Georgia Latino Alliance for Human Rights et al v. Deal et al

Filing 48

Amicus Curiae APPEARANCE entered by Dale M. Schwartz on behalf of ANTI-DEFAMATION LEAGUE. (Schwartz, Dale)

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Dale M. Schwartz
Dale M. Schwartz & Associates
St. 450 RiverEdge One
5500 Interstate North Parkway, NW
Atlanta, GA 30328
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Of Counsel:
Anti-Defamation League
605 Third Avenue
New York, NY 10158-3560
Telephone: [phone]
Facsimile: [phone]
Steven M. Freeman
[e-mail]
Steven C. Sheinberg
[e-mail]
Deborah Bensinger
[e-mail]
David L. Barkey
[e-mail]

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Attorneys for Anti-Defamation League
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF GEORGIA

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ATLANTA DIVISION

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Georgia Latino Alliance for Human
Rights, et al.,
Plaintiffs,

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vs.
Deal, et al.,
Defendants.

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1:11-cv-01804-TWT
BRIEF OF AMICUS CURIAE
THE ANTI-DEFAMATION
LEAGUE IN SUPPORT OF
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION

Preliminary Statement

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If well-ordered liberty means anything, it must mean that all persons should

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be afforded access to police protection if they become victims of hate crimes.

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Georgia House Bill 87, as amended (“HB 87”), impedes that access for all

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Latinos – United States citizens, lawful residents and undocumented immigrants

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alike. HB 87 poses a substantial threat of deterring Latinos from reporting crimes

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or serving as witnesses in criminal investigations by creating an environment of

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hostility and fear that threatens the existence of any cooperative relationship

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between law enforcement and the Latino community. This amicus brief provides

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additional context and information about a particular and devastating consequence

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of the rupture in police-community trust that HB 87 will inevitably cause – the

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creation of an underclass uniquely vulnerable to increased hate crimes and

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violence.

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As shown below, unless its enforcement is enjoined, HB 87 is substantially

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likely to cause irreparable harm by driving a wedge between law enforcement and

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communities whom they are entrusted to protect. That breach in trust will render

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the State’s Latino community uniquely vulnerable – an outcome fundamentally at

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odds with strong public policies embodied in federal and state law. Granting the

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preliminary injunctive relief that Plaintiffs seek will avert irreparable harm that

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HB 87 will otherwise inflict on policing in Georgia, and will advance the vital

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public interest in ensuring that federal anti-hate crimes statutes are enforced to the

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fullest extent of the law. See Winter v. Natural Res. Def. Council, Inc., 129 S. Ct.

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365, 376 (2008).
Argument

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I.

Federal Law Expressly Prohibits the Commission of Hate Crimes
Against People of Color, Including Latinos.
The Federal Hate Crimes Prevention Act of 2009 provides strong

prohibitions against the commission of hate crimes, imposing harsher sentences

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on those who commit unlawful acts against another, where the motivation in

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selecting the victim was based on the person’s actual or perceived race, color or

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national origin. 18 U.S.C. § 249. The act gives the United States Department of

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Justice the power to investigate and prosecute violent crimes fitting these criteria

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as violations of federal law in order to serve the Federal interest in eradicating
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bias-motivated violence, protecting the public interest, and securing substantial
justice, and evinces a strong federal policy against the commission of hate crimes.
18 U.S.C. § 249.

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The issue of hate crimes in our nation is very real. According to statistics

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gathered by the Federal Bureau of Investigation documenting hate crimes through

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2009, hate crimes were at their highest level since 2001 in 2008. In 2009 we saw a

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slight decrease in incidents of hate crimes reported, with 6,604 reported

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nationwide.1 Of those, 483 were motivated by the actual or perceived Hispanic

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Identity of the victim.2 While this is a decline from the 2008 number, it is an

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increase in the percentage of reported hate crimes attributed to motivation based

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on perceived Hispanic heritage.3 Last year, we saw the discriminatory impact of

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similar legislation when SB-1070 was passed in Arizona. The effect of that bill

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was to drive a wedge between local law enforcement agencies and the

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communities they were entrusted to protect; a study of Latino registered voters in

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the state, commissioned by the national Council of La Raza, 85% expressed fear

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that they would be racially profiled under the law, and 47% stated that the passage

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of the law would make them less likely to report a crime to law enforcement

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officials. This likely explains why the number of incidents of hate crimes reported

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in Arizona increased based on sexual orientation, religion, and race, while the

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number of ethnicity based crimes reported decreased.4 Validating such a

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connection, in April of 2011, nearly a year following the passage of SB 1070,

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Tucson police chief Roberto Villasenor was quoted as saying that, even despite

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it’s subsequent invalidation, SB 1070 "damages [law enforcement’s] capability to

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“Hate Crime Statistics: Incidents, Victims and Known Offenders by Bias Motivation, 2009” available at
http://www2.fbi.gov/ucr/hc2009/data/table_01.html (last visited June 10, 2011)
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Id.

