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

Filing 76

RESPONSE in Opposition re 47 MOTION to Dismiss Defendants, Nathan Deal, Samuel Olens, Clyde Reese and Mike Beatty filed by Alterna, Asian American Legal Advocacy Center, Paul Bridges, Coalition for the People's Agenda, Coalition of Latino Leaders, DREAM Activist.org, Jane Doe # 1, John Doe # 1, Jane Doe # 2, John Doe # 2, Paul C. Edwards, Georgia Latino Alliance for Human Rights, Sharon Gruner, Everitt Howe, Instituto de Mexico, Inc. of Atlanta, David Kennedy, Ernesto Pinon, Service Employees International Union, Jaypaul Singh, Southern Regional Joint Board of Workers' United, Benjamin Speight, Task Force for the Homeless. (Lapointe, Michelle)

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

Georgia Latino Alliance for Human
Rights, et al.,
Plaintiffs,
v.
Governor Nathan Deal, et al.,
Defendants.

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

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS

TABLE OF CONTENTS
Page No(s)
INTRODUCTION .....................................................................................................1
I.

PLAINTIFFS’ COMPLAINT MEETS AND EXCEEDS THE PLEADING
REQUIREMENTS OF RULE 8 .......................................................................2

II.

PLAINTIFFS HAVE STANDING TO RAISE ALL OF THEIR CLAIMS 2

A.

Harms to Plaintiff Organizations .....................................................................4
1. The Organizational Plaintiffs Have Standing in Their Own Right ............5
2. The Organizational Plaintiffs Have Standing on Behalf of Their
Members ……………………………………………………………….10

B.

Harms to Plaintiffs Related to Interrogation and Extended Detentions
Pending Immigration Status Verification ......................................................12

C.

Harms to Plaintiffs based on Threat of Criminal Prosecution .......................17

III.

PLAINTIFFS HAVE PROPERLY STATED A PREEMPTION CLAIM ...21

IV.

PLAINTIFFS HAVE PROPERLY STATED A CLAIM UNDER THE
FOURTH AMENDMENT ............................................................................27

V.

PLAINTIFFS HAVE PROPERLY STATED A CLAIM CONCERNING
THE RIGHT TO TRAVEL ...........................................................................36

VI.

PLAINTIFFS HAVE PLED A VALID EQUAL PROTECTION CLAIM ..38

VII. PLAINTIFFS HAVE STATED A VALID DUE PROCESS CLAIM .........39
VIII. PLAINTIFFS HAVE STATED A CLAIM UNDER 42 U.S.C. SECTIONS
1981 AND 1983 .............................................................................................41
IX.

THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ CLAIMS: THE
ELEVENTH AMENDMENT BAR DOES NOT APPLY TO THE
DEFENDANTS .............................................................................................41

X.

PLAINTIFFS’ STATE CONSTITUTIONAL CLAIM ................................43

CONCLUSION ........................................................................................................43

i

TABLE OF AUTHORITIES
Page No(s)
CASES
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970) ..............................................................................................41
Am. Fed'n of Gov't Employees Local 1 v. Stone,
502 F.3d 1027 (9th Cir. 2007) ..............................................................................11
Arizona v. Johnson,
129 S. Ct. 781 (2009) ............................................................................................31
Arrington v. Helms,
438 F.3d 1336 (11th Cir. 2006) ............................................................................23
Ashcroft v. Iqbal,
556 U.S. __, 129 S.Ct. 1937 (2009)........................................................................2
Asseo v. Pan Am. Grain Co.,
805 F.2d 23 (1st Cir.1986) ....................................................................................24
Att’y Gen. of N.Y. v. Soto-Lopez,
476 U.S. 898 (1986) ....................................................................................... 38, 39
Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289 (1979) ............................................................................................1, 4
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................1, 2

ii

Bernal v. Fainter,
467 U.S. 216 (1984) ..............................................................................................40
Betancourt v. Ingram Park Mall, L.P.,
735 F.Supp. 2d 587 (W.D. Tex. 2010) .................................................................25
Blessing v. Freestone,
520 U.S. 329 (1997) ..............................................................................................23
Board of Regents v. Roth,
408 U.S. 564 (1972) ..............................................................................................42
Brown v. City of Huntsville,
608 F.3d 724 (11th Cir. 2010) ..............................................................................34
Butts v. County of Volusia,
222 F.3d 891 (11th Cir. 2000) ..............................................................................43
Chamber of Commerce v. Whiting,
___ U.S. ___, 131 S. Ct. 1968 (2011)........................................................... passim
Church v. City of Huntsville,
30 F.3d 1332 (11th Cir. 1994) …………………………………………………17
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ......................................................................................... 17, 18
Common Cause/ Georgia v. Billups,
554 F.3d 1340 (11th Cir. 2009) .................................................................... passim
Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363 (2000) ..............................................................................................26

iii

Doe v. Stincer,
175 F.3d 879 (11th Cir. 1999) ..........................................................................5, 11
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) ....................................................................................................4
Ex parte Young,
209 U.S. 123 (1908) ....................................................................................... 43, 44
Fl. State Conference of NAACP v. Browning,
522 F.3d 1153 (11th Cir. 2008) .................................................................... passim
Flast v. Cohen,
392 U.S. 83 (1968) ..................................................................................................4
Gonzaga University v. Doe,
536 U.S. 273 (2002) ..............................................................................................23
Gonzalez v. Pingree,
821 F.2d 1526 (11th Cir. 1987) .............................................................................23
Graham v. Richardson,
403 U.S. 365 (1971) ..............................................................................................40
Gulf Coast Commercial Corp. v. Gordon River Hotel Assocs.,
No. 2:05-cv-564-FtM-33SPC, 2006 WL 1382072 (MD. Fla. May 18, 2006) .....24
Gulf USA Corp. v. Federal Ins. Co.,
259 F.3d 1049 (9th Cir. 2001) ..............................................................................25
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .............................................................................................6,9

iv

Heideman v. South Salt Lake City,
348 F.3d 1182 (10th Cir. 2003) ............................................................................25
Hines v. Davidowitz,
312 U.S. 52 (1941) ......................................................................................... 25, 26
Holder v. Humanitarian Law Project,
130 S. Ct. 2705 (2010) ......................................................................................4, 12
Home Oil Co., Inc. v. Sam’s East, Inc.,
252 F.Supp. 2d 1302 (M.D. Fla. 2003).................................................................24
Hunt v. Wash. State Apple Adver. Com’n.,
432 U.S. 333 (1977) ..........................................................................................5, 11
Illinois v. Caballes,
543 U.S. 405 (2005) ..............................................................................................34
In re Infolink Group, Inc., Bankr. Nos. 10-26423-AJC 10-26436-AJC, 2011 WL
1655882 (S.D. Fla. Bkrtcy. May 2, 2011) ............................................................24
Johnson v. Housing Authority of Jefferson Parish,
442 F.3d 356 (5th Cir. 2006) ................................................................................23
Lee v. Ferraro,
284 F.3d 1188 (11th Cir. 2002) ............................................................................37
Levi Strauss & Co. v. Sunrise Int’l Trading Inc.,
51 F.3d 982 (11th Cir. 1995) ................................................................................24
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................3

v

M.K.B. v. Eggelston,
445 F.Supp. 400 (S.D.N.Y. 2006) ........................................................................23
Marx v. Gumbinner,
905 F.2d 1503 (11th Cir. 1990) ............................................................................33
McNally v. Eve,
2008 WL 1931317 (M.D. Fla. May 2, 2008) .......................................................37
Medvar v. State,
286 Ga. App. 177 (2007) ......................................................................................35
Muehler v. Mena,
544 U.S. 93 (2005) ................................................................................................31
Nat'l Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson,
357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) .......................................10
Pennsylvania v. West Virginia,
262 U.S. 553 (1923) ................................................................................................4
R.B. ex rel. Parent v. Mastery Charter School,
762 F.Supp. 2d 745 (E.D. Pa. 2010) .....................................................................25
Region 8 Forest Serv. Timber Purchasers Council v. Alcock,
993 F.2d 800 (11th Cir. 1993) ................................................................................2
Saenz v. Roe,
526 U.S. 489 (1999) ..............................................................................................39
Sierra Club, Lone Star Chapter v. Fed. Dep. Ins. Corp.,
992 F.2d 545 (5th Cir. 1993) ................................................................................24

vi

Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ..................................................................................................3
State v. Grant,
195 Ga. App. 859 (1990) ......................................................................................35
Summit Med. Assocs., P.C. v. Pryor,
180 F.3d 1326 (11th Cir. 1999) ............................................................................44
United States v. Arizona,
__ F.3d __, 2011 WL 1346945 (9th Cir. APri. 11, 2011), aff’g 703 F. Supp. 2d
980 (D. Ariz. 2010) ...............................................................................................23
United States v. Arizona,
703 F. Supp. 2d 980 (D. Ariz. 2010) ....................................................................24
United States v. Blair,
524 F.3d 740 (6th Cir. 2008) ................................................................................32
United States v. Brigoni-Ponce,
422 U.S. 873 (1975) ....................................................................................... 34, 35
United States v. Choudhury,
461 F.3d 1097 (9th Cir. 2006) ..............................................................................37
United States. v. Cruz-Hernandez,
62 F.3d 1353 (11th Cir. 1995) ..............................................................................15
United States v. Guerrero-Espinoza,
462 F.3d 1302 (10th Cir. 2006) ............................................................................32
United States v. Hardy,
855 F.2d 753 (11th Cir. 1988) ..............................................................................35
vii

