United States of America v. State of California et al

Filing 48

AMICI CURIAE BRIEF by Criminal Justice Legal Foundation and Michael Rushford in SUPPORT of 2 Motion for Preliminary Injunction. Attorney Scheidegger, Kent Stephen added. (Scheidegger, Kent) Modified on 4/6/2018 (Donati, J).

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KENT S. SCHEIDEGGER (SBN 105178)
KYMBERLEE C. STAPLETON (SBN 213463)
CRIMINAL JUSTICE LEGAL FOUNDATION
2131 L Street
Sacramento, CA 95816
[phone] (Voice)
[phone] (Fax)
[e-mail]
[e-mail]

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Attorneys for Amici Curiae CJLF & Michael Rushford

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,
v.

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STATE OF CALIFORNIA, et al.,
Defendants.

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Case No. 2:18-CV-00490-JAM-KJN
BRIEF AMICI CURIAE OF THE
CRIMINAL JUSTICE LEGAL
FOUNDATION AND MICHAEL
RUSHFORD SUPPORTING
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
Date: June 20, 2018
Time: 10:00 a.m.
Judge: The Honorable John A. Mendez

The Criminal Justice Legal Foundation (CJLF) and Michael Rushford submit this

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brief amici curiae in support of the Plaintiff’s motion for a preliminary injunction. The

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parties have consented to the filing of this brief. Under Federal Rule of Appellate Proce-

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dure (FRAP) 29(a)(2) and this court’s order of March 27, 2018, adopting FRAP 29(a) for

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amicus briefs in this case, no motion for leave to file is required.

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Per FRAP 29(a)(4)(A) and (E), amici certify that CJLF has no parent corporation or

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stockholders, that this brief was written entirely by counsel for amici and not counsel for

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any party, and that no person or entity other than CJLF contributed money to fund prepar-

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ing or submitting of this brief.

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BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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INTEREST OF AMICI CURIAE

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Amicus CJLF is a California non-profit corporation dedicated to protecting the

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interests of victims of crime. It is an employer subject to provisions of 8 U.S.C. § 1324a

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and California Assembly Bill 450 of 2017 (AB 450). Like any corporate employer, it must

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operate through its officers and other employees.

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Amicus Michael Rushford is the President of CJLF and a citizen of the United

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States. His responsibilities include the employment matters of CJLF, and he is “a person

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acting on behalf of the employer” within the meaning of sections 1, 2, and 5 of AB 450.

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CJLF and Mr. Rushford endeavor to assist law enforcement, both state and federal, when

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their assistance is useful and appropriate. They also endeavor to ensure that CJLF’s

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operations are in compliance with both federal and state law.

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AB 450 impairs the ability of amici to assist federal law enforcement and to ensure

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their own compliance with federal law, as explained further in the body of the brief. Such

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interference is contrary to the Fourteenth Amendment of the Constitution of the United

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States.

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SUMMARY OF ARGUMENT

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The Privileges or Immunities Clause of the Fourteenth Amendment has been

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construed very narrowly by the Supreme Court, but it has not been stripped of all meaning.

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Among the privileges that the Supreme Court has found included is the duty and right of

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every citizen to assist federal law enforcement and to give information regarding viola-

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tions.

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By the same principle, citizens have a right and duty to ensure their own compli-

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ance with federal law. Because the contours of the law are often uncertain and underlying

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facts are often unclear, ensuring compliance sometimes means going further than the

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measures that may, in retrospect, be found to meet the bare minimum for compliance. A

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state law that punishes citizens for doing anything more than the bare minimum required

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by federal law therefore, in practice, impairs the ability of the citizens to ensure their own

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compliance.

BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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ARGUMENT

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I. AB 450 is a “law which . . . abridge[s] the privilege or immunities of citizens of the

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United States” in violation of the Fourteenth Amendment.