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“Hate Crime Statistics: Incidents, Victims and Known Offenders by Bias Motivation, 2008” available at
http://www2.fbi.gov/ucr/hc2008/data/table_01.html (last visited June 10, 2011)
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“Hate Crime Statistics: Incidents, Victims and Known Offenders by Bias Motivation, 2009 - Arizona” available
at http://www2.fbi.gov/ucr/hc2009/data/table_13az.html (last visited June 10, 2011)

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obtain information to solve the crimes,” indicating his belief that reporting is
substantially affected by the passage of that and similar laws. 5

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Sadly, Georgia is one of the five states in the U.S. that has not enacted any

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hate crime legislation, and so statistics are not available to accurately indicate the

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frequency of crimes motivated by racial or ethnic characteristics of the victims as

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would be reported if such laws were in place.6 However, similar fears are invoked

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by HB 87 as were in Arizona by SB 1070, and it seems inevitable that the law will

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have a similar result on reporting of criminal activity by Latino immigrants, thus

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impeding the ability of law enforcement to serve their communities to the fullest

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extent.

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II.

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HB 87 Will Undermine the Latino Community’s Trust in Law
Enforcement, Eviscerating the Police’s Ability to Enforce Federal and
State Anti-Hate Crimes Laws.

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A.

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The Police Foundation, the International Association of Chiefs of Police

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Police Cannot Enforce the Law If Victims and Witnesses Are
Unwilling to Come Forward.

and the Major Chiefs Association have all expressed grave concerns that
deputizing local law enforcement officers to enforce immigration law undermines
the trust and cooperation of immigrant communities.7 For example, a 2009 report
by the Police Foundation states that “[i]mmigration enforcement by local police
undermines their core public safety mission, diverts scarce resources, increases
their exposure to liability and litigation, and exacerbates fear in communities
already distrustful of police.”8 According to Police Foundation President Hubert
Williams:

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“The
Unhappy
Anniversary
of
Arizona’s
Immigration
Law”
available
http://www.forbes.com/2011/04/26/immigration-law-anniversary.html (last visited June 10, 2011)

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“Hate Crime Report Card” available at http://www.humanrightsfirst.org/our-work/fighting-discrimination/hatecrime-report-card/hate-crime-report-card-the-united-states/ (last visited June 10, 2011)
See, e.g., Kozinets Decl. Ex. F, Arizona Association of Chiefs of Police Statement on Senate Bill 1070, available
at http://www.leei.us/main/media/AACOP_STATEMENT_ON_SENATE_BILL_1070.pdf (last visited June 21,
2010).
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Kozinets Decl. Ex. G, http://www.policefoundation.org/pdf/strikingRelease.pdf (last visited June 21, 2010).

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Police executives have felt torn between a desire to be
helpful and cooperative with federal immigration
authorities and a concern that their participation in
immigration enforcement efforts will undo the gains
they have achieved through community-oriented
policing practices directed at gaining the trust and
cooperation of immigrant communities. As one police
chief pointed out during the project, “How do you police
a community that will not talk to you?”9

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The Major Cities Chiefs Association agrees. According to its 2006 Position

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Statement:
Local agencies have worked very hard to build trust and
a spirit of cooperation with immigrant groups through
community based policing and outreach programs and
specialized officers who work with immigrant groups.
Local agencies have a clear need to foster trust and
cooperation with everyone in these immigrant
communities.
Assistance and cooperation from
immigrant communities is especially important when an
immigrant, whether documented or undocumented, is
the victim of or witness to a crime. These persons must
be encouraged to file reports and come forward with
information. Their cooperation is needed to prevent and
solve crimes and maintain public order, safety, and
security in the whole community. . . .

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Immigration enforcement by local police would likely
negatively effect and undermine the level of trust and
cooperation between local police and immigrant
communities. . . . Undoubtedly legal immigrants would
avoid contact with the police for fear that they
themselves or undocumented family members or 10
friends
may become subject to immigration enforcement.

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As was the case during the Arizona hearings regarding Senate Bill 1070,
the fear that granting law enforcement broad discretion to investigate and report
citizenship status of any state resident will deter criminal reporting and endanger
the Latino community is very real in Georgia. It is imperative to the safety of the
community that these lines of communication be kept open, and considered to be

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Id.

