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

Filing 65

MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction by Georgia Association of Latino Elected Officials with Brief In Support by GALEO. (Attachments: # 1 Brief Brief in Support)(Rohan, Douglas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHEN DISTRICT OF GEORGIA
ATLANTA DIVISION

Georgia Latino Alliance for Human

)

Rights, et al.,

)
)

Plaintiffs

)
) Case No. 1:11-cv-1804-TWT

v.

)

Governor Nathan Deal, et al.,

)
)

Defendants.

)
)

AMICUS CURIAE GALEO BRIEF IN SUPPORT OF THE PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION

i

TABLE OF CONTENTS - INDEX

STATEMENT OF INTEREST OF GEORGIA ASSOCIATION OF LATINO
ELECTED OFFICIALS.............................................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................4
A. HB 87 Will Disproportionately Harm Certain Communities of Color and
Encourage Racial Profiling. ...................................................................................4
2. Local law enforcement officials are unequipped to enforce HB 87...........8
3. Enforcement of HB 87 will disproportionately affect communities of color.
......................................................................................................................... 12
B. HB 87 Threatens Public Safety in Georgia.................................................... 14
1. Enforcement of HB 87 will erode trust between communities of color and
law enforcement.............................................................................................. 15
2. HB87 will produce a chilling effect on the reporting of crime and
cooperation in police investigations, jeopardizing the public safety of all
Georgians. ....................................................................................................... 18
3. HB 87 will also chill cooperation in court cases and criminal investigations.
......................................................................................................................... 22
4. HB 87 will particularly undermine community safety by increasing
minorities’ vulnerability to hate crimes. ......................................................... 23
CONCLUSION ....................................................................................................... 25

ii

TABLE OF CONTENTS - AUTHORITY
Cases

Pages

Terry v. Ohio,
392 U.S. 1 (1968).....................................................................................................................4
STATUTES
111th Cong. 77-78 (2009)..............................................................................................................9
8 U.S.C. §§ 1101 et seq..................................................................................................................9
The Commerce Clause, Art. I, Sec. 8, cl. 3 of the U.S. Constitution ............................................2
U.S. Const., Art. 1, § 8, cl. 3, 4 ......................................................................................................9
U.S. Constitution............................................................................................................................2
OTHER AUTHORITIES
Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement
and Civil Liberties (Mary Malina ed., 2009), available at
http://www.policefoundation.org/pdf/strikingabalance/Narrative.pdf...................................14
Anthony E. Mucchetti, Driving While Brown: A Proposal for Ending Racial Profiling in
Emerging Latino Communities Harv. Latino L. Rev. 1, 22 (2005) .......................................22

Associated Press, Salt Lake Police Chief Chris Burbank to Congress: Some Utah
legislatures push racist agenda, DESERET NEWS, June 18, 2010 ..........................................11
Caroline Wolf Harlow, Bureau of Justice Statistics, Hate Crime Reported by Victims and
Police 4 (Nov. 2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/hcrvp.pdf........23
Carrie Arnold, Racial Profiling in Immigration Enforcement: State and Local
Agreements to Enforce Federal Immigration Law, 49 ARIZ. L. REV. 113, 134-135
(2007) .......................................................................................................................................7
Craig E. Ferrell Jr., Immigration Enforcement: Is It a Local Issue?, The Police Chief: The
Professional Voice of Law Enforcement (Feb. 2004), available at

iii

http://www.lwvil.org/downloadimm/lwvil_immigration_study_second_packet_police_chief
_magazine.pdf..................................................................................................................19, 20
D.L. Hawley, The Powers of Local Law Enforcement to Enforce Immigration Laws ...................7
David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black”
Matters, 84 Minn. L. Rev. 265, 326 (1999) ...........................................................................21
Enforcing Immigration Law: The Role of State, Tribal, and Local Law Enforcement,
International Assoc. of Chiefs of Police, Nov. 30, 2004, available at
http://www.theiacp.org/Portals/0/pdfs/Publications/ImmigrationEnforcementconf.pdf
........10
Gail Pendleton, Local Police Enforcement of Immigration Laws and its Effects on Victims of
Domestic Violence, Domestic Violence and Immigration in the Criminal Justice System,
ABA Commission on Domestic Violence, available at http://www.mcadsv.org/webinars/IR2007-April/VI/BI%20Law%20Enforcement%20CJS.pdf ...............................................18, 21
Heidi Beirich, S. Poverty Law Ctr., The Year in Nativism,
Intelligence Report, Spring 2010, available at http://www.splcenter.org/getinformed/intelligence-report/browse-all-issues/2010/spring/the-year-in-nativism ..............24
Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local
Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965
(2004)……………………………………………………………………….……………….12
Davidson & Francisco Dueñas, Arizona Law Hurts Us All, Advocate, May 5, 2010, available at
http://advocate.com/Politics/Commentary/Lambda_Legal_Arizona_Law_Hurts_Us_All/......24
Jones Moy and Brent Archibald, Reaching English as a Second Language Communities: Talking
with the Police, The Police Chief Magazine (Vol. 72, No. 6, June 2005), available at
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_
id=614&issue_id=62005........................................................................................................21
Keith Aoki, "Foreign-ness" & Asian American Identities: Yellowface, World War II
Propaganda, and Bifurcated Racial Stereotypes....................................................................6
Kevin R. Johnson, ESSAY: How Racial Profiling in America Became the Law of the
Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for
Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1039 (April 2010) .......................................6
Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship ............................5

