United States of America v. Alabama, State of et al

Filing 2

MOTION for Preliminary Injunction by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Reeves, C)

FILED
2011 Aug-01 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 5

BIRMINGHAMnIlOLICE DEPARTMENT
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U

WILLIAM A. BELL, SR.
MAYOR

A. C. ROPER
CHIEF OF POLICE

171O-1ST AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
[phone]

DECLARATION OF A.C. ROPER
CIllEF OF POLICE OF THE BIRMINGHAM POLICE DEPARTMENT
I, A.C. Roper, declare and state as follows:
1.
I was born in Birmingham, Alabama, and I have over twenty six years
of law enforcement experience. I began my career with the Montgomery
Police Department in 1985 where I was promoted to Corporal and served as a
Patrol Officer, Academy Instructor and Recruiter. After more than three years,
I returned to the Birmingham area and served in the Hoover Police
Department. In Hoover, I was promoted through the ranks, culminating with
my promotion to Assistant Chief of Police. In 2007 I was appointed
Birmingham's Chief of the Police.
2.
As the Chief, I am responsible for protecting and ensuring the public
safety of all people living and traveling in my jurisdiction, regardless of their
immigration status. I am also bound by my oath of this office to uphold the
Federal and Alabama Constitutions, as well as any laws enacted by the
Legislature.
3.
Birmingham is Alabama's largest city, located in central Alabama at
the foothills of the Appalachian Mountains. Birmingham hosts more than
212,000 residents, with over 658,000 residents living in Jefferson Country and
with over 1,212,000 residents living in the Birmingham-Hoover Metropolitan
Area, approximately one-quarter of Alabama's population. Birmingham is a
very diverse community, both demographically and economically. According
to the 2010 census figures, over seventy percent of Birmingham's residents
identify as African American, almost four percent identify as Latino, ten
percent identify as Asian, and two percent identify as belonging to another
non-majority race. Birmingham was once the primary industrial center of the
southern United States, and today, the city has become a medical research,
banking and service-based economy.
4.
I have reviewed HB 56, which was recently adopted by the Alabama
Legislature.
This law mandates that local police officers determine the
immigration status of any person they lawfully stop, detain or arrest in every

FOR UP TO

Sl.OOO.OC
REWARD

NO NAME REQUIRED

case in which there is reasonable suspicion that the person is in the country
unlawfully regardless of the severity of the suspected or actual offense at
issue. In such cases, my officers will be required to detain the target of the
stop pending confirmation of the individual's immigration status. If my
Department does not enforce this immigration law without exception, we risk
being sued by private parties for not fully enforcing the law. The threat and
real possibility of litigation will require that my officers determine the
immigration status of every person they stop, detain or arrest if they have any
reason to suspect that the person is in the country unlawfully.
5.
I have several concerns about enforcing this State immigration law
because of how it will affect my ability to set law enforcement priorities for
my Department, because of the lack of training my officers have on enforcing
immigration laws, because of the risk of litigation that my Department could
be subject to, because of the cost this law will impose on my Department, and
because of the harm this law will have for our community policing efforts and
ultimately for Birmingham's public safety.
6.
First, HB 56 undermines my ability to set law enforcement priorities
for my Department. As the Chief, I am responsible for setting my agency's law
enforcement priorities. Due to the economy and other factors such as
overcrowding in jails and the release of many non-violent detainees, burglaries
and thefts have risen. My officers have been tasked with suppressing crime by
establishing better community policing, being highly visible and partnering
with other local, state and federal law enforcement agencies to combat Part 1
Offenses. Above anything else, it is essential for my officers to be present and
visible on the street, so that people are aware that we are close by to help, and
to deter crime.
7.
HB 56 will undermine our ability to fulfill these priorities, for my
officers will be required to expend scarce resources on immigration matters at
the expense of combating our own municipal priorities. Sections 5 and 6 of
the law make clear that my officers must prioritize immigration enforcement
over everything else. This will cause a direct interference with my
Department's general work, and especially when we have to respond to an
emergency such as we did, and are still doing, after the tornado.
8.
We have over 500 officers working on any given day. My officers
must prioritize their policing capacity, which is why they have substantial
discretion in how to respond to suspected unlawful activity. Often when my
officers encounter a suspected criminal violation that does not pose an ongoing
threat to public safety, they will issue a citation, and then promptly return to
patrolling the streets. If in the discretion of the officer a suspect poses a
continuing threat to public safety, then the suspect will be detained and
arrested. However, when an arrest occurs, it takes the officer approximately 1
to 2 hours to book that person into the city or county jail, which includes

