Court Blocks Local Arizona Anti-Solicitation Law

Law Restricts Free Speech Rights Of Day Laborers

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PHOENIX – The U.S District Court in Phoenix issued a preliminary order today stopping the town of Cave Creek, Arizona from enforcing an anti-solicitation ordinance that infringes on the free speech rights of day laborers in that town. Pending a final ruling in the case, the order ensures that day laborers will be able to exercise their constitutional rights by expressing their availability to work by standing in public areas without fear of being cited under the ordinance.

“This is a major victory for day laborers and everyone else in Cave Creek who wish to exercise their free speech rights without fear of being punished,” said Mónica M. Ramírez, a staff attorney with the American Civil Liberties Union Immigrants’ Rights Project, which is lead counsel in the case. “The Constitution protects the free speech rights of all persons, and today’s decision makes it clear that day laborers would suffer irreparable harm if denied the right to stand on the sidewalk or along the roadway in Cave Creek to express their availability to work.”

In late March, the ACLU, the ACLU of Arizona and the Mexican American Legal Defense and Educational Fund (MALDEF) filed a lawsuit against the town of Cave Creek and the town’s mayor and deputy mayor on behalf of Hector Lopez, Leopoldo Ibarra and Ismael Ibarra, three longtime day laborers and Arizona residents who in the past successfully solicited employment in Cave Creek by standing in public areas, peaceably indicating to occupants of passing vehicles their availability for temporary employment. Lopez, Ibarra and Ibarra will now be able to make their availability for day labor known without fear that they will be cited for violating the ordinance.

In granting the preliminary order, the court stressed that other district courts in the Ninth Circuit have uniformly found similar anti-solicitation ordinances unconstitutional.

“Today’s decision should serve as a warning for other state and local municipalities that have considered similar ordinances: passing this type of discriminatory ordinance is impermissible and opens them up to costly litigation. Around the nation, the majority of judges who have reviewed these local anti-solicitation ordinances have put a stop to them,” said Kristina Campbell, MALDEF staff attorney.

“Local attempts to regulate immigration by passing ordinances that restrict free speech are unconstitutional, ineffective, and only drain state and local budgets,” continued Campbell.

In September 2007, the Cave Creek Town Council passed an anti-solicitation ordinance that restricted free speech by prohibiting solicitation of employment, business or contributions from the occupants of vehicles when standing on or next to a street or highway – including the sidewalk. The ordinance went so far as to bar solicitation from occupants in vehicles that are lawfully parked in public areas.

Before the town passed the ordinance, day laborers – who are usually hired by homeowners to perform services like gardening, moving, light construction, housework and painting – solicited work in public areas.

“Now the sheriffs can’t use the ordinance as an excuse to harass people because of the color of their skin,” said Hector Lopez. “Standing on the side of the road is how I let people know that I’m available for work and the court saw that this is not a crime. Day laborers are hardworking people and provide a valuable service to this community that we are a part of; our kids go to school here and we work, spend money and go to church here.”

While the town was apparently motivated by a desire to target illegal immigration, the ordinance applies to everyone in Cave Creek, regardless of their nationality or immigration status. The ACLU argues that individuals, regardless of their immigration status, have the right to free speech which includes peaceably soliciting employment in public areas.

“The Constitution protects all people in this country, regardless of their background,” said Dan Pochoda, Legal Director of the ACLU of Arizona. “Day laborers and others who wish to exercise their First Amendment right to solicit employment in public places have the right to do so without fear that they will be discriminated against simply because of the color of their skin or because they are perceived to be foreign born.”

Lawyers on the case include Ramírez and Cecillia D. Wang of the ACLU Immigrants’ Rights Project; Pochoda of the ACLU of Arizona; and Campbell and Cynthia Valenzuela of MALDEF.

The court’s ruling in Lopez, et al vs. Town of Cave Creek, et. al., is available online at: www.aclu.org/immigrants/discrim/35497lgl20080602.html