iv

King County Dep’t of Pub. Health, Safety and Hate Crimes, Oct. 7, 2008,
http://www.kingcounty.gov/healthservices/health/personal/glbt/HateCrime.aspx................24
L.A. Police Dep’t, Chief of Police Special Order No. 40 (Nov. 27, 1979), available at
http://www.lapdonline.org/get_informed/pdf_view/44798 ..................................................16
L.A. Police Dep’t, LAPD Manual Vol. 4 § 264.50, available at
http://www.lapdonline.org/lapd_manual/volume_4.htm#264.50 (last visited May 9,
2011) ......................................................................................................................................16
Los Angeles Police Department’s Special Order No. 40.......................................................15, 16
M.C.C. homepage, available at http://www.majorcitieschiefs.org/ .............................................10
M.C.C. Position Statement...........................................................................................................10
Nancy Morawetz & Alina Das, Legal Issues in Local Police Enforcement of Federal
Immigration Law, paper presented at the Police Foundation conference, The Role
of Local Police: Striking a Balance Between Immigration Enforcement and Civil
Liberties, Washington, DC, August 21, 2008 ........................................................................13
Nat’l Network for Immigrant & Refugee Rights, Over-Raided, Under Siege: U.S.
Immigration Laws and Enforcement Destroy the Rights of Immigrants 36 (2008) ...............19
Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness," and Racial
Hierarchy in American Law ....................................................................................................6
New Americans in the Beehive State, IMMIGRATION POLICY CENTER, July 1, 2010,
available at http://www.immigrationpolicy.org/just-facts/new-americans-beehivestate ........................................................................................................................................10
Portrait of Injustice: the Impact of Raids on Families, Workers and Communities, Report from
the National INS Raids Task Force of the National Network for Immigrants and Refugee
Rights, at 33 (1997) ..............................................................................................................21
Race & Justice, COPS Evaluation Brief No. 1: Promoting Cooperative Strategies to
Reduce Racial Profiling 21 (2008) ........................................................................................15
Randall Kennedy, RACE, CRIME AND LAW (1997) ........................................................................7
S. Poverty Law Ctr., Under Siege Life for Low-Income Latinos in the South 6 (Apr.
2009), available at http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf
...............................................................................................................................................19

v

S. Poverty Law Ctr., Nativist Extremist Groups 2010, http://www.splcenter.org/getinformed/intelligence-report/browse-all-issues/2011/spring/the-year-in-nativism/nativistextremists .............................................................................................................................23
S. Poverty Law Ctr., New SPLC Report: “Patriot” Groups, Militias Surge in Number in the Past
Year, Mar. 2, 2010, http://www.splcenter.org/get-informed/news/splc-report-number-ofpatriot-groups-militias-surges-by-244-in-past-year .............................................................23
Secure Communities, U.S. Immigration and Customs Enforcement,
http://www.ice.gov/secure_communities/ (last visited May 19, 2011) ................................16
Susan Shah, Insha Rahman, and Anita Khashu, Overcoming Language Barriers: Solutions for
Law Enforcement (Vera Institute of Justice, 2007), available at
http://www.justice.gov/crt/lep/resources/vera_translating_justice_final.pdf .......................20
Value Georgia, available at http://www.valuegeorgia.com/......................................................2
Thomas M. Guterbock et al., Evaluation Study of Prince William County Illegal Immigration
Enforcement Policy, at xi, 76-78 (2009) ................................................................................16
Trevor Gardner II & Aarti Kohli, The C.A.P. Effect: Racial Profiling In The Ice Criminal
Alien Program, The Chief Justice Earl Warren Institute on Race, Ethnicity and
Diversity, UC Berkeley School of Law (Sept. 2009) ............................................................11
U.S. Census Bureau, American Factfinder, Subject Table S0501, Georgia, available at available
at http://quickfacts.census.gov/qfd/states/13000.html............................................................12
“We’re Not Feeling Any Safer”: Survey Results Show Negative Impacts from ICE
Involvement with Local Police, California Immigrant Policy Center, University of
California, Berkeley Law (Summer 2010), available at
http://caimmigrant.org/document.html?id=322/....................................................................17

vi

STATEMENT OF INTEREST OF GEORGIA ASSOCIATION OF LATINO
ELECTED OFFICIALS
The Georgia Association of Latino Elected Officials (“GALEO”), is a
statewide non-profit and non-partisan organization dedicated to greater civic
engagement and leadership development of the Latino community across Georgia.1
www.galeo.org. GALEO submits this brief in support of Plaintiff’s motion for
preliminary injunction because Georgia’s House Bill (“HB”) 87, the "Illegal
Immigration Reform and Enforcement Act of 2011,” will create dangerous
precedent and undermine the constitutional and civil rights of all people within
Georgia.
The impact of HB 87’s state-law system for the regulation of immigration
will be extensive and pervasive. HB 87 creates a vehicle for immigration
enforcement that is not only unconstitutional, but that encourages egregious
violations of the rights of Georgia’s residents and visitors. Amici write with
particular concern about the disproportionate and damaging effect on Georgia’s
communities of color, who will be unfairly targeted and alienated by HB 87.

1

INTRODUCTION
“Immigration is a complex policy issue and should be addressed at the federal
level… Georgia is the birthplace of civil rights and we value our traditions of
inclusion, equality and justice. Our faiths teach us to welcome and love our
neighbors, and we live by those teachings. We are bound by our long history of
social justice to adopt a humane approach to immigration.”1 This quote from
the Value Georgia—a statement of values meant to address the problems with
adopting an immigration reform on the state level— succinctly captures the clear
demarcation of authority over immigration enforcement, which falls solely under
the federal government’s jurisdiction pursuant to the U.S. Constitution.[1]
However, the recent passage of HB 87 directly contradicts this constitutional
mandate by giving local law enforcement agencies the right to question and arrest
people for perceived immigration violations.
HB 87’s nickname as the “show me your papers” law accurately describes
the substance of the law: it compels all people within Georgia—residents,
visitors, and tourists alike—to carry identification papers at all times to prove

1

The Value Georgia statement, which has been endorsed by many public leaders since early
2011, sets forth five values meant to guide Georgia’s immigration discussion: storng economy,
law enforcement, families, rule of law, and traditions. See The Value Georgia, available at
http://www.valuegeorgia.com/
[1]
See The Commerce Clause, Art. I, Sec. 8, cl. 3 of the U.S. Constitution; see also the
Naturalization Clause, Art. I, Sec. 8, cl. 4; the Migration and Importation Clause, Art. I, Sec. 9,
cl. 1; and the War Power, Art I, Sec. 8, cl. 11.

