ID-theft laws may be vulnerable in court

The state identity-theft laws challenged in last week’s federal lawsuit against Maricopa County Sheriff Joe Arpaio and others have been challenged previously by defense attorneys in court. Those initial results, attorneys say, are promising.

The two state laws in question, “taking identity of another person or entity” and “aggravated taking identity of another person or entity,” are frequently cited as the legal backing behind Arpaio’s workplace raids.

The suit alleges that the statutes, while purporting to enforce all varieties of identity theft, are thinly veiled mechanisms used to promote a broader, anti-immigration agenda.

Arpaio defends his practices and maintains that his investigations target identity thieves regardless of their immigration status.

Since its inception in 2008, the Sheriff’s Criminal Employment Squad has arrested and booked over 780 suspects for charges related to forgery and identity theft.

The vast majority of those arrested under the ID theft laws, through Arpaio’s workplace investigations or otherwise, were convicted, according to data from the Maricopa County Attorney’s Office.

In a sample of 2,500 cases, some of which include more than one defendant, only six defendants were acquitted after going to trial.

Most will ultimately accept a prosecutor’s deal and plead guilty, either to the charged Class 3 or Class 4 felonies or to a lesser charge, such as Class 6 felony criminal impersonation, said Ray Ybarra Maldonado, the local plaintiffs’ attorney on the lawsuit.

He said the standard sentencing agreement is 90 days in jail, a felony record and probation.

It’s a tempting offer, Ybarra Maldonado said, given that the alternative requires defendants to wait out their trials behind bars.

Under Arizona’s Proposition 100, those who are in the country illegally are not eligible for bail if they are accused of a “serious” felony, classified as a Class 4 felony or lower.

“It’s essentially a deal, because if you want to take your case to trial, you’re probably going to be sitting in Arpaio’s jail for more than 90 days,” Ybarra Maldonado said.

But felony records may create a virtually impenetrable barrier for an undocumented immigrant to obtain the legal right to live and work in the U.S.

It was for this reason that Miguel Angel Morales-Sedano, a father and husband of a U.S. citizen, decided instead to take his chances with a jury.

He was charged with identity theft and forgery after a Sept. 27, 2012, raid at United Construction Group in Glendale.

Ybarra Maldonado represented Morales-Sedano in that case and filed a motion to dismiss the charges based on pre-emption of the federal government.

“The state of Arizona has simply created a mechanism by which they can arrest, detain and prosecute undocumented individuals for ‘working illegally’ in the country,” the motion stated. “Such actions are the exclusive domain of the federal government.”

The case went to trial, and a jury found Morales-Sedano not guilty based on reasonable doubt that he was the one who provided the false documentation.

The judge’s and jury’s responses to the state’s case emboldenedYbarra Maldonado and others to take these arguments on pre-emption a step further.

Plaintiffs in the suit are grassroots human-rights organization Puente Arizona, two women arrested and convicted of felony identity theft and Reverend Susan E. Frederick-Gray, a Maricopa County taxpayer who says enforcement of these statutes is an illegal expenditure of county dollars.

Along with Arpaio, County Attorney Bill Montgomery, Maricopa County and Arizona Department of Public Safety Director Robert Halliday, are named as defendants in the lawsuit.

QA about the new ID-theft lawsuit

Question: What will happen if the plaintiffs are successful?

Answer: The plaintiffs are asking for a permanent injunction that would prohibit Maricopa County from further enforcing the two named ID-theft laws, and a permanent injunction prohibiting Maricopa County from using documents associated with employment verification as a basis for law-enforcement efforts.

Essentially, the state could no longer enforce the ID-theft laws commonly used in workplace raids. The suit also asks that a judge order the defendants to expunge the records of the two plaintiffs who were convicted under these laws.

Q: I am using a fictitious Social Security number for my employment. Can I still be arrested?

A: Yes. Maricopa County Sheriff Joe Arpaio pledged in a recent news conference to continue to enforce the state laws against identity theft. Under the current statute, using a false Social Security number, whether it is attached to a real or a fictitious person, is a felony.

Q: I have been convicted under one of these laws. If the plaintiffs are successful, does this mean my convictions will be vacated?

A: Probably not automatically, saidRay Ybarra Maldonado, the local plaintiffs’ attorney on the lawsuit. “They would have to file some sort of motion to vacate, using our victory as a legal precedent,” he said.

Q: What if I pleaded to a lesser charge?

A: This will probably not affect those who pleaded to a lesser charge,Ybarra Maldonado said.

Q: Could Arpaio still conduct workplace raids based on forgery charges?

A: “That’s going to be up to how broad the ruling is from the district court,” Ybarra Maldonado said. In an interview, Arpaio said he would continue to enforce state forgery laws.

Q: Does this mean that I could still be arrested and charged by the federal government?

A: “Without a doubt,” Ybarra Maldonado said. “This is not a challenge for the federal government’s authority to do what Congress tells them they can do.” However, he noted that federal workplace raids are significantly less frequent and tend to go after employers, rather than the employees.

“It’s not by any means an approval of the federal government doing these raids, but it is pretty telling that what the state government does is the exact opposite of what the federal government does,” Ybarra Maldonado said.

Q: I’m currently using a fake ID to buy alcohol. Will this affect me?

A: No. “There’s a specific statute going toward those minors, and they aren’t being addressed at all in the lawsuit,” Ybarra Maldonado said.

Q: After an ID-theft conviction, I am on a priority list for removal from the country by Immigrations and Customs Enforcement (ICE). If this lawsuit is successful, will this remove me from the list or place me lower on it?

A: Plaintiff’s attorneys are hopeful that this would be the case, but history hasn’t proved promising, Ybarra Maldonado said.

After the plaintiff’s recent victory in a racial-profiling lawsuit against the Sheriff’s Office, attorneys attempted to use this as an argument to curb prioritized deportations.

“ICE just kind of seemed to ignore that argument,” Ybarra Maldonado said.

ICE officials do not comment on pending litigation.

Article source: http://www.azcentral.com/story/news/arizona/2014/06/29/id-theft-laws-court/11699123/

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