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The first clause of the second sentence of section 1 of the Fourteenth Amendment

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provides, “No State shall make or enforce any law which shall abridge the privileges or

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immunities of citizens of the United States . . . .” That language was quickly given a

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narrow construction in the Slaughter-House Cases, 83 U.S. 36 (1873), an interpretation

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that was disputed at the time, see id. at 96 (Field, J., dissenting), and remains doubtful to

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this day. See McDonald v. City of Chicago, 561 U.S. 742, 756 (2010). Even so, the

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narrow interpretation remains binding precedent until the Supreme Court overrules it,

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which it has not yet done. See id. at 758.
Narrow as the Slaughter-House interpretation is, though, it did not strip that clause

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of all meaning. The privileges and immunities protected by this provision are those that

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“owe their existence to the Federal government, its national character, its Constitution, or

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its laws.” Slaughter-House Cases, 83 U.S. at 79. One of the few privileges that the high

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court has found to meet that description is implicated in this case.

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In 1894, Henry Worley of Georgia reported a moonshiner to a deputy United States

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marshal. In re Quarles, 158 U.S. 532, 532 (1895). Shortly afterward, two co-conspirators

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of the moonshiner, Quarles and Butler, beat and attempted to murder Worley. See id. at

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533. They were charged with violation of section 5508 of the Revised Statutes, which

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“provides for the punishment of conspiracies ‘to injure, oppress, threaten, or intimidate any

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citizen in the free exercise or enjoyment of any right or privilege secured to him by the

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Constitution or laws of the United States, or because of his having so exercised the

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same.’ ” Id. at 535.1 After conviction, they moved for arrest of judgment on the ground

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that Worley had no federally protected right to report the revenue violation to the marshal.

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See id. at 534.

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The Supreme Court held that there was indeed a federally protected right involved:

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The current statute is 18 U.S.C. § 241.

BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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“It is the duty and the right, not only of every peace officer of the United

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States, but of every citizen, to assist in the prosecuting, and in securing the punish-

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ment of, any breach of the peace of the United States. . . . It is likewise his right

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and his duty to communicate to the executive officers any information which he has

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of the commission of an offence against those laws . . . .” Id. at 535.

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“The right of a citizen informing of a violation of law, like the right of a

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prisoner in custody . . . to be protected against lawless violence, . . . arises out of the

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creation and establishment by the Constitution itself of a national government,

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paramount and supreme within its sphere of action. United States v. Logan, 144

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U.S. 294. Both are . . . ‘privileges and immunities arising out of the nature and

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essential character of the national government, and granted or secured by the

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Constitution of the United States.’ In re Kemmler, 136 U.S. 436, 438.” Id. at 536.

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“The right of the private citizen who assists in putting in motion the course of

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justice” exists for both the citizen and the government. Id. at 536. “[I]t is the duty of [the

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federal] government to see that he may exercise this right freely . . . . This duty does not

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arise solely from the interest of the party concerned, but from the necessity of the govern-

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ment itself . . . .” Id. In the present case, the United States correctly invokes federal

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supremacy for its side of this coin. See Plaintiff’s Motion for Preliminary Injunction 13

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(“MPI”). The Privileges or Immunities Clause of the Fourteenth Amendment is the

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citizen’s side of the same coin. A state law against voluntary cooperation with federal law

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enforcement violates constitutional protections of both the federal government and the

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private citizen.

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With this background, it is evident that AB 450 violates the rights of citizens.

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“Existing federal law already requires immigration agents to obtain a warrant to search a

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worksite and a subpoena to access employee records, unless the employer grants consent.

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This bill effectively takes away the employer’s option to grant consent.” Cal. Assem. Com.

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on Judiciary, Rep. on Assem. Bill No. 450 (2017-2018 Reg. Sess.) April 22, 2017, p. 7.

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BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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In Quarles, Henry Worley was not subpoenaed to come forward with his informa-

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tion. He came forward voluntarily. Quarles holds that such voluntary cooperation is a

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privilege of citizens of the United States. Therefore, the Fourteenth Amendment expressly

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forbids any state to “make or enforce” any law which abridges that privilege. AB 450 is

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unconstitutional.

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II. AB 450 impairs employers’ ability to confirm their own compliance

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with federal law.

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If citizens have a right to inform federal authorities of violations of federal law by

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others, as discussed in Part I, supra, it stands to reason that they have a right to take the

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steps needed to confirm their own compliance with the law. Amici have not found any

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precedent on this point, probably because federal-state law conflicts are typically analyzed

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under the Supremacy Clause. Even so, the Fourteenth Amendment is an independent

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provision granting protection directly to the citizen.