2

their U.S. citizenship or immigration status. Without papers, a person risks
extensive investigation and protracted detention until his or her status is verified.
HB 87 mandates police to request identification documents of all persons they
stop or arrest. The law further authorizes law enforcement officials to investigate
and detain a person if they have “probable cause” to question the lawfulness of
the person’s immigration status. HB 87 is unconstitutional and threatens the civil
rights of all persons in Georgia.
The substance of this Amicus Brief denounces Georgia’s Illegal
Immigration Reform and Enforcement Act of 2011 and highlights the adverse
effects that enforcement of HB 87 will inevitably impart on communities of
color, demonstrating how the law will unfairly target and disproportionately
affect them. HB 87 creates dangerous precedent and fundamentally undermines
the civil rights of those residing or traveling in Georgia for the following reasons:
•

HB 87 encourages racial profiling and targets communities of color: Since

the criteria for “probable cause”[2] is not defined, HB 87 invites discrimination
and profiling based on impermissible factors, such as race, ethnicity, or Englishspeaking ability. Local law enforcement officials lack sufficient training to
adequately enforce immigration at the local level.

3

•

HB 87 destroys trust in law enforcement and threatens to chill reporting of

crimes: The law will diminish public safety and trust in local law enforcement.
Fearing that every encounter with authorities will lead to interrogation about
their immigration status and possible detention, immigrants, non-residents, and
people of color will hesitate to contact authorities with information about crimes
committed against them or crimes they witnessed.
For these reasons, this Court should grant Plaintiff’s motion for
preliminary injunction to bar enforcement of Georgia’s Illegal Immigration
Reform and Enforcement Act of 2011.

ARGUMENT
A. HB 87 Will Disproportionately Harm Certain Communities of Color and
Encourage Racial Profiling.
1. Enforcement of HB 87 cannot be executed in a race-neutral fashion.
The U.S. Supreme Court has held that reasonable suspicion “may not
apply merely because a person . . . is of a suspected race or ethnicity.” Terry
v. Ohio, 392 U.S. 1 (1968). HB 87, which cannot be applied in a nondiscriminatory manner, directly violates this important judicial precedent.

4

HB 87 invites law enforcement to target certain people based on their race,
ethnicity, and other disparate factors, due to assumptions that members of certain
minority groups are more likely to be unlawfully present in the United States
and/or to engage in illegal behavior. The statute’s arguably facially neutral
language fails to mitigate the harm from the substantial bias that will occur if the
law is enforced.
A discussion of HB 87’s key provisions illustrates how the statute will inevitably
lead to profiling and harassment of communities of color. In Section 8 of HB 87,
Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to
searches and seizures, is amended by adding a new article that permits law
enforcement officials to verify immigration status at any investigation of a criminal
suspect if they are unable to provide one of five delineated identification
documents. The officer is given discretion as to when he has probable cause to
suspect a criminal suspect might be an undocumented immigrant, and is also given
discretion in using any reasonable means to determine a suspects immigration
status. .[3]
As a result, the vague and ambiguous nature of the law opens the door to
selective enforcement against people presumed to look or sound “foreign,” based

[3]

. During any investigation of a criminal suspect by a peace officer, when such officer has
probable cause to believe that a suspect has committed a criminal violation, the officer shall be
authorized to seek to verify such suspect's immigration status when the suspect is unable to
provide one of the following: (1) A secure and verifiable document as defined in Code Section
50-36-2; (2) A valid Georgia driver's license; (3) A valid Georgia identification card issued by
the Department of Driver Services; (4) If the entity requires proof of legal presence in the United
States before issuance, any valid driver's license from a state or district of the United States or
any valid identification document issued by the United States federal government; (5) A
document used in compliance with paragraph (2) of subsection (a) of Code Section 40-5-21; or
(6) Other information as to the suspect's identity that is sufficient to allow the peace officer to
independently identify the suspect HB 87 § 17-5-100.

5

on impermissible external characteristics.[4] Many people, particularly those of
color, will face further investigation and detention during routine encounters with
law enforcement officials.

[5]

Even petty offenses (such as routine traffic stops)

provide ample pretext to stop, investigate, and detain a person.
HB 87 Section § 17-5-100 (c) (Authorization to determine lawful presence
in United States) provides that a law enforcement officer may use any reasonable
method to determine immigration status including requiring the detained
individual to present (1) one of the four officially prescribed documents to the
law enforcement officer, or (2) “other information that is sufficient to allow the
peace officer to independently identify the suspect.” No guidelines are provided
as to what other information would be sufficient and as such the determination is
left entirely to the discretion of the detaining officers.
[4] 5

See Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2
HARV. LATINO L. REV. 101, 117-29 (1997). Groups other than Latinos are designated as
being "foreign." Asian Americans, at various times in U.S. history, have been subject to similar
treatment. See Keith Aoki, "Foreign-ness" & Asian American Identities: Yellowface, World
War II Propaganda, and Bifurcated Racial Stereotypes, 4 ASIAN PAC. AM. L.J. 1, 9-13
(1996) (analyzing legal significance of treatment of persons of Asian ancestry as "foreigners");
Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness," and Racial
Hierarchy in American Law, 76 OR. L. REV. 261, 295-315 (1997) (same); see also
Orhorhaghe v. INS, 38
F.3d 488, 492 (9th Cir. 1994) (ruling that "Nigerian-sounding name" was insufficient to justify
immigration stop); supra text accompanying notes 156-57 (describing Orhorhaghe).
[5]

See Kevin R. Johnson, ESSAY: How Racial Profiling in America Became the Law of the
Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly
Rebellious Lawyering, 98 Geo. L.J. 1005, 1039 (April 2010) (“The authorization to rely on
race, combined with much discretion, has resulted in even greater abuses of racial minorities in
immigration enforcement than ordinary law enforcement.”)