United States v. Hernandez,
418 F.3d 1206 (11th Cir. 2005) ..................................................................... 31, 33
United States v. Holloman,
113 F.3d 192 (11th Cir. 1997) ..............................................................................31
United States v. Montero-Camargo,
208 F.3d 1122 (9th Cir. 2000) ..............................................................................15
United States v. Montoya de Hernandez,
473 U.S. 531 (1985) ..............................................................................................34
United States v. O’Connell,
890 F.2d 563 (1st Cir. 1989) .................................................................................25
United States v. Peralez,
526 F.3d 1115 (8th Cir. 2007) ....................................................................... 33, 36
United States v. Pruitt,
174 F.3d 1215 (11th Cir. 1999) ............................................................................31
United States v. Purcell,
236 F.3d 1274 (11th Cir. 2001) ............................................................................31
United States v. Santillanes,
848 F.2d 1103 (10th Cir. 1988) ............................................................................38
United States v. Tapia,
912 F.2d 1367 (11th Cir. 1990) ............................................................................32
United States v. Urrieta,
520 F.3d 569 (6th Cir. 2008) ................................................................................32
viii

United States v. Viezca,
555 F.Supp. 2d 1254 (M.D. Ala. 2008) ................................................................31
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981) ..............................................................................................24
Victorian v. Miller,
813 F.2d 718 (5th Cir. 1987) ................................................................................23
Virginia v. Am. Booksellers Ass’n,
484 U.S. 383 (1988) ................................................................................................4
Von Stein v. Brescher,
904 F.2d 572 (11th Cir. 1990) ..............................................................................37
Watt v Energy Action Educ. Found.,
454 U.S. 151 (1981) ................................................................................................3
Whren v. United States,
517 U.S. 806 (1996) ..............................................................................................37
Wright v. City of Roanoke Redevelopment & Housing Authority,
479 U.S. 418 (1987) ..............................................................................................22
CONSTITUTIONAL PROVISIONS
Ga. Const. Art. 5 § 2, ¶ 2 .........................................................................................44
STATUTES
24 CFR
§ 5.216...................................................................................................................28
ix

42 U.S.C.
§ 1981....................................................................................................................43
§ 1983............................................................................................................ 22, 42
§ 3543....................................................................................................................28
7 C.F.R.
§ 273.2(f)(1)(vii) ............................................................................................ 26, 28
7 U.S.C.
§ 2020(e)(3) ………………………………………………………………... .

28

8 U.S.C.
§ 1324a(h)(2) ........................................................................................................23
§ 1625............................................................................................................. 26, 27
§ 1642............................................................................................................. 26, 28
A.R.S.
§ 11-1051(B)(4) ....................................................................................................23
§ 2-11-7(8)(B)(4) ..................................................................................................24
O.C.G.A.
§ 17-1-2 .................................................................................................................44
§ 17-5-100(d) ........................................................................................................15
§ 17-5-100(e) ........................................................................................................37
§ 36-50-1(e)(1) ......................................................................................................27
RULES
Federal Rules of Civil Procedure
§ 8(a)(2) ..................................................................................................................2
§ 12(b)(1) ................................................................................................................1
§ 12(b)(6) ................................................................................................................1

x

OTHER AUTHORITIES
Brennan Center for Justice, Citizens without Proof: A Survey of America’s
Possession of Documentary Proof of Citizenship and Photo Identification,
Nov. 2006 .................................................................................................................28
David A. Harris, “Driving While Black” and All Other Traffic Offenses, 87 Crim.
L. Criminology 544 (1997) ..................................................................................20
M. V. Hood III & Charles S. Bullock, III, Worth a Thousand Words? An Analysis
of Georgia’s Voter Identification Statute (2007)..................................................28
Sonji Jacobs & Megan Clarke, No ID? Votes Cast Can Become Castoffs, Atl. J.
Const., Nov. 2, 2007 .............................................................................................28
LEGISLATIVE MATERIALS
Food Stamp Act and the Housing and Community Development Act....................22
Housing Choice Voucher Program ……………………………………………….45
Legal Arizona Workers Act .....................................................................................23

xi

INTRODUCTION
Plaintiffs in this action include 10 organizations with thousands of diverse
immigrant and citizen members and clients throughout Georgia and 12 individual
Plaintiffs. Defendants’ motion under Federal Rules of Civil Procedure 12(b)(1)
must be denied because the pleadings unquestionably demonstrate that the
individual and organizational Plaintiffs face specific, concrete, and objective harms
under HB 87 and all of the other requisites for standing are met. This is precisely
the sort of case where, as the Supreme Court has recognized, “a plaintiff need not
first expose himself to actual arrest or prosecution to be entitled to challenge [the]
statute.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979).
Similarly, there is no merit to Defendants’ motion under Rule 12(b)(6), which
simply ignores allegations in Plaintiffs’ well-pled Complaint. Plaintiffs’ claims are
amply supported under the standard for Rule 12(b)(6) motions. Defendants’
motion should be denied in its entirety.
I. PLAINTIFFS’ COMPLAINT MEETS AND EXCEEDS THE
PLEADING REQUIREMENTS OF RULE 8
Defendants incorrectly assert that the allegations in the Complaint fail to
“give rise to a ‘plausible’ suggestion of unlawful conduct.” Defs. Deal Olens,
Reese and Betty’s Br. in Supp. of their Mot. to Dismiss (hereinafter “Defs.’ Br.”)
at 9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 565-66 (2007)).
1

Notably, Fed. R. Civ. P. 8(a)(2) requires a “short and plain statement of the claim,”
but “does not require detailed factual allegations.” Ashcroft v. Iqbal, 556 U.S. __,
129 S.Ct. 1937, 1949 (2009) (emphasis added). Although a “blanket assertion” of
a right to relief is insufficient, a plaintiff need only allege sufficient facts to raise
his right to relief “above the speculative level.” Twombly, 550 U.S. at 555.
Moreover, in determining the sufficiency of a pleading for purposes of a motion to
dismiss, the court must “take all of the factual allegations in the Complaint as
true.” Iqbal, 129 S.Ct. at 1949-50. See also Twombly, 550 U.S. at 556 (allegations
in Complaint must be “taken as true” and “a well-pleaded Complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable”).
Plaintiffs’ 82-page Complaint far exceeds these standards.1
II. PLAINTIFFS HAVE STANDING TO RAISE ALL OF THEIR
CLAIMS
Defendants contend that Plaintiffs lack standing to bring their claims in
federal court. Defs.’ Br. at 11-24. Because Defendants challenge standing through
a motion to dismiss, Plaintiffs rely on their Complaint and supporting

1

Defendants attempt to discount the first 40 pages of Plaintiffs’ Complaint because
they “define the parties.” Defs.’ Br. at 10. But, within those 40 pages, Plaintiffs
set forth precisely how they are injured by provisions of HB 87 and explain why
they have standing. Compl. at 1-40.
2

declarations,2 which contains more than sufficient factual allegations of injury
resulting from HB 87 to establish standing at this stage of the litigation. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting that “[a]t the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct”
is sufficient). Moreover, the Court must “presume that general allegations [in the
Complaint] embrace those specific facts that are necessary to support the claim.”
Id.
As an initial matter, Plaintiffs have sufficiently demonstrated the three
elements of standing: (1) that the plaintiffs will suffer an “injury in fact” that is
“concrete and particularized,” and “actual or imminent, not ‘conjectural’ or
‘hypothetical;’” (2) a causal connection between the injury and the conduct
complained of; and (3) that it is “’likely,’ as opposed to merely ‘speculative,’ that
the injury will be ‘redressed by a favorable decision.’” Id. at 560-61 (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). Each of the
Plaintiffs in this case meets these requirements, although once the Court finds that
one plaintiff has standing, it need not address the standing of other plaintiffs
raising the same claim. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S.
2

Moreover, in making its determination, the Court is not restricted to the face of
the complaint—it may rely on affidavits submitted in support of the complaint.
See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,
806 (11th Cir. 1993).
3

151, 160 (1981).
As a constitutional requirement, “the question of standing is related only to
whether the dispute sought to be adjudicated will be presented in an adversary
context and in a form historically viewed as capable of judicial resolution.”3 Flast
v. Cohen, 392 U.S. 83, 101 (1968). Notably, while “[a] plaintiff who challenges a
statute must demonstrate a realistic danger of sustaining a direct injury as a result
of the statute’s operation or enforcement [citation omitted] . . . ‘[o]ne does not have
to await the consummation of threatened injury to obtain preventive relief. If the
injury is certainly impending, that is enough.’” Babbitt, 442 U.S. at 298 (quoting
Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)). In such circumstances,
courts have routinely found that plaintiffs have standing to bring facial challenges
to statutes and ordinances that have not yet been applied to them. See Babbitt, 442
U.S. at 298-302; Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988);
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2716 (2010); Fl. State
Conference of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008).
3

