USA v. State of Arizona, et al

Filing 97

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Anti-Defamation League. Date of service: 09/30/2010. [7493333] (PSK)

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USA v. State of Arizona, et al Doc. 97 No. 10-16645 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. STATE OF ARIZONA AND JANICE K. BREWER, GOVERNOR OF THE STATE OF ARIZONA, IN HER OFFICIAL CAPACITY, Defendants-Appellants. On Appeal from the United States District Court for the District of Arizona, Case No. CV 10-1413-PHX-SRB Hon. Susan Bolton, District Judge, Presiding ANTI-DEFAMATION LEAGUE'S MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF STEPTOE & JOHNSON LLP DAVID J. BODNEY PETER S. KOZINETS Collier Center 201 East Washington Street, Suite 1600 Phoenix, Arizona 85004-2382 (602) 257-5200 ANTI-DEFAMATION LEAGUE STEVEN M. FREEMAN* STEVEN C. SHEINBERG* DEBORAH BENSINGER* 605 Third Avenue New York, NY 10158-3560 (212) 885-7700 *Not admitted in this jurisdiction Attorneys for Amicus Curiae Anti-Defamation League Pursuant to Federal Rule of Appellate Procedure 29(a), the Anti-Defamation League ("ADL") respectfully moves for leave to file the accompanying amicus curiae brief in support of Plaintiff-Appellee United States.1 I. Interest of Movant ADL is a non-profit organization that fights anti-Semitism and other forms of bigotry, defends democratic ideals and protects civil rights for all. It is the leading nongovernmental organization in the United States that trains law enforcement officers on issues of extremism and hate crimes. It provides training through a national network of regional offices to thousands of law enforcement officers to ensure that they know how to recognize and identify hate crimes and investigate them properly and sensitively.2 Additionally, ADL has trained law enforcement leaders at its Advanced Training School: Course on Extremist and Terrorist Threats (ATS) in Washington, D.C.3 In partnership with the United States Holocaust Memorial Museum, ADL has also trained more than 45,000 law enforcement professionals in Law Enforcement and Society: Lessons of the Plaintiff-Appellee has consented to ADL's participation as amicus curiae. Defendants-Appellants have informed ADL that, at this time, they do not consent. ADL, Law Enforcement Training, (last visited Sept. 27, 2010). ADL, Advanced Training School, (last visited Sept. 27, 2010). 3 2 1 1 Holocaust, a program that draws on the lessons of the Holocaust to provide police professionals with an increased understanding of the importance of their relationship to the people they serve and their role as protectors of the Constitution.4 ADL also has unmatched expertise concerning the development of hate crimes legislation at the federal and state levels. ADL played a leading role in advocating for passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("HCPA"), signed into law by President Obama on October 28, 2009 (codified at 18 U.S.C. 249). HCPA gives the United States Department of Justice the power to investigate and prosecute violent crimes where the perpetrator selects the victim because of the person's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. In 1981, ADL drafted a model state hate crime law that provides for increased penalties for criminals who target their victims because of personal characteristics, such as race, religion, national origin, gender or sexual orientation.5 The District of Columbia ADL, Law Enforcement and Society: Lessons of the Holocaust (Mar. 19, 2009),; Federal Bureau of Investigation, A Different Kind of Training: What New Agents Learn from the Holocaust (May 30, 2010), See ADL, Hate Crimes Laws, (last visited Sept. 27, 2010); ADL Model Legislation, (last visited Sept. 27, 2010). 5 4 2 and 45 states, including Arizona, have enacted statutes based on or similar to ADL's model.6 Furthermore, ADL has advocated for laws mandating the collection of statistics about hate crimes. II. ADL's Participation Is Desirable and the Matters Raised in Its Brief Are Relevant. Through its extensive work with law enforcement and specialized expertise in hate crimes, ADL is uniquely situated to assist the Court in evaluating the impact of S.B. 1070 on the reporting and prevention of hate crimes in Arizona. ADL's proposed brief provides important context about a particular and devastating consequence of the rupture in police-community trust that S.B. 1070 will inevitably cause the creation of a law enforcement underclass uniquely vulnerable to increased hate crimes and violence. As shown in ADL's brief, unless the District Court's Preliminary Injunction is affirmed, S.B. 1070 will undermine the enforcement of hate crimes in Arizona by driving a wedge between law enforcement and communities whom such laws were designed to protect. That breach in trust will render Arizona's Latino population and immigrant communities, including U.S. Citizens, lawful permanent residents and See, e.g., A.R.S. 13-701(D)(15) (aggravating factor in criminal sentencing includes "[e]vidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group listed in 41-1750, subsection A, paragraph 3, or because of the defendant's perception of the victim's identity in a group listed in 41-1750, subsection A, paragraph 3"); A.R.S. 41-1750(A)(3) (discussing "evidence of prejudice based on race, color, religion, national origin, sexual orientation, gender or disability"). 