6

“Reasonable means” is neither easily understood nor capable of a uniform
application.[6] HB 87 invites selective reliance upon impermissible factors, such
as skin color, accent, religion or race, that make the officer question a person’s
lawful presence.[7] The vague standard of “reasonable means”, combined with
the broad, undefined, ability of the law enforcement officer to use other
information to determine immigration status, provides a loophole around the
prohibition against using racially motivated factors in this determination.
Many lawful residents, visitors, and immigrants will be unable to provide
one of the requisite forms of identification to avoid investigation and detention.[8]

[6]

“Reasonableness . . . is not a definite, arithmetic, objective quality that is independent of
aims and values. It is a concept that is considerably more subtle, complex, malleable, and
mysterious than the simplistic model of decision-making relied upon by those who accept at
face value the “reasonableness” or “rationality” of conduct that expresses not only
controversial moral and political judgments, but also deep-seated, perhaps unconscious,
affections, fears and aversions. . . .” Carrie Arnold, Racial Profiling in Immigration
Enforcement: State and Local Agreements to Enforce Federal Immigration Law, 49 ARIZ. L.
REV. 113, 134-135 (2007) (quoting Randall Kennedy, RACE, CRIME AND LAW, 144-145
(1997)).
[7]

See id. (describing the problem with providing officers unguided authority to enforce
immigration will transform “every traffic stop [into] an immigration-papers stop, leading to
potential civil rights violations against members of ethnic groups”) (citing D.L. Hawley, The
Powers of Local Law Enforcement to Enforce Immigration Laws, 99-06 Immigr. Briefings 1,
13(June 1999)).
[8]

HB 87 Section § 17-5-100 also provides a list of acceptable documents to create the
presumption of lawful presence. These documents are:(1) A secure and verifiable document

as defined in Code Section 50-36-2; (2) A valid Georgia driver's license; (3) A valid
Georgia identification card issued by the Department of Driver Services; (4) If the entity
requires proof of legal presence in the United States before issuance, any valid driver's
license from a state or district of the United States or any valid identification document

7

A national survey sponsored by the Brennan Center for Justice at the NYU
School of Law (“Brennan Center Survey”) revealed that millions of Americans
do not have documentary proof of citizenship that falls under one of these
categories readily available.[9] Approximately 13 million U.S. citizens do not
[10]

have ready access to citizenship documents.

As many as 21 million

Americans do not have valid government-issued photo identification.[11] HB 87
does not specify how persons can otherwise prove their identity if they lack one
of the prescribed forms of identification
2. Local law enforcement officials are unequipped to enforce HB 87
One cannot readily ascertain a person’s lawful presence in the United States
from external characteristics. Instead, this assessment requires a comprehensive
evaluation of numerous factors, including federal laws, regulations, and
procedures.[12] Congress enacted the Immigration and Nationality Act (“INA”

issued by the United States federal government; (5) A document used in compliance with
paragraph (2) of subsection (a) of Code Section
417 40-5-21; H.B. 87 § 17-5-100(b)(1)-(5).
[9]

The Brennan Center for Justice, Citizens Without Proof: A Survey of Americans’ Possession
of Documentary Proof of Citizenship and Photo Identification 2 (Nov. 2006), available at
http://www.brennancenter.org/page/-/d/download_file_39242.pdf
[10]
Id.
[11]
Id.
[12] 13
See Public Safety and Civil Rights Implications of State and Local Enforcement of
Federal Immigration Laws: Hearing Before the Subcomm. on the Constitution, Civil Rights, and
Civil Liberties, and Subcomm. on Immigration, Citizenship, Refugees, Border Security, and

8

found at 8 U.S.C. §§ 1101 et seq.), which provides a complex set of rules for
immigration, deportation and enforcement. Strictly reserving power to regulate
immigration for the federal government, Congress reserved execution of these
comprehensive guidelines for federal authorities trained in the policies and
procedures of enforcement. U.S. Const., Art. 1, § 8, cl. 3, 4. HB 87 blurs the line
between the roles of federal and state governments and impermissibly grants local
law enforcement with immigration enforcement duties—duties that they are not
trained or equipped to handle.
The risk of racial profiling dramatically increases when local agencies are
tasked with enforcing immigration laws. The International Association of Chiefs
of Police asserts that state and local police typically lack the training or
knowledge to properly enforce complex federal immigration laws:
Addressing immigration violations such as illegal entry or remaining
in the country without legal sanction would require specialized
knowledge of the suspect’s status and visa history and the complex
civil and criminal aspects of the federal immigration law and their
administration. This is different from identifying someone suspected
of the type of criminal behavior that local officers are trained to
detect. Whether or not a person is in fact remaining in the country in
violation of federal civil regulations or criminal provisions is a
determination best left to these agencies and the courts designed
specifically to apply these laws and make such determinations after
International Law of the H. Comm. on the Judiciary, 111th Cong. 77-78 (2009) (“Public Safety
Hearing”) (statement of David A. Harris, Professor of Law, University of Pittsburgh School of
Law) (comparing complexity of immigration laws to that of U.S. tax code).

9

appropriate hearings and procedures. Without adequate training, local
patrol officers are not in the best position to make these complex
legal determinations.[13]

The Major Cities Chiefs’[14] (“M.C.C.”) Immigration Committee
further explains that “immigration violations are different from the typical
criminal offenses that patrol officers face everyday on their local beats . . .
[T]he specific immigration status of any particular person can vary greatly
and whether they are in violation of the complex federal immigration
regulations would be very difficult if not almost impossible for the average
patrol officer to determine.”[15]
State and local law enforcement efforts are impacted greatly by immigration
reform that requires police officers to detain and question individuals in regards to
their immigration status. Salt Lake City Police Chief Chris Burbank has remarked
on how HB 497, a recently passed Utah immigration reform similar to HB 87,
affects state and local enforcement efforts.
By increasing our role in civil immigration action, state and
local law enforcement is placed in the untenable position of
potentially engaging in unconstitutional racial profiling, while
attempting to maintain trust within the communities we protect.
. . . Officers are forced to detain and question individuals for
looking or speaking differently from the majority, not for their
[13]

Enforcing Immigration Law: The Role of State, Tribal, and Local Law Enforcement,
International Assoc. of Chiefs of Police, Nov. 30, 2004, available at
http://www.theiacp.org/Portals/0/pdfs/Publications/ImmigrationEnforcementconf.pdf.
[14]
The M.C.C. is a professional association of Chiefs and Sheriffs representing the largest cities
in the United States and Canada. See M.C.C. homepage, available at
http://www.majorcitieschiefs.org/
[15]
M.C.C. Position Statement. The M.C.C. also noted the complexity of federal
immigration laws combined with the lack of local authority and state law limitations of
authority render federal agencies the most equipped to tackle immigration enforcement.