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At several points, AB 450 by its terms forbids everything that federal law does not

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require, leaving no cushion at all to allow for any uncertainties in the law or difficulties in

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proof. Government Code section 7285.1(a) prohibits consent to entry of immigration

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agents right up to the limit that federal law requires allowing entry. Section 7285.2(a) does

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the same for inspection of records.

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Federal law forbids knowingly hiring an unauthorized alien. See 8 U.S.C.

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§ 1324a(a)(1)(A). A person who does not knowingly hire unauthorized aliens would be

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very ill-advised to rely on the “knowingly” element and fail to take steps to avoid hiring

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unauthorized aliens at all. Not knowing and proving one did not know are two very

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different things, and innocent people can be ruined by the difficulty of defending them-

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selves when an element is subjective. The section applies to entities as well as individuals,

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and proving an absence of knowledge entity-wide could well be impossible.

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Paragraph (a)(1)(B) of the same section forbids hiring without complying with the

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verification requirements. While in theory a renewed verification would not be necessary

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BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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if one could be certain that the initial verification was done and done correctly, in the real

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world incomplete documentation and uncertainty about past compliance are not unusual.

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Labor Code section 1019.2(a) forbids all reverification of “the employment

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eligibility of a current employee at a time or in a manner not required by” 8 U.S.C.

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§ 1324a(b). That federal law includes vague standards such as whether a document

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“reasonably appears on its face to be genuine,” § 1324a(b)(1)(A), and whether the em-

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ployer made “a good faith attempt to comply.” § 1324a(b)(6)(A). If the initial verification

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was done by an employee who is no longer with the company, reasonableness and good

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faith may be impossible to determine.

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An employer who is justifiably uncertain whether initial verifications were done

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correctly can only be sure of compliance with federal law by redoing them. Yet if the do-

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over is not required by federal law then it is a violation of state law. One approach an

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employer might reasonably use is to cooperatively allow immigration agents to check its

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records and then work with them to return to compliance. Yet that, too, is forbidden by AB

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450. See Cal. Gov’t Code § 7285.2.

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In other areas of law, rules have developed in recognition of the need to accommo-

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date people’s inability to be certain which side of a fuzzy line they are on. Thus it is said

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that freedom of speech needs “breathing space,” see NAACP v. Button, 371 U.S. 415, 432-

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433 (1963), so that vague laws are struck down even if the complaining party’s own speech

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is not found to be within the First Amendment’s protection. Qualified immunity protects

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peace officers who reasonably believe their actions to be legal even if it is ultimately held

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that they were not. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). AB 450 makes no

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such allowance. Actions of employers are forbidden by state law right up to the vaguely

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defined limit of what is required by federal law.

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The privileges and immunities of citizens of the United States include those that

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arise from the existence of the federal government, see supra at 3, and those surely include

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compliance with federal law. A state law which does not allow voluntary actions on the

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part of a citizen to ensure his own or his organization’s compliance with federal law is

BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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inconsistent with those privileges and immunities. As with the prohibition on reporting

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violations, the Fourteenth Amendment forbids any State to “make or enforce” such a law.

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CONCLUSION
Sections 1, 2, and 5 of AB 450, Cal. Gov’t Code §§ 7285.1 and 7285.2, and Cal.

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Labor Code § 1019.2, should be declared unconstitutional, and defendants should be

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enjoined from enforcing them. Given the Plaintiff’s high probability of success on the

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merits, Defendants should be preliminarily enjoined from enforcing these provisions.

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Respectfully submitted this 6th day of April, 2018:

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By: /s/ Kent S. Scheidegger
Attorney for Amici Curiae
Criminal Justice Legal Foundation &
Michael Rushford

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BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2018, I electronically transmitted the foregoing

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document to the Clerk’s Office using the U.S. District Court for the Eastern District of

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California’s Electronic Document Filing System (ECF), which will serve a copy of this

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document upon all counsel of record.

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By: /s/ Kent S. Scheidegger
Attorney for Amici Curiae
Criminal Justice Legal Foundation &
Michael Rushford

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