6 3 undocumented immigrants, uniquely vulnerable to the commission of hate crimes. These considerations highlight how the enjoined provisions of S.B. 1070 conflict with the clearly manifested intent of Congress and the public policy of Arizona regarding the investigation and prosecution of hate crimes. As the District Court recognized, courts must "pay[ ] particular attention to the public consequences" of granting or withholding a preliminary injunction. (ER 35, quoting Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008) (emphasis added; internal citation omitted).) ADL's amicus brief demonstrates that the public consequences of vacating the Preliminary Injunction and the public interest strongly support affirmance. III. Conclusion For the foregoing reasons, the Anti-Defamation League's Motion for Leave to File Amicus Curiae Brief should be granted. 4 RESPECTFULLY SUBMITTED this 30th day of September, 2010. STEPTOE & JOHNSON LLP By s/ Peter S. Kozinets David J. Bodney Peter S. Kozinets Collier Center 201 East Washington Street, Suite 1600 Phoenix, Arizona 85004-2382 ANTI-DEFAMATION LEAGUE Steven M. Freeman* Steven C. Sheinberg* Deborah Bensinger* 605 Third Avenue New York, NY 10158-3560 *Not admitted in this jurisdiction Attorneys for Amicus Curiae Anti-Defamation League 5 CERTIFICATE OF SERVICE I hereby certify that on September 30, 2010, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system on the following: Tony West Dennis K. Burke Arthur R. Goldberg Varu Chilakamarri Joshua Wilkenfeld U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Beth S. Brinkmann Michael P. Abate Thomas Mark Bondy Edwin Smiley Sneedler Mark B. Stern Daniel Tenny 950 Pennsylvania Ave., NW Washington, DC 20530 Counsel for Plaintiff-Appellees John J. Bouma Robert A. Henry Joseph G. Adams Snell & Wilmer L.L.P. One Arizona Center 400 E. Van Buren Phoenix, Arizona 85004-2202 Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, Arizona 85007 Counsel for Defendants-Appellants Jeffrey R. King King Law Offices LLC P. O. Box 1211 Independence, Kansas 67301 Counsel for Senate Majority Leader Derek Schmidt and House Speaker Michael O'Neal of the Kansas Legislature 6 Barnaby W. Zall Weinberg & Jacobs 11300 Rockville Pike, Suite 1200 Rockville, MD 20852 Counsel for American Unity Legal Defense Fund James Leslie Hirsen SBD Group, Inc. 505 South Villa Real Drive Anaheim Hills, CA 92807 Counsel for Justice and Freedom Fund James Scott Detamore Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227 Counsel for Mountain States Legal Foundation Bernard Eric Restuccia Office of the Attorney General 525 W. Ottawa 670 Law Bldg. Lansing, MI 48913 Michael A. Cox Michigan Attorney General P. O. Box 30212 Lansing, MI 48909 Counsel for State of Michigan, State of Alabama, State of Florida, State of Idaho, State of Louisiana, State of Nebraska, Commonwealth of the Northern Mariana Islands, State of Pennsylvania, State of South Carolina, State of South Dakota, State of Texas, State of Virginia Jay Sekulow American Center for Law and Justice 201 Maryland Avenue, N.E. Washington, DC 20002 Counsel for Members of Congress of the United States 7 Robert Joseph Muise Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 David Yerushalmi Law Offices of David Yerushalmi, P.C. P. O. Box 6358 Chandler, AZ 85246 Counsel for Thomas More Law Center, Center for Security Policy, Society of Americans for National Existence Geoffrey S. Kercsmar Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, AZ 85250 Counsel for State Legislators for Legal Immigration Richard Abbott Samp Washington Legal Foundation 2009 Massachusetts Avenue, NW Washington, DC 20036 Counsel for Washington Legal Foundation, U.S. Representative Dan Burton, U.S. Representative Lynn Jenkins, U.S. Representative Jerry Moran, Allied Educational Foundation, Concerned Citizens and Friends of Illegal Immigration Law Enforcement, National Border Patrol Council, U.S. Representative Tom McClintock John C. Eastman The Claremont Institute Center for Constitutional Jurisprudence c/o Chapman Univ. School of Law One University Drive Orange, CA 92866 Counsel for U.S. Representative Tom McClintock, Congressman Ed Royce, Congressman Lamar Smith, Congressman Ted Poe, Center for Constitutional Jurisprudence, Individual Rights Foundation Brian Bergin Rose Law Group 6613 N. Scottsdale Road Scottsdale, AZ 85250 Counsel for Cochise County Sheriff Larry A. Dever Paul J. Orfanedes James F. Peterson Michael Bekesha Judicial Watch, Inc. 425 Third Street, S.W., Suite 800 Washington, DC 20024 Counsel for Arizona State Senator Russell Pearce 8 Thomas P. Liddy Maria R. Brandon Maricopa County Office of Special Litigation Services Security Center Building 234 North Central Avenue, Suite 4400 Phoenix, Arizona 85004 Counsel for Maricopa County Sheriff Joseph M. Arpaio Ray Elbert Parker P. O. Box 320636 Alexandria, VA 22320 Counsel for Ray Elbert Parker Brian Garlitz Garlitz Bell, LLP 3010 LBJ Freeway, Suite 990 Dallas, TX 75234 Counsel for Foundation for the Preservation of Constitutionally Reserved Rights Richard Peter Hutchison Landmark Legal Foundation 3100 Broadway, Suite 1210 Kansas City, MO 64111 Counsel for Landmark Legal Foundation s/ Peter S. Kozinets Peter S. Kozinets 9

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