Defendants do not contest Plaintiffs’ standing on a prudential basis, nor could
they as none of the bases for restraint on the exercise of federal jurisdiction arise
here. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004)
(noting “prudential standing encompasses the general prohibition on a litigant’s
raising another person’s legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff’s complaint fall within the zone of interests protected
by the law invoked”) (internal quotations omitted).
4

A. Harms to Plaintiff Organizations
An organization may establish standing in its own right if a challenged law
hinders it from providing services or from otherwise carrying out its mission.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). For example, an
organization has standing where the challenged statute frustrates the organization’s
goals and requires the organization to “divert resources from its regular activities”
Common Cause/ Georgia v. Billups, 554 F.3d 1340, 1350 (11th Cir. 2009); see
also Browning, 522 F.3d at 1161.
In addition, an organization has standing to bring suit on behalf of its
members when “(a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose,
and (c) neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Com’n.,
432 U.S. 333, 343 (1977); Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999).
Both forms of standing apply to the organizational Plaintiffs in this case.
1. The Organizational Plaintiffs Have Standing in Their Own
Right
All of the Plaintiff organizations have alleged concrete and imminent
injuries on their own behalf regarding HB 87’s provisions. Defendants contend
that the Plaintiff organizations lack standing because they have failed to allege that
5

HB 87, if implemented, would adversely impact their particular organizational
missions. Defs.’ Br. at 19. This contention lacks merit. The Complaint clearly
alleges that HB 87 will impair the ability of Plaintiff organizations to carry out
their organizational missions. See Havens, 455 U.S. at 379; Common Cause/
Georgia, 554 F.3d at 1350. For example, Plaintiff Coalition of Latino Leaders
(CLILA) is a community-based organization whose mission is to develop
grassroots Latino leadership. The organization provides “citizenship classes;
English-language classes; Homework Club for children whose parents do not
speak English; computer classes; and assistance in completing applications for
legal residency and naturalization.” Compl. ¶ 36. Due to the passage of HB 87,
“CLILA’s resources, both in terms of funding and staff and volunteer time, have
been diverted from organizational priority projects.” Id. Specifically, the number
of calls CLILA receives daily has increased by 400 percent since HB 87 was
passed, and the vast majority of these calls are from community members who
have questions about the new law and how it will affect them. Id. at ¶ 37. As a
result, “CLILA has been forced to put on hold its citizenship classes in order to
respond to this increase in calls and to answer questions about HB 87.” Id.
In addition, since the passage of HB 87, Plaintiff Task Force for the
Homeless (TFH) has “diverted resources from other organizational priorities to

6

educate its volunteers and residents about the law,” a trend that will only accelerate
if HB 87 takes effect. Id. at. ¶ 30. Specifically, TFH encourages its residents to
apply for food stamps and public housing, a process that has not traditionally
consumed significant staff time. Id. at ¶ 32. If Sections 17-19 of HB 87—the
provisions mandating new public benefits identification document requirements
and related criminal penalties—take effect, “TFH will be overburdened by requests
from residents for help with overcoming problems caused by these new document
requirements, including the time-consuming process of obtaining qualifying
identity documents.” Id. In addition, when otherwise eligible residents are denied
public benefits, due to HB 87’s requirements, TFH will be forced to provide more
direct food and housing assistance. Id. “This diversion of resources will be a
major impediment to TFH residents’ access to essential services, and to TFH’s
work in other areas,” such as providing a recovery program, an emergency
assistance hotline, and employment placement assistance. Id. at ¶¶ 29, 32.
Similarly, if HB 87 takes effect, Plaintiff Georgia Latino Alliance for Human
Rights (GLAHR) “will no longer be able to conduct education around local
ordinances, and instead will have to focus all of its educational efforts on
determining the effects of HB 87 and educating its members about it.” Id. at ¶ 17.
Contrary to Defendants’ claims, these allegations of harm to the organizational

7

Plaintiffs based on a diversion of resources and a frustration of organizational
missions as a result of HB 87 are not speculative, unspecified, or abstract. See
Defs.’ Br.at 19-20. Instead, Plaintiffs have clearly alleged specific ways in which
their core activities have already been undermined due to the passage of HB 87 and
will be further undermined if it takes effect.
Nor are these the only examples of injuries to the organizational Plaintiffs.
The Complaint also sets forth facts showing that the other Plaintiff organizations
have had to divert resources from core mission priorities because of HB 87. See
Compl. ¶¶ 20-21 (Service Employees International Union (SEIU)); 22-25
(Southern Regional Joint Board of Workers’ United (Joint Board)); 33 (Asian
American Legal Advocacy Center); 34-35 (Alterna); 40-42 (Georgia Coalition for
the Peoples’ Agenda (CPA)); see also Nicholls Decl. (Doc. 29-22) ¶¶ 7- 8, 17-18
(GLAHR); America Gruner Decl. (Doc. 29-20) ¶¶ 9-10 (CLILA); Beaty Decl.
(Doc. 29-23) ¶¶ 9, 15-16 (TFH); Flores Decl. (Doc. 29-21) ¶¶ 6, 7, 13 (Alterna);
Ho Decl. (Doc. 29-24) ¶ 7 (Asian American Legal Advocacy Center); Ali-Beik
Decl. (Doc. 29-25) ¶¶ 4, 6-9 (DreamActivist.org); Gonzalez-Lamberson Decl.
(Doc. 29-28) ¶ 8 (Instituto de Mexico, Inc. of Atlanta (Instituto)); Medina Decl.
(Doc. 29-26) ¶¶ 9-10 (SEIU); Raynor Decl. (Doc. 29-27) ¶¶ 5, 9-10 (Joint Board).
Under settled case law, each of the organizational Plaintiffs has standing to

8

challenge HB 87 because each is harmed by the diversion of resources from, and
impediment to, its organizational mission due to HB 87. See Havens Realty Corp.,
455 U.S. at 379 (noting diversion of organizational resources caused by need to
respond to discriminatory real estate practices); Common Cause/Georgia, 554 F.3d
at 1350 (noting diversion of organizational resources caused by need to educate
members about new photo identification voting requirements); Browning, 522 F.3d
at 1165-66 (“The organizations reasonably anticipate that they will have to divert
personnel and time to educating volunteers and voters on compliance with
[challenged law].”). Defendants attempt to minimize the substantial harms the
organizational Plaintiffs have already sustained due to HB 87’s passage by
claiming that these Plaintiffs only serve “causes related to the broad societal
interests of immigration” and, therefore, that the stated purposes of these
organizations are not sufficiently tied to HB 87 and its provisions. Defs.’ Br. at 20.
Nothing could be further from the truth. As just one example, Plaintiff TFH serves
low-income Georgians and assists them in seeking public benefits. Their mission
is directly undermined by HB 87 provisions that impose additional, and unlawful,
requirements on benefits seekers in the state.
Furthermore, the organizational Plaintiffs are also concretely harmed by HB
87 because their missions have been and will continue to be frustrated as their

9

members and clients will be afraid to gather in public places, attend marches and
meetings, and engage in other advocacy and organizing activities that might bring
them into contact with law enforcement. These Plaintiffs will face diminished
membership and serve fewer clients if the law takes effect. For example, Plaintiff
Alterna “has already experienced a significant drop in attendance at events as well
as a decrease in clients since HB 87 passed.” Compl. ¶ 35. This faith-based social
services group “has already been forced to cancel some of its English-language
classes” and otherwise alter programming as a result. Id. If HB 87 takes effect,
Alterna anticipates a steeper decline in attendance and demand for services. Id.
Other Plaintiff organizations are facing similar decreases. See Id. at ¶¶ 18-19
(GLAHR), 21 (SEIU), 23-25 (Joint Board), 37 (CLILA), 39 (Instituto), 42 (CPA);
see also Nicholls Decl. ¶ 9 (GLAHR); America Gruner Decl. ¶ 15 (CLILA); Flores
Decl. ¶ 13 (Alterna); Ali-Beik Decl. ¶¶ 4, 6-9 (Dream Activist.org); GonzalezLamberson Decl. ¶¶ 9-10 (Instituto); Raynor Decl. ¶¶ 5, 9-10 (Joint Board). These
kinds of harms to the missions of organizational Plaintiffs have routinely been
deemed sufficient to establish standing. See NAACP v. State of Ala. ex rel.
Patterson, 357 U.S. 449, 459-60 (1958) (holding that association has standing to
enjoin statute that would cause association’s membership to be diminished);
Browning, 522 F.3d at 1166 (finding standing where organization had to cancel