Kozinets Decl. Ex. H, Major Cities Chiefs Immigration Committee Recommendations, June 2006, available at
http://www.majorcitieschiefs.org/pdfpublic/MCC_Position_Statement_REVISED_CEF_2009.pdf
(emphasis
added) (last visited June 21, 2010).

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a measure of security, rather than risk, by those who could provide information

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regarding hate- and other bias-based crimes.

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B.

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Unless its enforcement is enjoined, HB 87 will create an underclass of

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people who have no meaningful access to police services out of fear that their

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perceived immigration status – whether relevant or not – will subject them to

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heightened law enforcement scrutiny whenever they come into contact with

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police.

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Georgia, HB 87 grants broad discretion to law enforcement officers, authorizing

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them to investigate the immigration status of any individual who they have

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“probable cause” to suspect to have committed any criminal violation. Such

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discretion serves to create a fear of racial profiling and detention without just

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cause by Latinos, whether they are legal or illegal immigrants or U.S. citizens. As

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a consequence, Latinos will be deterred from reporting or serving as witnesses

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regarding a range of criminal activities in the community, including hate crimes.

HB 87 Will Prevent Effective Protection from Hate Crimes

In its aim to deal with the issue of undocumented person living in

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ADL knows from long experience advocating for and training law

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enforcement on the implementation of hate crime laws that close cooperation

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between local law enforcement and minority communities is essential.11 If crime

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and immigration enforcement become intertwined, police may find “out of status”

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persons, or persons with non-citizen family members, hesitant to seek protection,

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to report crimes committed against them or to serve as witnesses in other crimes –

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compromising the police’s ability to keep the community safe. See Part II.A,

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supra.

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Moreover, when a bias-motivated crime is committed, the victim’s entire

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community may be left feeling victimized, vulnerable, fearful, isolated and

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See Motion for Leave to File Brief of Amicus Curiae Anti-Defamation League in Support of Plaintiffs’ Motion
for Preliminary Injunction, at 1-3; Kozinets Decl. Exs. K-M.

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unprotected by the law. The impact of the crime spreads far beyond the already

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terrible consequences for the individual victim.

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unreported or under-reported if HB 87 is permitted take effect, because victims

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and witnesses will hesitate to contact law enforcement if doing so will subject

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them heightened law enforcement scrutiny and possible detention, arrest or

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deportation. The “Illegal Immigration Reform and Enforcement Act of 2011”

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will endanger the Latino community in Georgia by creating an atmosphere of fear

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and distrust, and will serve to cause more harm than it will prevent.

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III.

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Victims, Their Communities and the Public Will Be Irreparably
Harmed by the Under-Reporting of Hate Crimes that Will Inevitably
Result from HB 87, and the Public Interest Strongly Supports
Enjoining the Statute’s Enforcement
ADL has monitored and exposed the increasingly hateful anti-immigrant,

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Yet hate crimes will go

anti-Latino and anti-Mexican rhetoric that has surrounded the national debate on

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immigration reform.12 HB 87 was passed against this backdrop of anger and

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frustration in Georgia. The bill’s principal proponent, Governor Nathan Deal, has

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voted to strengthen restrictive measures on immigrants in every issue up for

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decision during his term, including voting against a measure that would have

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allowed immigrants an additional four months to pursue legal residency.13 This

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bill would further the restrictive, anti-immigrant sentiment felt by the Latino

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community, and place greater stress on their relationship with local government.

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In this climate, it is critically important that law enforcement be fully able

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to police the laws against the commission of hate crimes directed at the Latino

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community. Yet, HB 87 grants law enforcement officers considerable discretion

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to pull over any person for “probable cause” and investigate the citizenship status

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of them and all accompanying persons, and makes it a crime to be found

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Kozinets Decl. Ex. N, ADL Report: “Immigrants Targeted: Extremist Rhetoric Moves into the Mainstream,”
available at http://www.adl.org/civil_rights/anti_immigrant/ (last visited June 21, 2010).
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“Nathan Deal on Immigration” available at
http://www.ontheissues.org/Governor/Nathan_Deal_Immigration.htm (last visited June 10, 2011).

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transporting any undocumented immigrant. Many legal residents have relatives or

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friends who are undocumented, and fear that they will be in danger of being taken

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into custody by officers because they themselves appear to be “illegal aliens.”