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documenting the arrest, processing any evidence seized that supports the
charge and/or which needs to be secured and/or the volume of defendants
being processed. During that time, the officer is unavailable for any other law
enforcement need that may exist in Birmingham. Thus, for example, in 2009
we issued 75,870 citations, and arrested 25,683 individuals. The careful
balancing of detaining when necessary, but issuing a citation where possible,
is fundamental to ensure we are able to respond to the most pressing needs that
arise in our city.
9.
HB 56 will dramatically alter this delicate formula. HB 56 will require
my officers to verifY the immigration status of those whom we stop or arrest if
we have reason to suspect they are in the country unlawfully. The law makes
clear that the only way to make such a verification is to place an inquiry with
the Federal authorities, but we have no guarantee of how quickly such a
verification will occur, and as the requests to Federal authorities increase, I
expect it will take longer and longer to get a response. My officers will be
forced to either detain the target of the stop on the side of the road while
awaiting verification, or book them into our jail's holding cell until
verification is received. If the suspect is determined to possibly be without
current immigration status, then we must arrest that person. This procedure
strips my officers of any discretion in the field, meaning that valuable
patrolling time will be compromised and our Department's priorities will
become much more difficult to achieve.
10.
Second, I am very concerned about how to train my officers to enforce
this law. My officers are comfortable establishing the existence of reasonable
suspicion as to criminal conduct generally, but they are not familiar with
reasonable suspicion as to immigration status. My officers have never
received training on Federal immigration law, and I am concerned that any
training provided by the State regarding the meaning of the Federal
immigration laws, or the new State immigration law, will not equip my
officers with the necessary knowledge and expertise that would allow them to
reasonably suspect when someone is in the country unlawfully.
11.
I am unaware of how to instruct my officers on enforcing HB 56
without taking into consideration factors such as the person's appearance and
manner of speaking. Sections 3 (10) and 12 of HB 56 contain a list of
documents which imply lawful presence, but this list establishes presumptions
only, it is not dispositive. Furthermore, the list is ambiguous. One item on the
list is any valid United States federal, state, or local government issued
identification document bearing a photographic or biometric identifier if
issued by an entity that requires proof of lawful presence in the United States
before issuance. I do not know how to instruct my officers on which
government entities require proof of lawful presence before issuance.

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12.
Third, I am very concerned that my Department, and other
Departments across the State, will become embroiled in costly litigation. HB
56 creates an impossible Catch-22 for my officers. On the one hand, the law
requires us to fully enforce the State immigration system as well as the Federal
immigration system, and if we fail to do so, sections five and six of the law
impose penalties of between $1,000 and $5,000 per day from the date that the
lawsuit was filed for each day the policy or practice is followed. This fine will
come out of my Department's budget, and because it is to be assessed from the
date of filing and not of service, the Department may be assessing a legal fine
for days even before we are notified of the lawsuit. On the other hand, I am
concerned that if my officers stop and detain a person with lawful status who
nevertheless was not carrying the correct identification document or had other
indicators of unlawful presence my officers could be sued for illegally
detaining that person as the officers await immigration verification. Any close
case where the status of a person is not obvious to the officer will pose this
risk to my Department.
13.
Fourth, I am concerned about the cost that will be imposed on the
Department by HB 56. When people are held in the Birmingham City Jail, it
cost approximately $282.88 per day to house them.
14.
Fifth, I am concerned about the effect HB 56 will have on my
Department's ability to engage immigrant and minority communities in
Birmingham, which is essential to keeping Birmingham safe and to solve
crimes that occur here. Also we are in communication with the citizens of the
Latino community. We do so by having regular telephone calls, visits and
email. We are regularly kept abreast of issues within the Latino community by
other activists as well. There are many supporters of our Department in the
community. We have gained respect and trust for each other. They are aware
of how to reach our Department and we know who to contact in order to get
the word out pertaining to services offered and other programs as needed. We
have also established "Block Watch" Captains. Due to some Latinos
experiencing language barriers, we have partnered with other organizations
and agencies such as, Interpreters and Translators Association of Alabama,
HICA and "The Burned" Community to help with the interpretation process.
We also have a wonderful relationship with Latino radio, newspaper and other
media.
15.
HB 56 will deeply undermine our Department's efforts to police all of
Birmingham in a fair and equal manner because we will be viewed as State
immigration officers, not law enforcement officers trying to protect everyone
in Birmingham.

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I declare under penalty of perjury and pursuant to 28 U.S.C. § 1746 that the
foregoing is true and correct.
Executed this .!LL~ay of July, 2011, in Binningha.m, Alabama

A~
Chief AC. Roper

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