10

specific projects in response to an allegedly unconstitutional statute); see also Am.
Fed'n of Gov't Employees Local 1 v. Stone, 502 F.3d 1027, 1033 (9th Cir. 2007)
(“an increased difficulty in recruiting union members qualifies as a concrete and
demonstrable injury”) (quotation omitted).
2. The Organizational Plaintiffs Have Standing on Behalf of
Their Members
In addition to the harms that the Plaintiff organizations will suffer on their
own behalf, a number of the Plaintiff organizations have standing to raise claims
based on the additional ground that their members will be harmed by HB 87.
Hunt, 432 U.S. at 343; Stincer, 175 F.3d at 882. For several of the Plaintiff
organizations, their members are at high risk of suffering specific harms from HB
87’s unconstitutional provisions, including arrest and prosecution, for all the
reasons set forth below in Sections II.B and II.C below. Several of the
organizational Plaintiffs have alleged that they do not condition membership on
citizenship or immigration status, and their members or immediate family may be
undocumented. See, e.g., Compl. ¶¶ 19 (GLAHR); 34 (Alterna); 26 (CLILA).
Other organizational Plaintiffs have alleged that their members, even if lawfully
present in the United States, do not have access to the identity documents
prescribed by HB 87. See, e.g., Compl. ¶¶ 24 (some Joint Board members do not
have access to prescribed identity documents); 27 (DREAM Activist.org. members
11

have lawful status but no access to prescribed identity documents); 31 (TFH
volunteers and residents—nearly all of whom are homeless—seldom carry identity
documents); 41 (many CPA members who are elderly or struggling to make ends
meet do not have prescribed identity documents). In addition, Plaintiff SEIU,
through its local affiliate, the Joint Board, represents approximately 4,000
employees in the state, 60 percent of whom are members, 15 to 20 percent of
whom are Latino, and some of whom are other racial minorities. Id. at ¶ 20.
Members or clients of these Plaintiffs are at imminent risk of unconstitutional
prolonged detention, loss of access to services or benefits, or even prosecution
under HB 87’s sweeping provisions. See Humanitarian Law Project, 130 S. Ct.
2713 at *13 (finding standing for plaintiffs to bring a pre-enforcement challenge to
a criminal law where they “claimed that they wished to provide support for the
humanitarian and political activities” of two organizations, “but that they could not
do so for fear of prosecution” under the challenged law).
B. Harms to Plaintiffs Related to Interrogation and Extended
Detentions Pending Immigration Status Verification
Both the individual Plaintiffs and members of the organizational Plaintiffs
are subject to unlawful stops and improper extension of stops by law enforcement
for the purposes of questioning about their immigration status under Section 8 of
HB 87. Defendants assert that these fears are unfounded and that any potential
12

injuries from Section 8 are speculative. Defs.’ Br.. at 14-15; 23-24. However,
Defendants ignore the plain purpose of Section 8: to include within virtually every
encounter with state and local law enforcement an investigation of individuals’
immigration status. HB 87’s immigration verification provision constitutes a
departure from law enforcement norms, as immigration investigations do not
normally occur during routine encounters such as traffic stops, and its effects on
Plaintiffs are far from speculative. For example, Plaintiffs such as Jane Doe #2 or
members of DREAM Activist.org who have deferred action from the federal
government are at great risk of being deemed to lack valid immigration status by
Georgia law enforcement officials, and therefore being subjected to prolonged
detention and arrest under Section 8, even though federal immigration officials are
aware of their presence in the country and have elected not to deport or detain
them. See Compl. ¶ 58 (Jane Doe #2 was granted a deferred action by the federal
government, but has no paperwork to show her status and lacks the qualifying
identity documents enumerated by HB 87); Mohammad Abdollahi Ali-Beik Decl.
¶ 8 (DREAM Activist.org members have been granted deferred action but lack
qualifying identity documents).
The individual Plaintiffs and members of the organizational Plaintiffs will be
subjected to extended police stops and detention based on their race or ethnicity if

13

HB 87 takes effect because the law authorizes investigation of immigration status.
Indeed, individual Plaintiffs and members of the organizational Plaintiffs have
been subjected to unfounded police stops and faced questioning regarding their
identity or immigration status in Georgia jurisdictions where officers have already
implemented the procedures mandated as a matter of state law by HB 87. See
Compl. ¶ 21 (Latino SEIU members and their families have already been stopped
by local law enforcement and asked for proof of status); ¶ 24 (Joint Board
members have reported additional police scrutiny since HB 87 passage; some
members lack qualifying identity documents and are at risk of lengthy detention); ¶
53 (John Doe #1 has been subject to racial profiling in the past and fears future
racial profiling because of his dark hair and skin); ¶ 56 (John Doe #2 has been
subject to racial profiling in the past and now drives as little as possible because he
fears future racial profiling).4 It is especially evident that such individuals should
expect yet more stops and questioning statewide if HB 87 goes into effect. Eliseo
Medina Decl. (Doc. 29-26) ¶ 8; Harris Raynor Decl. ¶¶ 4, 6-7; Speight Decl. (Doc.
29-8) ¶¶ 7-11; Kennedy Decl. (Doc. 29-6) ¶¶ 5-9; Piñon Decl. (Doc. 29-16) ¶¶ 5-8;
4

While Defendants attempt to argue that racial profiling prior to the effective date
of HB 87 has no relevance to the case (Defs.’ Br. at 49), the fact that such
misconduct is already occurring in jurisdictions that, even before HB 87’s
implementation, are inappropriately attempting to verify immigration status lends
substantial weight to Plaintiffs’ fears that similar misconduct will occur if HB 87 is
implemented and will cause even greater injury.
14

Howe Decl. (Doc. 29-9) ¶¶ 5–7, 11; Jane Doe #1 Decl. (Doc. 29-12) ¶¶ 3-4, 7-8;
Jane Doe #2 Decl. (Doc. 29-5) ¶¶ 8-11; Singh Decl. (Doc. 29-17) ¶¶ 4, 6-7; John
Doe #1 Decl. (Doc. 29-18) ¶¶ 8, 10-11; John Doe #2 Decl. (Doc. 29-19) ¶¶ 3-6, 8;
Bridges Decl. (Doc. 29-7) ¶¶ 9-16; Edwards Decl. (Doc. 29-10) ¶¶ 6- 8; Sharon
Gruner Decl. (Doc. 29-11) ¶¶ 3-8; see also Silva America Gruner Decl. ¶¶ 15-17
(noting same fear in community); Anton Flores Decl. ¶¶ 8-12 (same); Adelina
Nicholls Decl. ¶¶ 12, 14, 18-21 (same).
The Defendants attempt to dismiss these concrete injuries by claiming that
use of race or ethnicity is specifically barred by HB 87’s text. This ignores the fact
that that provision has a broad exception allowing consideration of race or
ethnicity “to the extent permitted by the Constitutions of Georgia and the United
States,” O.C.G.A. § 17-5-100(d), and that some courts have suggested that factors
such as race or ethnicity can be relevant in the immigration enforcement context,
notwithstanding the fact that there is also strong authority prohibiting reliance on
racial and ethnic appearance in this context. See United States v. Cruz-Hernandez,
62 F.3d 1353, 1356 (11th Cir. 1995) (permitting consideration of Hispanic
appearance by a Border Patrol officer to establish reasonable suspicion that an
individual lacked immigration status); cf. United States v. Montero-Camargo, 208
F.3d 1122, 1135 (9th Cir. 2000) (Hispanic appearance is “of such little probative

15

value that it may not be considered as a relevant factor where particularized or
individualized suspicion is required.”). For this reason, the boilerplate language in
HB 87 that simply states that law enforcement officers may not consider “race,
color, or national origin” except to the extent permitted by the Georgia and U.S.
Constitutions provides no meaningful protection against the use of these factors in
the enforcement of HB 87. Moreover, as described in Plaintiffs’ law enforcement
declarations, law enforcement officials implementing HB 87 are likely to rely on
factors such as race, ethnicity, national origin, language ability, accent, and
appearance in deciding whether to verify immigration status under Section 8.
George Gascón Decl. (Doc. 29-13) ¶¶ 8-9; Eduardo Gonzalez Decl. (Doc. 29-14)
¶¶ 16-17; Lewis Smith Decl. (Doc. 29-15) ¶ 8.
The Defendants do not contest Plaintiffs’ standing for their right to travel
claim, nor could they. Plaintiffs Piñon and Singh hold Washington State driver
licenses and reside in or plan to reside in Georgia soon. Compl. 51-52; see also
Piñon Decl. ¶¶ 2-3, 7; Singh Decl. ¶ 2. They will regularly drive in Georgia, and
will curtail their travel in Georgia out of fear of being stopped by law enforcement
and subject to prolonged questioning and detention since their validly issued
Washington State driver licenses do not entitle them to a presumption that they are
lawfully present in the United States under HB 87. See Piñon Decl. ¶¶ 2-3, 7;