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This can only act to deter those who fear such interactions from reporting crime

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related information, or victimization by another member of the community. By

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putting police and large segments of the community potentially at odds with one

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another, HB 87 is likely to create a large population that lacks access to the type

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of basic police services that the rest of the community takes for granted. This lack

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of protection – combined with the atmosphere of hateful rhetoric that has marked

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much of the immigration debate – will create a law enforcement underclass that is

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vulnerable to the commission of bias-motivated violence and crime. Such a result

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risks institutionalizing precisely the kinds of harms that the anti-hate crimes laws

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were designed to prevent. It is contrary to the strong public policies against hate

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crime embodied in federal law, and is inimical to the public’s interest in

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advancing public safety and security.
Conclusion

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For the foregoing reasons, HB 87 will inflict irreparable harm if its

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enforcement is not enjoined, and the public interest strongly supports entry of a

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preliminary injunction.

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RESPECTFULLY SUBMITTED this 14th day of June 2011.

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/S/_________________________
_______________ ______
Dale M. Schwartz
Dale M. Schwartz & Associates
St. 450 RiverEdge One
5500 Interstate North Parkway, NW
Atlanta, GA 30328
GA BAR# 631000

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Steven M. Freeman
Steven C. Sheinberg
Deborah Bensinger
Anti-Defamation League
605 Third Avenue
New York, NY 10158-3560

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Attorneys for Anti-Defamation League

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CERTIFICATE OF SERVICE

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I hereby certify that on June 14, 2011, I caused the attached document to be

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electronically transmitted to the Clerk’s Office using the CM/ECF System for

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filing and transmittal of a Notice of Electronic Filing to the following CM/ECF

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Registrants:

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Samuel S. Olens

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Kathleen Pacious

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Devon Orland

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Andrew H. Turner

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Chara Fisher Jackson

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Charles H. Kuck

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Daniel Werner

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Danielle M. Conley

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Georgia Brian Spears

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Mary C. Bauer

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Michelle R. Lapointe

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Naomi Ruth Tsu

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Robert Keegan Federal, Jr.

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Samuel Brooke

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I further certify that I have served, by U.S. mail, first class postage prepaid,

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the following non-CM/ECF participants:

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Andre I. Segura
American Civil Liberties Union Foundation-NY
125 Broad Street
18th Floor
New York, NY 10004

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Azadeh N. Shahshahani
ACLU of Georgia
Building 400, Suite 425
1900 The Exchange, SE
Atlanta, GA 30339
Cecillia D. Wang
ACLU Immigrant's Rights Project
39 Drumm Street
San Francisco, CA 94111
Elora Mukherjee
ACLU Racial Justice Program
18th Floor
125 Broad Street
New York, NY 10004
Jonathan Blazer
National Immigration Law Center
Suite 1400
405 14th Street
Oakland, CA 94612
Karen C. Tumlin
National Immigration Law Center
Suite 2850
3435 Wilshire Boulevard
Los Angles, CA 90010
Katherine Desormeau
ACLU Immigrant's Rights Project
39 Drumm Street
San Francisco, CA 94111
Linton Joaquin
National Immigration Law Center
Suite 2850
3435 Wilshire Boulevard
Los Angles, CA 90010
Melissa S. Keaney
National Immigration Law Center
Suite 2850
3435 Wilshire Boulevard
Los Angles, CA 90010
Nora Preciado
National Immigration Law Center
Suite 2850
3435 Wilshire Boulevard
Los Angles, CA 90010

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Omar C. Jadwat
American Civil Liberties Union Foundation-NY
125 Broad Street
18th Floor
New York, NY 10004
Sin Yen Ling
Asian Law Caucus
55 Columbus Avenue
San Francisco, CA 94111
Tanya Broder
National Immigration Law Center
Suite 1400
405 14th Street
Oakland, CA 94612
This the 14th day of June, 2011.

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/S/_________________________

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DALE M. SCHWARTZ

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Attorney for Anti-Defamation League

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Suite 450 RiverEdge One
5500 Interstate North Parkway, NW
Atlanta, GA 30328
[phone] (Telephone)
[phone] (Facsimile)
Email: [e-mail]

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CERTIFICATE OF COMPLIANCE

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Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has been

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prepared in compliance with Local Rule 5.1(B) in 14-point New Times Roman

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typeface.

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This the 14th day of June, 2011.

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/S/_________________________

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DALE M. SCHWARTZ
Attorney for Anti-Defamation League

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Suite 450 RiverEdge One
5500 Interstate North Parkway, NW
Atlanta, GA 30328
[phone] (Telephone)
[phone] (Facsimile)
Email: [e-mail]

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