10

criminal behavior. How is a police officer to determine status
without detaining and questioning anyone who speaks, looks or
acts as if they might be from another nation?2
A study by The Chief Justice Earl Warren Institute on Race, Ethnicity &
Diversity noted that “[w]hen officers use race as an indicator of illegal
immigration status, it is virtually inevitable that Hispanic U.S. citizens and
lawful residents will be funneled through this vetting process.”[16] Examining
arrest data in Irving, Texas, the study compared arrests for petty offenses before
and after the city’s collaboration with the Criminal Alien Program (“CAP”), a
[17]

federal- local immigrant investigation and detention program.

The data

revealed that discretionary arrests of Hispanics for Class-C petty misdemeanors
rose dramatically (and in significantly higher numbers than for Whites and
African-Americans) once CAP was implemented. The data marked compelling
evidence that CAP indirectly encouraged local police to arrest Hispanics for
petty offenses in order to purge undocumented immigrants from the city—the
more arrests made led to a bigger the pool of detainees, which ensured that more

2

Associated Press, Salt Lake Police Chief Chris Burbank to Congress: Some Utah legislatures
push racist agenda, DESERET NEWS, June 18, 2010.
[16]
Trevor Gardner II & Aarti Kohli, The C.A.P. Effect: Racial Profiling In The Ice Criminal
Alien Program, The Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, UC
Berkeley School of Law, (Sept. 2009).
[17]
State immigration enforcement regimes such as HB 497 should be distinguished from formal
federal-local partnerships for immigration enforcement like CAP

11

undocumented immigrants would be removed from the city via CAP’s screening
system.
3. Enforcement of HB 87 will disproportionately affect communities of color.

Not only does the law encourage pre-textual grounds to stop individuals
and investigate their status, but it will also increase negative scrutiny of certain
communities of color.[18] Since Georgia’s communities of color comprise a
substantial portion of the state’s population, many people will face inevitable
scrutiny. According to the U.S. Census Bureau, nearly 40.3 percent of Georgia’s
9.7 million people define their race as something other than Caucasian.[19] Of
this, 8.8 percent define themselves as Hispanic or of Latino origin; 3.2 percent as
Asian; 30.5 percent as African American; 0.3 percent as American Indian or
Alaska Native; and 0.1 percent as Native Hawaiian or Pacific Islander.[20] Overall
Georgia’s foreign-born population is also increasing. Approximately one in 11
Georgia Residents are foreign-born.[21]

[18]

See Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting
Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965 at
997998 (2004) (“this lack of training, coupled with lack of hands-on enforcement experience, may
tempt local authorities to rely on racial profiling . . . And to the extent that there exists antiimmigrant sentiments within a community . . . these sentiments may more likely be expressed
by local authorities who live within those communities, rather than outside federal authorities”).
[19]
U.S. Census Bureau, State and County QuickFacts, available at
http://quickfacts.census.gov/qfd/states/13000.html.
[20]

Id.

[21]

Id.

12

The likelihood of error in attempting to enforce the law with HB 87’s
documentation requirements will inevitably be higher for minority communities.
The Brennan Center Survey revealed that millions of American citizens do not
have government-issued identification, and minority citizens are less likely to
have photo identification.[22] More than 25 percent of African Americans and 16
percent of Hispanics lack current government-issued photo identification,
compared to only eight percent of Caucasians. Id. More than 32 million women
do not have citizenship documents that reflect their current name. Id.
Moreover, many people affected by HB 87 will be U.S. citizens.[23]
Approximately 70 percent of immigrants in the United States are legal
permanent residents or U.S. citizens.[24] Of the remaining 30 percent, many
have some form of lawful status.[25] However, since there is no national
database of citizens available to quickly verify status, these groups will face

[22]

The Brennan Center for Justice, Citizens Without Proof: A Survey of Americans’
Possession of Documentary Proof of Citizenship and Photo Identification 2 (Nov. 2006),
available at http://www.brennancenter.org/page/-/d/download_file_39242.pdf
[23]
For example, in 2008, 32 percent of immigrants in Utah were naturalized citizens and eligible
to vote. Id
[24]
Nancy Morawetz & Alina Das, Legal Issues in Local Police Enforcement of Federal
Immigration Law, paper presented at the Police Foundation conference, The Role of Local
Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Washington,
DC, August 21, 2008.
[25]
Id.

13

prolonged

detention

and

investigation

if

stopped

without

proper

identification.[26]
B. HB 87 Threatens Public Safety in Georgia
The threat and likely occurrence of discriminatory police treatment will
erode the already fragile trust of law enforcement by the community it is working
to protect. HB 87 will instill fear and mistrust in Georgia’s communities of color
and drastically chill the reporting of crime and cooperation in criminal
investigations by minorities. A number of detrimental effects will likely occur
because immigrants and persons of color will avoid the police out of fear that any
interaction could lead to immigration status inquiries: (1) Georgia law enforcement
officers will not get the critical assistance they need to prosecute crimes because of
the erosion of trust between them and the community; (2) crimes will go
unpunished because immigrant victims or witnesses will refuse to report the crime
to police; (3) immigrant victims or witnesses will refuse to testify in criminal trials
or participate in criminal investigations; and (4) crime rates against immigrants
will rise, especially for hate crimes and domestic violence.