16

Singh Decl. ¶ 2. Plaintiffs Piñon and Singh will suffer irreparable harm due to the
limitation on their freedom of movement and their reduction in travel in order to
avoid police interrogation. See Piñon Decl. ¶ 8; Singh Decl. ¶¶ 4-7. This fear is
neither speculative nor conjectural.
As Defendants admit, Defs.’ Br. at 12, Plaintiffs need not violate any law or
ordinance to come within the reach of Section 8’s verification of immigration
status, and an officer investigating a potential violation of law (including HB 87’s
new criminal provisions) may opt to detain individuals in order to verify
immigration status under Section 8. Under Section 8, law enforcement officers
may verify immigration status in the course of any criminal investigation, whether
or not anyone is ever charged with violating the law.
Defendants characterize the individual Plaintiffs’ allegations of threatened
harm from HB 87 as mere generalized or hypothetical fears, relying principally on
City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Defs.’ Br. at 13-14. However,
unlike in Lyons, where the plaintiff could not establish that the next time he was
stopped he would again be subjected to a chokehold, in this case when individual
plaintiffs are again stopped there is a statute that specifically authorizes officers to
prolong their detention to verify their immigration status. See Church v. City of
Huntsville, 30 F.3d 1332, 1339 (11th Cir. 1994) (city’s alleged “custom, practice

17

and policy of arresting, harassing and otherwise interfering with homeless people”
for engaging in ordinary activity “is therefore distinguishable from Lyons, where
the alleged policy did not necessarily authorize the constitutional deprivation
Lyons suffered”). Moreover, for the organizational Plaintiffs with many members,
the likelihood of suffering such harm is greater. The chain of events required
before the plaintiff in Lyons would have been subjected to an unconstitutional
chokehold again is simply not analogous to the implementation of a statewide law
that would allow any law enforcement officer to verify immigration status during
the course of any criminal investigation—no matter how minor.
For all of these reasons, the likelihood that Plaintiffs will be injured by HB
87 Section 8, if it goes into effect, is neither hypothetical nor merely subjective, but
certainly sufficient to satisfy Article III’s “case or controversy” requirement.
C. Harms to Plaintiffs based on Threat of Criminal Prosecution
Most of the organizational Plaintiffs and several of the individual Plaintiffs
also have standing to challenge the provisions of HB 87, including Section 7, that
create new state law immigration offenses. Section 7 creates state criminal
offenses for transporting, harboring, or concealing “illegal aliens.” As
demonstrated by the fact that the state legislature considered it necessary to create
specific exemptions to the law for “person[s] providing privately funded social

18

services,” these provisions sweep broadly and cover the conduct of many persons
who provide assistance to non-citizens without federal authorization to remain in
the United States. For example, Plaintiff DREAM Activist.org “harbors
undocumented students in houses within the State of Georgia and provides
transportation to undocumented students with and without deferred action grants”
for conferences and trainings sessions in Georgia which are fundamental to their
mission of legal reform. Compl. ¶ 28. DREAM Activist.org will continue to
conduct such activities, including providing transportation to meetings in Georgia
for undocumented students from around the nation. Id. If HB 87 takes effect,
these activities could expose DREAM Activist.org members to criminal liability.
Id. at ¶¶ 31, 35, 37. These provisions also apply to the current activities of
individual Plaintiffs and some organizational Plaintiffs. Id. at ¶¶ 43-44 (Plaintiff
Bridges gives rides to undocumented friends in Georgia on a daily basis, has
driven undocumented friends into Georgia from Florida, and has housed
undocumented individuals in his home, and he will continue each of these
activities in the future); Id. at ¶ 46 (Plaintiff Speight regularly transports
undocumented students and other undocumented individuals in his union-issued
van); Id. at ¶ 47 (Plaintiff Howe, through his church community service program,
transports families and individuals, including those who are undocumented, to

19

hospital visits or other appointments); Id. at ¶ 48 (Plaintiff Edwards transports
people, including those who are undocumented, to places of worship and to
locations which provide medical assistance; he also helps to plan events that
include housing undocumented individuals); Id. at ¶ 49 (Plaintiff Gruner transports
and shelters undocumented individuals as part of her volunteer work); Id. at ¶ 50
(Plaintiff Jane Doe #1 drives her incapacitated husband, who lacks legal status, to
doctor’s appointments and physical therapy); Id. at ¶ 60 (Plaintiff Kennedy, an
immigration lawyer, meets with, gives legal advice to, and transports
undocumented persons); Id. at ¶ 25 (Plaintiff SEIU transports potential members to
union meetings and events, but will be chilled from doing so if HB 87 takes effect).
Defendants do not assert that all of this conduct is exempted from liability under
Section 7.
While Defendants note that Plaintiffs would have to “be ‘committing
another criminal offense’ or ‘acting in violation of another criminal offense’” to
establish standing to be subject to Section 7 (Defs.’ Br.. at 14), this prerequisite is
very broad. As law enforcement experts explain, it is virtually impossible to avoid
committing minor traffic offenses and police officers wishing to stop certain
individuals need wait only a limited time in order to have a pretextual reason to
stop that individual. See David A. Harris, “Driving While Black” and All Other

20

Traffic Offenses, 87 Crim. L. Criminology 544, 545 (1997) (“In the most literal
sense no driver can avoid violating some traffic law during a short drive, even with
the most careful attention.”); see also Gascón Decl. ¶ 9 (“[A]n officer motivated by
racial or ethnic discrimination or by race-based stereotypes of what an illegal
immigrant looks like can easily find a pretext for stopping an individual, for
example, by following a car until a minor traffic violation occurs.”).
For all of these reasons, the Plaintiffs clearly have standing to challenge
Section 7. Because of the broad authority that HB 87, including Section 7, gives to
law enforcement officers, the application of these provisions to Plaintiffs is beyond
the Plaintiffs’ control.
The Defendants also question Plaintiffs’ ability to challenge Section 19’s
“secure and verifiable documents” requirement as “speculative and unfounded.”
Defs.’ Br. at 16. Defendants downplay the injury from Section 19 and fail to
recognize the injury to Plaintiffs who will be prohibited from using a validly issued
identification document from a foreign government for a range of basic daily
functions such as accessing public services and buildings. See Compl. ¶¶ 54 (John
Doe #1 worries that his family will no longer be able to use consular identification
documents to access WIC services for his U.S. citizen siblings and relatives); ¶ 56
(John Doe #2 will be harmed because HB 87 prohibits him from relying on his

21

matricula to do such routine activities as open utilities accounts in his name, seek
police assistance, and present identification at a hospital in Rome, all of which he
has done in the past); see also Nicholls Decl. ¶ 16 (many GLAHR members use
matriculas to enroll their children in school or to gain admission to public
buildings). These are concrete and non-speculative harms.
In sum, at this state of the litigation, Plaintiffs have more than sufficiently
established standing for all of their claims.
III.

PLAINTIFFS HAVE PROPERLY STATED A PREEMPTION
CLAIM

We have previously explained, in our Motion for a Preliminary Injunction,
why HB 87 is preempted by federal immigration law and the federal government’s
exclusive authority to regulate immigration. We incorporate that explanation here
and offer the following additional points in response to defendants’ brief:
1.

Defendants argue at length that Plaintiffs’ federal preemption claims

cannot be brought under 42 U.S.C. § 1983. But as defendants go on to concede,
even if § 1983 does not provide the cause of action, “the Supreme Court has
determined Federal-question jurisdiction over a preemption claim is proper” and
this Court is “obligat[ed] to follow this [Supreme Court] precedent.” Defs.’ Br. at
28 n.4. Thus, even if it were correct, the State’s § 1983 argument as to preemption

22

would not result in dismissal of any of Plaintiffs’ claims or causes of action.5
2.

Defendants also fundamentally misconstrue the plurality opinion in

Chamber of Commerce v. Whiting, ___ U.S. ___, 131 S. Ct. 1968 (2011) (cited in
Defs.’ Br. at 32, 34, 35). Whiting involved an Arizona statute, the Legal Arizona
Workers Act, that was enacted pursuant to an explicit authorization in federal law
for state “licensing” laws relating to unauthorized workers and that does not
resemble HB 87 in any respect. Id. at 1993 (citing 8 U.S.C. § 1324a(h)(2)).6 In
5

Accordingly, it is unnecessary to resolve this question on this motion.
Nevertheless, Plaintiffs note that Defendants vastly overstate the holding of
Arrington v. Helms, 438 F.3d 1336 (11th Cir. 2006). In Arrington, the Court of
Appeals did not “disavow” § 1983 claims with respect to social programs, but
instead explained that the tests in Blessing v. Freestone, 520 U.S. 329 (1997), and
Gonzaga University v. Doe, 536 U.S. 273 (2002) must be applied to determine
whether there is an enforceable right under the particular statute at issue. Courts
have repeatedly found that the provisions in the statutes at issue in this litigation,
including the Food Stamp Act and the Housing and Community Development Act,
provide such a right. See, e.g., Gonzalez v. Pingree, 821 F.2d 1526 (11th Cir. 1987)
(Food Stamp Act); Victorian v. Miller, 813 F.2d 718 (5th Cir. 1987) (same);
M.K.B. v. Eggelston, 445 F.Supp. 400 (S.D.N.Y. 2006) (same); Johnson v.
Housing Authority of Jefferson Parish, 442 F.3d 356 (5th Cir. 2006) (Housing Act
and implementing regulations); Wright v. City of Roanoke Redevelopment &
Housing Authority, 479 U.S. 418 (1987) (Housing Act and implementing
regulations).
6
Of course, the later Arizona law that does resemble HB 87, SB 1070, has been
found largely preempted by the same lower courts that found the Legal Arizona
Workers Act non-preempted. See United States v. Arizona, __ F.3d __, 2011 WL
1346945, at *4-*10, *15-*19 (9th Cir. Apr. 11, 2011), aff’g 703 F. Supp. 2d 980
(D. Ariz. 2010). It is this later Arizona law that includes a provision discriminating
against certain out-of-state licenses – not the statute at issue in Whiting. See 703 F.
Supp. at 993 (describing A.R.S. § 11-1051(B)(4), enacted by SB 1070); cf. Defs.’
23

