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Herndon Law Overturned On A Technicality

By Greg L | 30 August 2007 | Fairfax County, Illegal Aliens | 19 Comments

A court overturns Herndon’s anti-solicitation ordinance that requires that all hiring of day laborers be done at the official day laborer site in Herndon on a technicality, and John Steinbach of Mexicanos Sin Fronteras claims that this is a “huge victory“.  I guess that’s why the practice of law is restricted to those who actually have some idea about what they’re talking about.

From the Washington Post:

Alden rejected Moseley’s “content” argument. The judge ruled the law was narrowly tailored to serve a significant community interest, passing two parts of a “three-prong test” governments face to justify restriction of speech in a public forum.

The third prong is where the town falls short, Alden said, noting that governments restricting public speech must “open ample alternative channels” for communication of the prohibited speech.

Alden said the Herndon Official Workers Center is not adequate because it is described in the ordinance as a temporary site. She also cited Reston Interfaith’s agreement with the town, which was based on a temporary permit.

The bar on solicitation described in the ordinance, however, is permanent.

If the Herndon Town Council provides a “permanent permit” to the day laborer site, which would apparently remove this objection, would Steinbach then bemoan a huge loss?

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  1. Dan said on 30 Aug 2007 at 2:04 pm:
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    Very good point Greg, it does seem like this gives some wiggle room to fix this. The reference to the 14th seemed rather awkward, I sure would like to see the opinion it’s entirety..

  2. dolph said on 30 Aug 2007 at 2:22 pm:
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    I wonder if the nearby 7-11 will keep its armed guards? Has anyone been able to confirm this situation? I am not sure I actually believe it.

  3. Steve Thomas said on 30 Aug 2007 at 3:27 pm:
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    Considering that MSF and WWC is losing ground on all fronts, I am not at all surprised that John “viva la revalucion” Steinbach would characterize this as a “huge victory”. Consider this:

    MSF and WWC et. al. have threatened to file suit against the PWC BCOS for passing the resolution. They haven’t for the very reason that so many other jurisdictions have adopted similar resolutions: There is nothing for them to challenge.

    The boycott is an utter flop. The Pot. News is reporting that a group of hispanic businesses is in essence defecting from their cause, seeking to negotiate directly with the BCOS. “MSF and WWC…You don’t speak for us”. A quick trip to the local Wal-Mart or Shopper’s will show that Hispanics are ignoring the boycott.

    The resolution hasn’t even been enacted, and yet businesses who cater to illegal aliens are reporting that their business is down 30-40%. Drive around any neighborhood and you’ll find many vacant houses, formerly occupied by multiple families, tens of single men, etc. which is a sure sign that these former occupants were possible illegals. It doesn’t take a detective to see that these people aren’t taking any chances. They are pulling-choks and rolling to greener pastures, like Arlington and Fairfax. There goes the Marxist MSF and WWC’s “useful idiots”.

    The recent spat of high-profile crimes being reported in the MSM as being committed by illegal aliens isn’t helping MSF and WWC maintian the myth that illegal alien’s only violate US immigration law, and are only interested in working hard, and pursuing the American Dream.

    Yesterday, the Republican Caucus of the State Legislature announced an aggressive package to crack down on illegal aliens. I could have sworn I heard Nancy Lyall screaching in reaction to the news.

    Taken in the context of all the ground they have lost as of late, the “Herndon Decision” would constitue a “Huge Victory”. When it’s 4th quarter, and you are down by 6 touchdowns, heck a fieldgoal might seem huge. Reality is, Herndon will most likely award a permanent contract to a vendor who will verify immigration status, grant a permanent license to the center, and statisfy the courts objections. Then what Mr Stienbach?

  4. The Patriot said on 30 Aug 2007 at 3:56 pm:
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    We need judges like this one!

  5. JM said on 30 Aug 2007 at 4:40 pm:
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    Steve Thomas,

    I’m not even sure this court decision counts as a field goal. Think of it more like:

    Team Herndon runs inside the goal line. looks like a TD but wait, line judge says there is a penalty on the play, temporarily giving team Steinbach a few yards. Team Steinbach should not celebrate prematurely, though. Team Herndon lines up again, runs the Permanent License play (which Team Steinbach should have seen coming, but apparently does not) scores, and wins!

  6. JM said on 30 Aug 2007 at 4:42 pm:
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    I agree! Seems to me that requiring ID at the poll protects everyone’s right to vote. Currently, all I have to do is state my name and provide my address when asked for it. So anyone who knows my name and where I live could vote in my place! in a world where people steal other’s identies, why make it easy to steal my vote? I will gladly show my id if it protects my vote.