[26]

See Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration
Enforcement and Civil Liberties, 2009 at 28 (Mary Malina ed., 2009) (“Police Foundation
Report”), available at
http://www.policefoundation.org/pdf/strikingabalance/Narrative.pdf.

14

1. Enforcement of HB 87 will erode trust between communities of color and
law enforcement.
HB 87 fundamentally changes the primary role and operations of local law
enforcement and amounts to a mandatory immigration status check for all
officers in the field. Hubert Williams, President of Police Foundation—a nonpartisan organization established to improve policing in the United States—
testified before Congress:
The reluctance of local police to enforce federal immigration law grows
out of the difficulty of balancing federal and local interests in ways that do
not diminish the ability of the police to maintain their core mission of
maintaining public safety, which depends on the public trust. In
communities where people fear the police, very little information is shared
with officers, undermining the police capacity for crime control and quality
services delivery. As a result, these areas become breeding grounds for
drug trafficking, human smuggling, terrorist activity, and other serious
crimes. As a police chief in one of our focus groups asked, “How do you
police a community that will not talk to you?”[27]
Law enforcement agencies have recognized how critical it is to have the
community’s trust.[28] Many police departments have adopted “communitybased policing,” requiring police to interact with members of the community to

[27]

Public Safety Hearing, at 81-82 (statement of Hubert Williams, President, Police Foundation)
(recommending that local law enforcement not engage in immigration enforcement activities that
directly involve the public, such as requesting documentation in connection with traffic stops).
[28]
See Jack McDevitt et al., Ne. Univ. Institute on Race & Justice, COPS Evaluation Brief No. 1:
Promoting Cooperative Strategies to Reduce Racial Profiling 21 (2008) (“Being viewed as fair
and just is critical to successful policing in a democracy.”).

15

forge mutual trust[29] and engaging communities in a working partnership to
reduce crime and promote public safety. Id. To encourage cooperation between
police and the public, some localities have adopted policies similar to the Los
Angeles Police Department’s Special Order No. 40, which prohibits police
officers from “initiat[ing] police action with the objective of discovering the
alien status of a person.”[30]
While community-based policing fosters—and relies upon—trust between
the community and local police, HB 87 will ensure precisely the opposite. The
concern that community trust will decline if local officials enforce immigration
laws is not merely theoretical. A 2009 report concluded that a Virginia police
department’s enforcement of immigration laws caused a 15-percent decrease in
the level of trust in government among Hispanics in the community, and a twopoint drop (on a ten-point scale) in their quality of life.[31] A statewide survey of
California community groups found that ninety-five percent of respondents
reported a negative impact on their community after U.S. Immigration and

[29]

Police Foundation Report, at 24.
L.A. Police Dep’t, LAPD Manual Vol. 4 § 264.50, available at
http://www.lapdonline.org/lapd_manual/volume_4.htm#264.50 (last visited May 9, 2011); see
also L.A. Police Dep’t, Chief of Police Special Order No. 40 (Nov. 27, 1979) (adopting policy
located in LAPD Manual at Vol. 4 § 264.50 because “effective law enforcement depends on a
high degree of cooperation between the Department and the public is serves”), available at
http://www.lapdonline.org/get_informed/pdf_view/44798.
[31]
Thomas M. Guterbock et al., Evaluation Study of Prince William County Illegal
Immigration Enforcement Policy, at xi, 76-78 (2009), available at
http://www.pwcgov.org/docLibrary/PDF/10636.pdf.

[30]

16

Customs Enforcement (“ICE”) collaborated with local police to enforce
immigration laws.[32] Those respondents reported that their relationship with
local police had been “very good” before ICE collaboration and that the
relationship deteriorated to “very poor” since ICE collaboration. Id.
Other studies yield similar results. With data derived from nationwide
focus groups, the Police Foundation found that a majority of respondents thought
that aggressive enforcement of immigration laws would negatively impact
community relationships.[33] Another report found that law enforcement officers
expected that with the passage of bills such as Arizona’s SB 1070, there would
be decreased respect and trust from the communities they serve.44 When the
community loses faith in its protectors, the communication and trust necessary
for optimally effective local law enforcement is obstructed. And as immigration

[32]

“We’re Not Feeling Any Safer”: Survey Results Show Negative Impacts from ICE
Involvement with Local Police, California Immigrant Policy Center, University of California,
Berkeley Law (Summer 2010), available at http://caimmigrant.org/document.html?id=322/.
One type of ICE collaboration with local police is known as Secure Communities. See, e.g.,
Secure Communities, U.S. Immigration and Customs Enforcement,
http://www.ice.gov/secure_communities/ (last visited May 19, 2011). Under this program, ICE
conducts an immigration check along with the U.S. Department of Homeland Security and the
Department of Justice to identify aliens who are arrested for a crime and booked into local law
enforcement custody. Id.
[33]
See Police Foundation Report at 24. Specifically, community relationships would be eroded
by decreasing community trust of the police (74 percent), trust between community residents (70
percent), and reporting of both crime victimization (85 percent) and criminal activity (83
percent). Compounding these concerns was a belief that aggressive enforcement of immigration
laws would weaken public trust initiatives (77 percent), community-policing efforts (77 percent),
youth outreach (74 percent), intelligence/information gathering (63 percent), criminal
investigations (67 percent), and even recruitment (31 percent), thereby impacting operations
significantly.