this case, Defendants have not claimed any federal authorization for any of HB
87’s provisions other than, perhaps, the public benefits provisions in Sections 17
and18, which is addressed below. See Defs.’ Br. at 32-37.
Whiting does not undermine any of the decisions Plaintiffs rely on in their
brief, and it certainly does not “clearly resolve . . . adverse to Plaintiffs,” Defs.’ Br.
at 34, any claim that HB 87 interferes with federal immigration authority, foreign
policy, or federal law. Rather, Whiting underscores the federal government’s
primary role in multiple ways: first, by looking to federal authorization as the
touchstone of the Court’s preemption analysis, and second, by carefully analyzing
whether even an explicitly authorized state law contained provisions that could
interfere with federal programs, goals, or objectives. Whiting, 131 S. Ct. at 197781.
Indeed, the conclusion that Defendants cite from Whiting—that the federal
employer sanctions program “operates unimpeded by the state law,” Defs.’ Br. at
23—comes only after that careful analysis and only in light of Congress’ express
authorization of the state law. Whiting, 131 S. Ct. at 1977-81. Here, there is ample
factual and legal basis for the conclusion that Georgia’s unauthorized immigration

Br. at 44 n.11 (referring to nonexistent A.R.S. § 2-11-7(8)(B)(4) as “virtually
identical” to HB 87 driver’s license provision and stating that it is included in
Whiting statute).
24

provisions interfere with the federal program of immigration regulation. See
Compl. ¶¶ 114-119, 122 (complexity of immigration status; individuals in
intermediate statuses); 120-21 (federal verification procedures); 136 (Presidential
criticism); 137 (interference with federal immigration priorities); 138-39
(interference with foreign affairs); Pls.’ P.I. Br. 7-31.
Defendants’ theory that the state may institute its own criminal laws
governing interactions with unauthorized immigrants because such laws fall into
an area where both the state and federal government “have concurrent jurisdiction .
. . and neither need yield to the other,” Defs.’ Br. at 36-37, finds no support in
Whiting and flies directly in the face of the Supreme Court’s clear holding in Hines
v. Davidowitz, 312 U.S. 52 (1941). Whiting leaves Hines’ longstanding holding
untouched and does not explicitly or implicitly suggest that the state and federal
governments have concurrent authority in immigration matters, especially in the
matter of immigration-related crimes, which are both defined and enforced
sparingly and selectively by the federal government.
Indeed, in Hines the Supreme Court struck down a state criminal statute
relating to immigration, explaining that where “the federal government, in the
exercise of its superior authority in this field, has enacted a complete scheme of
regulation and has therein provided a standard,” “states cannot, inconsistently with

25

the purpose of Congress, conflict or interfere with, curtail or complement, the
federal law, or enforce additional or auxiliary regulations.” 312 U.S. at 66-67
(emphases added). The fact that the state and federal laws in Hines addressed
“identical” subjects weighed in favor of preemption, not against it. As the
Supreme Court has since reiterated, “conflict is imminent when two separate
remedies are brought to bear on the same activity.” Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 380 (2000) (internal citations omitted). In Whiting, the
same concern is not presented because the explicit federal authorization for the
creation of state remedies implies that “Congress did not intend to prevent the
States from using appropriate tools to exercise that authority.” Whiting, 131 S. Ct.
at 1981. By contrast, there is no authorization for the criminal provisions in HB 87
Section 7.
3.

Finally, Defendants’ broad invocation of federally authorized public

benefit eligibility restrictions entirely fails to address the specific conflict between
HB 87’s requirement that public benefits applicants produce an identification
document approved by the state Attorney General, on the one hand, and federal
statutes and regulations governing the Supplemental Nutritional Assistance
Program (“SNAP”) and federally subsidized housing, on the other. Plaintiffs

26

specifically raised these conflicts in the Complaint at ¶¶ 131-34.7
Section 17 of HB 87 is not focused on the verification of lawful presence as
it related to eligibility for benefits. Prior state law already accomplished that.
Rather, Section 17 specifically requires that applicants for public benefits provide
at least one approved identity document, O.C.G.A. § 36-50-1(e)(1), from an
exclusive list to be published by the Attorney General, § 36-50-2(b)(3). This
additional requirement, which applies to citizens as well as non-citizens applying
for federally funded food and housing assistance, is not authorized by any of the
federal provisions Defendants cite. Defendants’ attempt to rely on 8 U.S.C. § 1625
is unavailing, since it pertains only to state and local public benefits. Moreover,
Congress specifically maintained federal control over verification of lawful
presence for federal public benefits, delegating authority to the Attorney General to
promulgate regulations specifying the procedures, and requiring that “a State that
administers a program that provides a Federal public benefit shall have in effect a
verification system that complies with the regulations,” 8 USC § 1642.8 HB 87
7

Plaintiffs did not specifically address public benefits in their Preliminary
Injunction brief given the January 1, 2012 effective date of the relevant provisions.
P.I. Br. at 3 n.1.
8
The federal laws and regulations that HB 87 conflicts with ensure that the most
vulnerable citizens and lawful residents can receive basic food and housing
assistance. Low-income and elderly individuals frequently lack identity
documents that others think of as commonplace, and homelessness, disability,
27

conflicts with the requirements of federal law.
In a final attempt to avoid conflict, Defendants note without elaboration that
HB 87 provides for an exclusion where “required by federal law.” Defs.’ Br. at 34.
This exclusion, however, appears in a separate section. Moreover, Defendants do
not offer specific assurance that this exclusion and the others that appear in Section
19 (pertaining to the use of designated documents for official purposes) will be
interpreted to apply to Section 17, nor do they specifically state that federal rules
governing verification of identity for SNAP at 7 C.F.R. § 273.2(f)(1)(vii)
(implementing 7 USC § 2020(e)(3)) and federally subsidized housing, 24 CFR
§ 5.216 (implementing 42 USC § 3543) will be interpreted to meet this exclusion.

incapacity, or the need to flee domestic violence only exacerbate the problem. See,
e.g., Sonji Jacobs & Megan Clarke, No ID? Votes Cast Can Become Castoffs, Atl.
J. Const., Nov. 2, 2007, at 1A, available at http://archive.fairvote.org/?page=9&
articlemode=showspecific&showarticle=2856 (198,000 registered Georgia voters
lack a driver’s license or alternate state photo identification document); Common
Cause/Georgia v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005) (one in four
registered voters older than 65 owns no driver’s license or Georgia ID card); Anita
Beatty Decl. ¶15 (Doc. 29-23); Brennan Center for Justice, Citizens without Proof:
A Survey of America’s Possession of Documentary Proof of Citizenship and Photo
Identification, Nov. 2006 (low-income citizens twice as likely to lack photo
identification). The burdens of a new identification requirement fall particularly
heavily on certain groups of citizens. A study of registered voters in Georgia
found that African-Americans and Latinos were approximately twice as likely as
Whites to lack a driver’s license or other state-issued photo identification
document. M. V. Hood III & Charles S. Bullock, III, Worth a Thousand Words?
An Analysis of Georgia’s Voter Identification Statute (2004), Dept. of Political
Science, Univ. of Georgia, Figure 1.
28

Were they to do so, Plaintiffs’ conflict preemption claims regarding Section 17
would be resolved.
IV.

PLAINTIFFS HAVE PROPERLY STATED A CLAIM UNDER
THE FOURTH AMENDMENT

Plaintiffs have previously explained why HB 87 violates Plaintiffs’ Fourth
Amendment rights. Pls. P.I. Br. (Doc. 29-1) 31-36. That explanation is
incorporated herein, and Plaintiffs raise the following additional arguments in
response to Defendants’ motion to dismiss.
Strikingly, Defendants do not deny any of Plaintiffs’ central allegations
regarding the Fourth Amendment claim. Defendants do not deny that: (1) HB 87
grants officers broad authority to extend detentions in order to investigate
immigration status, beyond the time justified by the original stop (Defs.’ Br.. at 8;
Compl. ¶¶ 77, 78, 80); (2) Section 8 establishes an immigration status verification
process that will greatly prolong ordinary police stops (Compl. ¶¶ 83, 85); (3) on
average it would take the federal government over 80 minutes to respond to an
immigration query from peace officers and, in some cases, it could take more than
two days to respond (Compl. ¶ 86); (4) individuals who are not required to carry
any state-approved documentation, such as pedestrians, passengers in cars, and
drivers from Washington State, are subject to immigration status investigation if
apprehended on probable cause (Compl. ¶¶ 51-52, 81); and (5) a large number of
29

individuals, including several individual Plaintiffs and members of the
organizational Plaintiffs, are at significant risk of extended detention under Section
8 because they cannot produce a state-approved identity document even though
they are citizens or foreign nationals residing in the United States with the
permission of the federal government (Compl. ¶¶ 51-52, 57-58). See generally P.I.
Br. at 31-36.
Instead of disputing any of these allegations that establish a clear Fourth
Amendment violation, Defendants argue that HB 87 only operates to extend
detention where initially there is probable cause to believe the individual
apprehended has engaged in criminal activity. Defs.’ Br.. at 38. And because an
officer can not only detain but also ultimately arrest and book an individual where
probable cause exists to believe that he or she has committed even a minor
criminal offense, Defendants argue that the fact that HB 87 prolongs detention for
some otherwise invalid reason, such as investigating immigration status, is of no
consequence. Defs.’ Br.. at 40. Defendants’ theory misses the point that Supreme
Court precedents specifically forbid the unreasonable extension of initially valid
seizures, absent new suspicion that justifies the additional detention.
Bedrock Fourth Amendment principles provide that, while an officer may
ask questions unrelated to the original purpose of a stop, such questioning must not