  7. John Light said on 30 Aug 2007 at 4:49 pm:
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    Dan, I am sorry, but I missed where there was mention to the 14th. If you mean the Due Process Clause of the 14th Amendment, well, I remember MANY cases ruling that something was in violation of it even where tying it to Due Process did not make any sense. Kind of like the medical term “irritable bowel syndrom” (a catch-all phrase when doctors do not know what is wrong with a patient’s stomach), Due Process is bantered about with too much frequency.

  8. dan said on 30 Aug 2007 at 5:03 pm:
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    “Alden said the issue also runs afoul of 14th Amendment guarantees of due process and equal protection under the law. ”

    last paragraph in the Post article..

  9. NoVA Scout said on 30 Aug 2007 at 10:24 pm:
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    I think that the “technicality” was that it was illegal.

  10. Michael said on 30 Aug 2007 at 11:20 pm:
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    Possibly, but creating a permanent day laborer site that allows all people of all races, gender, religions and ethnic groups to seek work would be legal. It would also be legal to check the status of legal and illegal immigration if everyone is asked for ID equally under the same law. It would not likely be legal to prevent anyone from hiring anyone at any location (suppressing free speech), but it would be legal to have police walk up to any business owner and ask him for his papers identifying his legal status and the legal status of any employee on his job site, as long as everyone is asked equally under the law. It would also be legal to prohibit loitering on any private or desinated public property (that’s called posted no trespassing) and arrest anyone of any race, religion, gender, ethnic group for trespassing. They could also be asked for their legal or illegal status as it is a crime to be in the country without either a visa with an I-94 that is not expired, a green card, or a us Citizenship proof document (put on a driver’s license). I don’t see what the problem is, except people with limited brains and memory of the 1960s now want to encourage people to break the law.

    We allow poeple to break the law by creating special ethnic and religious schools that encourage only certain ethnic, racial or gender groups to enroll, or teach only education that advocates ethnic, gender or racial special priviliges and culture. We seem to have forgotton why the 14th admendment was created and amended, to prevent all white schools from forming that only allowed one ethnic group and only taught one ethnic approach to education, from preventing racial groups like the KKK from advocating for special ethnic and religious group privileges. Now some people with “bleeding hearts” are so stupid that they now think its OK for people to advocate for special group privileges again, but this time its racial privileges for non-white ethnic groups and priviliged religious groups advocating and protesting just like the KKK did before the 14th was amended. If we are going to advocate for Muslim, Jewish, and other special religious schools to form, and advocate for Hispanic, Arab, African, and Asian special privileges by screaming racial group protests, then why do we still think protestant, white schools that cater to only the Caucasion race, and groups like the KKK are still bad and prohibited by the 14th admendment. Illegal Immigrants from ethnic, racial, gender, and religious groups don’t have any concept of “individual rights” preventing racial hatred and segregation of schools and law as it applies to demanding racial, gender, religious and ethnic group priviliges, so they think advocating for just their group privilege is “lawful”. Think again…

  11. The Patriot said on 31 Aug 2007 at 8:35 am:
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    Just look at La Raza (and NCLR). Could a non-latino become a member or receive benefits/services from them? If not, wouldn’t that be discrimination based on race?

  12. M/LOUDOUN said on 31 Aug 2007 at 9:08 am:
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    Everytime we make a little progress in combating criminal activity at the local level some judge sets us back. For instance the judge in the Hazleton PA case. At what point do we realize that the law, the Government and the judiciary have not only failed us but are activly working against us citizens. At what point do we put an end to this lawlessness?

  13. TH said on 31 Aug 2007 at 9:59 am:
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    You are free to join La Raza without having a Hispanic background. Just because they use La Raza, it doesn’t mean the race. Here is something from their website:

    What does the term “La Raza” mean?
    The term “La Raza” has its origins in early 20th century Latin American literature and translates into English most closely as “the people,” or, according to some scholars, “the Hispanic people of the New World.” The term was coined by Mexican scholar José Vasconcelos to reflect the fact that the people of Latin America are a mixture of many of the world’s races, cultures, and religions. Some people have mistranslated “La Raza” to mean “The Race,” implying that it is a term meant to exclude others. In fact, the full term coined by Vasconcelos, “La Raza Cósmica,” meaning the “cosmic people,” was developed to reflect not purity but the mixture inherent in the Hispanic people. This is an inclusive concept, meaning that Hispanics share with all other peoples of the world a common heritage and destiny.