17

enforcement becomes more aggressive, the community is less likely to cooperate
with police.
2. HB87 will produce a chilling effect on the reporting of crime and
cooperation in police investigations, jeopardizing the public safety of all
Georgians.
The American Bar Association has reported that: “[l]ocal police and
prosecutors should be prepared for the predictable reduction in reporting of serious
crimes if law enforcement officers choose to expand their duties to include the
policing of immigration matters.”[34] Because its provisions target communities of
color, HB 87 will thwart the willingness of Georgians to report and cooperate in
the investigation of crimes.
Craig Ferrell, the Deputy Director and Administration General Counsel
at the Houston Police Department, details the chilling effects laws like HB 87
would have on immigrant cooperation:
Local police agencies depend on the cooperation of immigrants,
legal and illegal, in solving all sorts of crimes and in the
maintenance of public order. Without assurances that they will not
be subject to an immigration investigation and possible deportation,
many immigrants with critical information would not come forward,

[34]

Gail Pendleton, Local Police Enforcement of Immigration Laws and its Effects on Victims of
Domestic Violence, Domestic Violence and Immigration in the Criminal Justice System, ABA
Commission on Domestic Violence (“ABA Domestic Violence Report”), at 3, available at
http://www.mcadsv.org/webinars/IR-2007-April/VI/BI%20Law%20Enforcement%20CJS.pdf.

18

even when heinous crimes are committed against them or their
families.[35]
Racial and ethnic minority victims may well feel compelled to let a
particular incident go unreported rather than potentially expose themselves to
interrogation and possible detention while their own immigration status is
investigated—a process that takes more than an hour on average.[36] This
reluctance is even greater for individuals who are undocumented. Fear of
reporting crimes and cooperating with police investigations has been prevalent
among the undocumented, which often makes them vulnerable to crimes.[37]
Reluctance to cooperate with law enforcement is also inevitable for the
significant number of people who may themselves have legal status but who may
live with relatives or friends who do not.[38] For those who fear that they or a
loved one will be deported, reporting a crime or providing witness information to

[35]

Craig E. Ferrell Jr., Immigration Enforcement: Is It a Local Issue?, The Police Chief: The
Professional Voice of Law Enforcement (Feb. 2004), available at
http://www.lwvil.org/downloadimm/lwvil_immigration_study_second_packet_police_chief_ma
gazine.pdf.
[36]
See Police Foundation Report at 23
[37] 50
See, e.g., Nat’l Network for Immigrant & Refugee Rights, Over-Raided, Under Siege:
U.S. Immigration Laws and Enforcement Destroy the Rights of Immigrants 36 (2008),
http://www.nnirr.org/resources/docs/UnderSiege_web2.pdf (noting that many crimes
committed against immigrants go unreported because immigrants fear deportation if they report
any incident to the police); S. Poverty Law Ctr., Under Siege Life for Low-Income Latinos in
the South 6
(Apr. 2009), available at http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf
(noting that 41 percent of migrant workers in survey reported wage theft).
[38]
The Police Foundation Report notes that 85 percent of families are mixed-status families—
families with a combination of citizens, undocumented immigrants, and documented immigrants.
Police Foundation Report at 24.

19

law enforcement officials may be too great a risk to take.[39] Because many
families with undocumented family members also include legal immigrant
members, this would drive a potential wedge between police and huge portions
of the legal immigrant population as well.[40] This ripple effect will facilitate HB
87’s widespread consequences of chilling reporting of crime and eroding the
trust between law enforcement and the community.
English language learners are particularly reluctant to cooperate in such
instances, given the language barriers that already hinder their ability to
communicate with government officials.[41] Not only may English language
learners hesitate to contact officials because of their limited English proficiency,

[39]

The Police Foundation Report describes a recent Pew Hispanic survey, which found that the
majority of Latinos in the United States worry about deportation of themselves, a family
member, or a close relative. Police Foundation Report at 24
[40]
Craig E. Ferrell Jr., Immigration Enforcement: Is It a Local Issue?, The Police Chief: The
Professional Voice of Law Enforcement (Feb. 2004), available at
http://www.lwvil.org/downloadimm/lwvil_immigration_study_second_packet_police_chief_mag
azine.pdf.
[41]
See Susan Shah, Insha Rahman, and Anita Khashu, Overcoming Language Barriers:
Solutions for Law Enforcement (Vera Institute of Justice, 2007) at 4, available at:
http://www.justice.gov/crt/lep/resources/vera_translating_justice_final.pdf (“The obstacles
associated with language barriers are often complicated by the fact that many [limited English
proficient] persons fear the police and go to great lengths to avoid contact with them. Especially
in a political environment where immigrants’ legal status is a prominent issue of national debate,
more and more immigrants—particularly those who do not speak fluent English—are staying
away from public services and government institutions. As community members often explain,
‘Even with immigrants who are here legally, they are suspicious of and fear the police.’”)

20

but they are also likely to avoid government contact due to unfamiliarity with
U.S. laws.[42]
Finally, HB 87 presents a particularly profound risk for domestic violence
victims. “If police are seen as [federal immigration agents] in the eyes of the
community, many battered immigrants will be reluctant to call the police and take
the initial steps necessary to become independent of the abuser out of fear of
being asked about her immigration status.”[43] According to an advocate at the St.
Paul Domestic Abuse Intervention Project, local police involvement in
immigration matters increases fear in “already vulnerable communities: ‘Most
immigrants in battered women shelters are too afraid to call police, even if they
have been badly assaulted by their partner.’”[44]

[42]

Jones Moy and Brent Archibald, Reaching English as a Second Language Communities:
Talking with the Police, The Police Chief Magazine (Vol. 72, No. 6, June 2005), available at
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=
614&issue_id=62005 (“The [Monterey Park Police] Department observed numerous
misunderstandings in the basics: recognizing law enforcement officers (some residents do not
know the difference between police officers, security guards, and firemen), using the emergency
911 system, responding to a traffic stop (some people stop right in the middle of the road rather
than pull to the curb, whereas others refuse to sign the traffic citation). Response to domestic
calls are often complicated by the families' limited English and even more so by their lack of
understanding of American laws and legal ramifications of domestic violence.”)
[43]
ABA Domestic Violence Report at 1.
[44] 57
Portrait of Injustice: the Impact of Raids on Families, Workers and Communities, Report
from the National INS Raids Task Force of the National Network for Immigrants and Refugee
Rights, at 33 (1997).