30

unreasonably prolong the stop. See Muehler v. Mena, 544 U.S. 93, 100-01 (2005);
Arizona v. Johnson, 129 S. Ct. 781, 788 (2009); United States v. Hernandez, 418
F.3d 1206, 1209 n.3 (11th Cir. 2005) (extending Muehler to the traffic stop
context). Once the purpose of an initial apprehension has been effectuated, the
stop “may not last ‘any longer than necessary to process the [original] violation’
unless there is articulable suspicion of other illegal activity.” United States v.
Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001) (citing United States v. Holloman,
113 F.3d 192, 196 (11th Cir. 1997)); United States v. Pruitt, 174 F.3d 1215 (11th
Cir. 1999); United States v. Viezca, 555 F. Supp. 2d 1254, 1262 (M.D. Ala. 2008)
(“The officer can lawfully ask questions, even questions not strictly related to the
traffic stop, while waiting for a computer check of registration or examining a
driver’s license so long as it does not prolong[ ] beyond the time reasonably
required to complete that mission.”) (internal citation omitted).
Thus, Defendants’ theory is contrary to well-established Supreme Court and
Eleventh Circuit limitations on warrantless detention. An officer cannot extend a
stop without additional suspicion of unlawful activity; the fact that he could have
arrested the individual for the original offense—but actually decided to, for
example, issue only a citation for such offense and release the individual—does not
justify any additional detention for a different purpose. If the rule were otherwise,

31

there would be no need for courts to ever require additional suspicion to lawfully
extend an initially valid stop. That is not the law.
Indeed, courts have found Fourth Amendment violations when officers
prolong stops without the necessary additional suspicion. See, e.g., United States
v. Tapia, 912 F.2d 1367, 1370 (11th Cir. 1990) (finding that officer’s further
investigation of a driver originally stopped for speeding unlawfully prolonged the
detention because of lack of suspicion of criminal activity beyond a speeding
citation); United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308 n.6 (10th Cir.
2006) (although trooper’s initial stop of driver for speeding was lawful, his further
questioning unconstitutionally prolonged the detention, since there was no dispute
that the traffic stop had ended prior to the additional inquiry); United States v.
Urrieta, 520 F.3d 569 (6th Cir. 2008) (finding that although the officer lawfully
stopped plaintiff for lacking a valid registration sticker and non-working taillights,
the officer did not have reasonable suspicion to continue to detain plaintiff to
investigate whether he was involved in a drug-related crime based on among other
things his Mexican driver’s license, inability to locate Mexican passport, and a
“fully packed” car); United States v. Blair, 524 F.3d 740, 752 (6th Cir. 2008)
(“holding that the remainder of the stop violated the Fourth Amendment” where
“action extended the scope and duration of the stop beyond that necessary to issue

32

a citation for a tag-light violation” and without “develop[ment of] reasonable,
articulable suspicion of criminal activity by that point”); United States v. Peralez,
526 F.3d 1115 (8th Cir. 2007) (while the “traffic stop for an obstructed license was
lawful at its inception,” “[t]he off-topic questions more than doubled the time
[plaintiff] was detained” and the “extent and duration of the trooper’s focus on
non-routine questions prolonged the stop ‘beyond the time reasonably required’ to
complete its purpose”). Cf. United States v. Hernandez, 418 F.3d 1206, 1211 (11th
Cir. 2005) (“Even if the duration of the pre-consensual detention in this case did
extend beyond what might have been reasonable for just a routine traffic stop, the
facts that came to light from the beginning of the stop—facts giving rise to
reasonable suspicion that an additional crime was being committed—were more
than sufficient to justify this detention of no more than seventeen minutes.”)
(emphasis added).
Defendants’ suggestion that the existence of probable cause at the time of a
stop or arrest is an absolute bar to any Fourth Amendment claim relating to a
subsequent Fourth Amendment violation based on unreasonable prolonging of the
stop, Def. Br. at 39, finds no support in the law. Although the existence of
probable cause at the time of an arrest might be a bar to a challenge to the
lawfulness of that arrest, see Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th

33

Cir. 1990), a finding of probable cause at the inception of a stop clearly does not
immunize officers from any unlawful conduct taken after the arrest. See, e.g.,
Illinois v. Caballes, 543 U.S. 405, 407 (2005) (“A seizure that is justified solely by
the interest in issuing a warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that mission.”); Brown
v. City of Huntsville, 608 F.3d 724 (11th Cir. 2010) (finding that probable cause
was an absolute bar as to a claim of false arrest, but declining to grant summary
judgment on claim of excessive force following the lawful arrest).
Defendants are also incorrect to suggest that Section 8’s validity under the
Fourth Amendment must be considered on a case-by-case basis. Def. Br. at 40-41.
Plaintiffs’ claim here is that HB 87 is categorically unconstitutional for authorizing
additional investigations unrelated to the original stop without any further
reasonable suspicion of unlawful conduct. None of the cases cited by Defendants
involve such a claim. In fact, all of the cases that Defendants cite as examples of
reasonably prolonged stops involve circumstances in which the court found that the
extended period of time beyond the original purpose for the stop was otherwise
lawfully justified.9 See United States v. Montoya de Hernandez, 473 U.S. 531
9

Defendants also purport to justify these extended investigations based on
reasonable suspicion that a vehicle may contain illegal aliens under the Supreme
Court’s decision in United States v. Brigoni-Ponce, 422 U.S. 873 (1975).
34

(1985) (finding plaintiff’s “detention for the period of time necessary to either
verify or dispel the [officer’s original] suspicion was not unreasonable”); United
States v. Hardy, 855 F.2d 753 (11th Cir. 1988) (finding that the officer “had
probable cause to believe that the driver of the vehicle had violated a Georgia
traffic law” to justify the original stop, and that the “gaps and inconsistencies
observed [by the officer] created a reasonable suspicion justifying the investigative
stop” to determine whether the individual was transporting drugs); Medvar v. State,
286 Ga. App. 177, 178 (2007) (“[W]e find that the deputy had a reasonable
suspicion of criminal activity warranting the additional questions asked and the
continuance of the detention.”); State v. Grant, 195 Ga. App. 859 (1990) (finding
reasonable suspicion existed that the plaintiffs was a drug courier and that the
Defendants’ interpretation of Brigoni-Ponce is mistaken. Brigoni-Ponce held that
only under specific circumstances of the region within 100 miles of an internal
border where agents might actually observe facts giving rise to probable cause to
believe that a person has committed the federal crime of illegal entry, federal
Border Patrol agents may stop a vehicle if they have reasonable suspicion to
believe the vehicle may contain undocumented immigrants. Id. at 877. As
discussed above, HB 87 goes far beyond reasonable suspicion to believe that a
person has committed a federal crime and permits state and local officers to
investigate immigration status which, unlike the federal crime of illegal entry, is
not readily observable by officers in the field and far from the border. And state
and local officers do not have the authority to enforce civil immigration violations
under these circumstances. In any event, Defendants argument is inconsequential.
Section 8 of HB 87 does not require any reasonable suspicion of even a civil
immigration violation. Instead, Section 8 is triggered in situations in which a
person simply does not have a specific identity document, which is not in itself
evidence of any wrongdoing, much less criminal activity.
35

detention was not unreasonably prolonged while officers diligently awaited the
arrival of a narcotics dog).
Here, Section 8 will unavoidably operate to extend ordinary police
encounters beyond what is constitutionally authorized. Compl. ¶ 87. To take just
one common scenario, peace officers throughout Georgia regularly issue citations
for minor offenses such as traffic offenses, which take, on average, only a matter of
minutes. Id. at ¶ 88. Defendant does not deny that in these routine cases that
otherwise ordinarily would be resolved rapidly, the immigration status
investigation authorized by HB 87 will be the only basis for continuing to detain
the individual in question. HB 87’s programmatic extension of detention for
unrelated purposes simply cannot be squared with the Fourth Amendment. See
United States v. Peralez, 526 F.3d 1115, 1120 (8th Cir. 2008) (“[o]nce an officer
has decided to permit a routine traffic offender to depart with a ticket, a warning,
or an all clear, the Fourth Amendment applies to limit any subsequent detention or
search”). And, in fact, HB 87 does not provide any time limits or constitutional
restraints (and Defendants have not suggested that any limits exist) on the
immigration status verification process authorized under Section 8.
Lastly, Defendants have not moved to dismiss Plaintiffs’ claim that HB 87
authorizes peace officers to unlawfully arrest and detain individuals solely on the

