
13
hide their criminal history from the prospective employer. Prosecution of these offenders
14
does not have a practical effect on the I-9 System; they are committing crimes to evade
15
their felony history, not the I-9 Requirements. Puente Arizona, 821 F.3d at 1105. [CASOF,
16
78] These are obvious constitutional applications of the Laws. Puente Arizona, 821 F.3d at
17
1104 - 1105.
18
19
20
21
22
23
(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)
24
anothers identity for non-Form I-9 reasons where the underlying police investigation
25
originates from traffic stops, traffic accidents, drug screenings, thefts, shoplifting, and other
26
27
28
-25-
including Phoenix Police (199), ADOT (79), Scottsdale Police (78), Mesa Police (76),
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.
enforcement agencies are controlled by the policies and practices of Sheriff Arpaio. Non-
8
9
10
11
12
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
prosecuting these Cases. [CASOF, 82] Like the overall MCAO Filed Set, the majority of
13
Non-Worksite Cases (approximately 99%) do not rely solely on the Form I-9. [CASOF, 81]
14
Because they start outside the I-9 System and they stay outside the I-9 System, Non-Worksite
15
(e)
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
21
22
23
24
evidence from MCSOs worksite investigations, MCAO prosecutors applied the same
25
26
the legally admissible evidence presented to them whether there was a reasonable likelihood
27
28
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
-26-
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
9
10
11
12
[CASOF, 85]
Non-existent
13
Montgomerys prosecutions of the Identity Theft Laws and Forgery Laws are necessary to
14
protect the health and safety of the people of Maricopa County. Montgomery has a legitimate
15
state police power interest in protecting against and responding to harms from an offenders
16
use of anothers identity such as harms to the true owners of identities, who are innocent
17
18
19
20
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
21
Plaintiffs cannot prove that Congress manifested any intent to preempt MCAOs
22
prosecutions of the Laws without a practical effect on the I-9 System or federal immigration.
23
See Puente Arizona, 821 F.3d at 1105 - 1108. Montgomerys non-preempted applications of
24
the Identity Theft Laws and Forgery Laws require summary judgment in his favor on
25
26
27
28
IV.
-27-
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
8
9
10
11
12
13
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
14
judgment on Plaintiffs Facial Supremacy Clause Claim and Facial Equal Protection Clause
15
Claim.
16
17
18
19
20
21
22
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.
23
24
WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
25
26
27
28
-28-
1
2
3
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:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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
24
25
26
27
28
-29-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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
17
18
19
20
21
22
23
24
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
25
26
27
28
Nicholas Espiritu
National Immigration Law Center
3435 Wilshire Blvd. Suite 2850
Los Angeles, CA 90010
espiritu@nilc.org
Attorneys for Plaintiffs
-30-
1
2
3
4
5
6
7
8
9
10
11
12
13
/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
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-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
Docket Number
2:14-cv-01356
2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 35