21

3. HB 87 will also chill cooperation in court cases and criminal investigations.
Similarly, HB 87 may chill cooperation in a court cases or criminal
investigations. “In the courtroom . . . minority victims and witnesses may be less
willing to testify, and jurors may engage in nullification when they perceive that
charges were unjustly brought against a minority defendant, regardless of the
weight of the evidence.”[45] If targeted groups view law enforcement as
discriminating against them, they will doubt the justice system’s ability to function
fairly— destroying “the ideal that holds us together as a nation: equal justice under
the law.”[46] In one example, a Midwestern police chief recalled an incident where
an unauthorized immigrant was a witness to a crime and agreed to testify in a
criminal case.[47] The witness’s name was put on the witness list in preparation for
trial. Defense attorneys then discovered that the witness was undocumented. A
few days after the witness testified in the case, ICE arrested him and initiated
deportation proceedings. Word of the incident spread in the community, and, as a
result, police have had difficulty securing cooperation of other immigrant
witnesses. Id.

[45]

Anthony E. Mucchetti, Driving While Brown: A Proposal for Ending Racial Profiling in
Emerging Latino Communities, 8 Harv. Latino L. Rev. 1, 22 (2005).
[46]
David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black”
Matters, 84 Minn. L. Rev. 265, 326 (1999).
[47]
See Police Foundation Report at 23.

22

4. HB 87 will particularly undermine community safety by increasing
minorities’ vulnerability to hate crimes.
Members of minority communities (including communities defined by
color, faith, sexual orientation, gender, and national origin) are the
disproportionate victims of hate crimes.[48] They are also the most likely to bear
the brunt of HB 87 enforcement. If HB 87 takes effect, victims of hate crimes
will likely feel less comfortable reporting crimes to law enforcement.[49]
Those who are most intimidated by the new law enforcement regime
will be among those most in need of government protection against crimes of
hate. The Federal Bureau of Justice estimates that only 44 percent of hate
crimes are reported to the police.[50] One explanation for the significant
underreporting of hate crimes may be similar to the reason that undocumented
immigrants may underreport crimes: victims fear that calling attention to the
crime will lead to further targeting, whether by the perpetrator or by the

[48]

For example, one northeastern city police chief stated: “They [undocumented immigrants]
refer to themselves as walking ATMs because everybody knows that they don’t have
documentation enough to get bank accounts, checking accounts, and those kinds of things, and
that their savings and whatever they have is on their person, not anywhere else. First of all,
they live in an apartment with eight other people, so you can’t leave it behind. They carry it
with them and the people who seek to victimize them take advantage of that.” Police
Foundation Report at 25.
[49]
See generally ABA Domestic Violence Report.
[50]
Caroline Wolf Harlow, Bureau of Justice Statistics, Hate Crime Reported by Victims and
Police 4 (Nov. 2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/hcrvp.pdf.

23

police.[51] Moreover, the level of vitriol around immigration issues has
recently increased: in only two years the number of what the Southern
Poverty Law Center terms “nativist extremist” groups”[52]—organizations that
go beyond mere advocacy of restrictive immigration policy to actually
confronting or harassing suspected immigrants,”[53]—more than doubled, from
144 groups in 2007 to 309 groups in 2009.[54] In such a climate, all minority
groups need to be able to trust in law enforcement to ensure their safety and
maintain the well-being of their communities.[55] HB 87 guarantees precisely
the opposite and, as a result, will lead to increased hate crimes.

[51]

Police Foundation Report at 23.
A listing of nativist extremist groups in Georgia can be found at S. Poverty Law Ctr., Nativist
Extremist Groups 2010, http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2011/spring/the-year-in-nativism/nativist-extremists
[53]
S. Poverty Law Ctr., New SPLC Report: “Patriot” Groups, Militias Surge in Number in
the Past Year, Mar. 2, 2010, http://www.splcenter.org/get-informed/news/splc-report-numberof- patriot-groups-militias-surges-by-244-in-past-year (defining “nativist extremist”).
[54]
Heidi Beirich, S. Poverty Law Ctr., The Year in Nativism, Intelligence Report, Spring 2010,
available at http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2010/spring/the-year-in-nativism.
[55]
The danger of the underreporting of hate crimes exists for all minorities, not just ethnic
minorities, who may feel that law enforcement is not interested in advancing or maintaining
the well-being of their communities. For instance, law enforcement organizations have
recognized that lesbian, gay, bisexual and transgender (“LGBT”) communities are often
reluctant to report hate crimes to officials perceived as unsympathetic. King County Dep’t of
Pub. Health, Safety and Hate Crimes, Oct. 7, 2008,
http://www.kingcounty.gov/healthservices/health/personal/glbt/HateCrime.aspx (“Minority
groups, including [LGBT] communities, have historically had strained relations with law
enforcement and fear that crimes against them will not be taken seriously or that the police
reaction will be unsympathetic or hostile.”). Additionally, one study has found that LGBT
undocumented immigrants are often doubly deterred from seeking justice after being victims
of anti-LGBT discrimination or crime for fear of arrest or deportation, causing injustices to go
unheeded and encouraging further wrongdoing. See Jon Davidson & Francisco Dueñas,
[52]

24

CONCLUSION
For the foregoing reasons, the Georgia Association of Latino Elected
Officials request that this Court grant the Plaintiffs’ motion for preliminary
injunction to bar the enforcement of Georgia’s Illegal Immigration Reform and
Enforcement Act of 2011. Public interest requires that HB 87 be enjoined
because it is incapable of being executed in an impartial and constitutional
manner.

Arizona Law Hurts Us All, Advocate, May 5, 2010, available at
http://advocate.com/Politics/Commentary/Lambda_Legal_Arizona_Law_Hurts_Us_All/
(while Arizona’s SB 1070 is different from Georgia’s HB 87, the two laws are similar and this
article is instructive).

25

RESPECTFULLY SUBMMITTED THIS

DATED: 16th day of June, 2011

ROHAN LAW, PC

Douglas Rohan
DOUGLAS B. ROHAN
GA BAR # 613515
Attorney for Amicus Curiae
GEORGIA ASSOCIATION OF LATINO
ELECTEDOFFICIALS

26