  14. TH said on 31 Aug 2007 at 10:07 am:
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    I think we can debate all we want about the legality or not of the measure but the fact is that nobody wins. The community has to deal with this issue regardless of the outcome of all these procedures. It is not a matter of technicality but the law. i find interesting that a lot of people talk about the laws in the books and how the law should be respected but when a result contradicts what they want then we call them technicalities or decision made by activist judges.
    What the judges are doing with all these challenges is pretty much agreeing with existing laws and previous decisions in that matter. Loitering laws have never been succeesful. Local governments cannot pass laws to enforce immigration. You can do a lot of things around it but regardless of what we want for the communities, things won’t be changed that way.
    As the Suprem Court concludes in many cases: contact you congress representatives to change the law.

  15. TH said on 31 Aug 2007 at 10:11 am:
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    “Everytime we make a little progress in combating criminal activity at the local level some judge sets us back”
    It is not a judge but the law. Otherwise it will be a mess if we could pass any law we want it. Hazleton is not any different. You cannot take immigration and enforce it at the local level. there is no decisions supporting that argument. It can be changed but I doubt that judges will contradict all the decisions in that area.
    Face it, there are other ways to do something for your community but all these measures haven’t worked in the past.

  16. Not Jack Herrity said on 31 Aug 2007 at 12:35 pm:
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    My problem with Judge Alden’s opinion is that she seems to have bent the law to satisfy her own political leanings.

    Judge Alden’s primary objection was to the label of “temporary” on the day labor site, which she interpreted to mean that the site would go away while the anti-solicitation law remained on the books. Interesting.

    My argument is that the issue brought up in Judge Alden’s opinion would not be relevant unless the day labor site were actually closed. Just because something is labeled “temporary” does not necessarily make it so. The day labor site is “temporary” because its operating permit had to be renewed by the Herndon Town Council. The issue cited by Judge Alden would not seem to be ripe until or unless the day labor site were closed.

    Moreover, every law is temporary because every law can be rescinded by the governing body that made it in the first place.

    I sincerely hope Judge Alden did not hurt herself while stretching so far to make her point. There is a reason she is among the most overturned Circuit Court judges in the Commonwealth.


  17. anon said on 31 Aug 2007 at 9:29 pm:
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    Judges are stopping another measure, this time from the federal government itself:

    SAN FRANCISCO, California (AP) — The Social Security Administration cannot start sending out letters to employers next week that carry with them more serious penalties for knowingly hiring illegal immigrants, a federal judge ruled Friday.

    Ruling on a lawsuit by the nation’s largest federation of labor unions against the U.S. government, U.S. District Judge Maxine Chesney granted a temporary restraining order prohibiting the so-called “no-match” letters from going out as planned starting Tuesday.

    The AFL-CIO lawsuit, filed this week, claims that new Department of Homeland Security rules outlined in accompanying letters threaten to violate workers’ rights and unfairly burden employers. Chesney said the court needs “breathing room” before making any decision on the legality of new penalties aimed at cracking down on the hiring of illegal immigrants.

    She set the next hearing on the matter for October 1.

    The Social Security Administration has sent out “no-match” letters for more than two decades warning employers of discrepancies in the information the government has on their workers. Employers often brushed aside the letters, and the small fines that sometimes were incurred, as a cost of doing business.

    But this year, those letters are to be accompanied by notices from the Department of Homeland Security outlining strict new requirements for employers to resolve those discrepancies within 90 days or face fines or criminal prosecution if they’re deemed to have knowingly hired illegal immigrants

  18. Michael said on 31 Aug 2007 at 9:32 pm:
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    If La Raza means “the People” and is understood to mean the “Hispanic people of the new world” then why are they only advocating for special rights and privilidges just for people of thier own race? If they used a term like “the individuals” and advocated for equal rights for all races, genders, religions and ethnic groups to be “the same” rather than “different”, where no ethnic group is “above the law” they would understand the concept of “free American individuals” where American people understand, know and advocate following the laws of our land. We do not separate our citizens into screaming racial activists focused on benefits for only one race and ethnic group (lke special language, medical treatment, educational treatment, recreational activities, special laws to allow one race to break the law, etc, etc.) This is why “La Raza” peoples, and Mexicanos Sin Fronteras do not act as non-racially focused individuals who don’t get American concepts and only look after their own interests.

  19. Rob Smalls said on 4 Sep 2007 at 4:46 pm:
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    TH -

    Your explanation what La Raza means (the people) makes little sense when you look at their motto, “For La Raza todo. Fuera de La Raza nada”. You’re suggesting their motto means “For the people, everything. For those not the people, nothing”. Whom precisely would “not the people” be?

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