36

basis that they are suspected to be in violation of federal civil immigration laws.
Compl. ¶ 92 (citing O.C.G.A. § 17-5-100(e)). Such action is not limited to conduct
already authorized by federal law. O.C.G.A. § 17-5-100(e) (specifically
authorizing peace officers to “detain[] such suspected illegal alien”). In fact, as
discussed in Plaintiffs’ Motion for a Preliminary Injunction, HB 87 goes beyond
any Congressional authorization to enforce civil immigration laws by allowing
officers to broadly detain and arrest individuals for the civil violation of unlawful
presence (Pls.’ P.I. Br. 16-19), even though it is well established that “an arrest
without probable cause to believe a crime ha[s] been committed” violates the
Fourth Amendment.10 Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990)
(emphasis added); Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002)
(dismissing characterization of offense as non-criminal, and justifying a fully
custodial arrest on a finding that the offense for which plaintiff was detained “is a
criminal law”) (emphasis in original); McNally v. Eve, 2008 WL 1931317, at *6
(M.D. Fla. May 2, 2008) (“[W]hether [officer] was entitled to effectuate a full
10

The only exception to the requirement that the suspicion be of criminal activity
is for civil traffic code violations. The Supreme Court has “carve[d] out an
exception in the context of traffic stops, i.e., a stop is ‘reasonable’ where an officer
suspects an individual has committed a traffic violation.” United States v.
Choudhury, 461 F.3d 1097, 1102 (9th Cir. 2006) (citing Whren v. United States,
517 U.S. 806, 810 (1996)). No similar exception has been created for civil
immigration violations, such as unlawful presence in the United States.
37

custodial arrest hinges on whether the . . . noise ordinance is noncriminal in
nature.”); United States v. Santillanes, 848 F.2d 1103, 1107-10 (10th Cir. 1988)
(holding that the initial stop and questioning of an individual for a non-criminal
reason—a violation of a condition of pretrial release—violated the Fourth
Amendment).
V. PLAINTIFFS HAVE PROPERLY STATED A CLAIM
CONCERNING THE RIGHT TO TRAVEL
Plaintiffs have already briefed this issue and incorporate those arguments
here. This issue has been fully briefed. See Pls.’ P.I. Br.in Plaintiffs’ Brief in
Support of Motion for Preliminary Injunction (hereinafter “P.I. Br.”). Doc. No.
29-1 at 36-41. Plaintiffs agree that this claim is brought on behalf of a class of
individual out-of-state Plaintiffs only.
As acknowledged by Defendants, a constitutional right to travel has been
clearly established by the Supreme Court. Defs.’ Br. at 43. Plaintiffs have
properly pled a violation of the constitutional right to travel.
Defendants raise three arguments challenging this claim. They first argue
that HB 87 does nothing to prohibit individuals from “entering into the state.”
Defs.’ Br. at 43. This argument misunderstands the law on the constitutional right
to travel, which does not require an outright prohibition on entry; an indirect
manner of penalization is sufficient. See Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S.
38

898, 902-03 (1986) (plurality); Pls.’ P.I. Br. 37. Plaintiffs have sufficiently pled
such harm here. Compl. ¶¶ 51, 52, 160, 178-80.
Defendants next argue that Georgia cannot be required to accept out-of-state
driver’s licenses as proof of citizenship if the foreign state does not require proof
of citizenship before issuance. Defs.’ Br. at 44. This argument also misses the
mark. The question raised in the right to travel claim is not whether Georgia must
accept a certain form of identification, but rather whether HB 87 is discriminating
against certain non-resident drivers. It clearly is. HB 87 facially discriminates
against certain out-of-state drivers by denying them a presumption enjoyed by
drivers from all other states.
Finally, Defendants argue that the right to interstate travel is violated only
when states discriminate against new state residents in the provision of benefits.
Defs.’ Br. at 44-45. That is wrong. The right to travel is infringed by “any
classification which serves to penalize the exercise of that right” even in an
“indirect manner,” Soto-Lopez, 476 U.S. at 903 (emphasis added), or treats
residents of other states as “unfriendly alien[s]” rather than “welcome visitor[s],”
Saenz v. Roe, 526 U.S. 489, 500 (1999). See Pls.’ P.I. Br. 39-40. Plaintiffs have
adequately alleged such infringement in this case.
VI.

PLAINTIFFS HAVE PLED A VALID EQUAL PROTECTION
CLAIM
39

Plaintiffs have properly stated a claim that HB 87 Section 19 violates the
Equal Protection Clause of the Fourteenth Amendment because it impermissibly
discriminates on the basis of alienage and national origin. See Comp. ¶¶ 191-92.
Contrary to Defendants’ contentions, Plaintiffs do not argue that HB 87
discriminates against undocumented persons, nor do they argue that HB 87 violates
the Equal Protection Clause because it was motivated by or will result in racially
discriminatory profiling. See Defs.’ Br. 46-48. Rather, Plaintiffs argue that
Section 19 impermissibly discriminates against—and among classes of—noncitizens who have the U.S. government’s permission to reside in the United States.
Section 19 violates the Equal Protection Clause because it operates in such a
manner as to deny access to governmental services, the securing of governmental
licenses, and contracting with governmental entities based on the national origin of
the presenter of the identification. See Compl. ¶ 191.
State laws that discriminate on the basis of alienage violate the Equal
Protection Clause unless the state can show that they are necessary to serve a
compelling state interest and that there is no less restrictive alternative that would
achieve that state goal. See Bernal v. Fainter, 467 U.S. 216 (1984) (state laws
discriminating based on alienage subject to strict scrutiny); see also Graham v.
Richardson, 403 U.S. 365, 376 (1971) (invalidating the state statute distinguishing

40

between citizens and non-citizens). Georgia has not even approached that high bar
with HB 87.
Section 7 of HB 87 also violates the Equal Protection Clause because it
restricts the exercise of the right of association by citizens of Georgia and the
United States on the basis of the alienage of those with whom they wish to
associate. See Compl. ¶ 191; see also Adickes v. S.H. Kress & Co., 398 U.S. 144,
173-74 (1970) (noting that white woman who was denied service in defendant’s
restaurant because she was in company of African American would make out
claim of deprivation of rights by showing state-enforced custom of segregating
races in pubic eating places).
VII. PLAINTIFFS HAVE STATED A VALID DUE PROCESS CLAIM
In Count Five of the Complaint, Plaintiffs allege that HB 87 violates the Due
Process Clause of the Fourteenth Amendment by depriving Plaintiffs of the use of
their consular-issued identification documents (“CIDs”) for any official purpose.
Defendants mistakenly contend that Plaintiffs have no claim because they “do not
have a constitutionally protected liberty or property interest in the use of their
CIDs.” Defs.’ Br. 50. Defendants’ error is in their misidentification of the
property interest that is implicated.
Property interests “are created and their dimensions defined by existing rules

41

or understandings that stem from an independent source such as state-law rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972). In this case,
Plaintiffs and many other individuals rely on CIDs as their only photo
identification and means to access fundamental services. For example, Plaintiff
John Doe #2 has used his CID to open accounts at City Hall for water and
electrical service to his home, to seek police assistance, and for identification at a
hospital in Rome. Compl. ¶ 56. Plaintiff John Doe #1 has used his CID, which is
his only photo identification, to access the State Capitol building. Id. at ¶ 54. His
mother and sister use their CIDs to establish their parental identity when obtaining
basic nutrition assistance for their U.S. citizen children. Id. As these examples
illustrate, photo identification has become a requirement in today’s society in an
ever-growing range of contexts. Plaintiffs and many similarly-situated Georgians
are eligible for and entitled to these services, but since CIDs may be their only
form of photo identification to access the services, HB 87 threatens to deprive
them of the services. The deprivation of access to such fundamental services to
which Plaintiffs are entitled under current law is the property interest that is at
stake with respect to this count.
VIII. PLAINTIFFS HAVE STATED A CLAIM UNDER 42 U.S.C.
SECTIONS 1981 AND 1983
42

Defendants erroneously characterize Count Six of the Complaint as asserting
“a separate and distinct claim under 42 U.S.C. § 1981,” and discount the reference
to 42 U.S.C. § 1983 in the heading of the claim, in order to contend that Plaintiffs
cannot assert a cause of action under § 1981. However, Plaintiffs are not raising a
separate cause of action under § 1981. By referring to both §§ 1981 and 1983 in
the heading of Count Six, Plaintiffs invoke § 1983 as the cause of action to raise
the substantive claims under § 1981 that provisions of HB 87 impermissibly
discriminate against persons within the State of Georgia on the basis of alienage,
national origin and race, in violation of § 1981. Compl. ¶¶ 189-192. See Butts v.
County of Volusia, 222 F.3d 891, 892 (11th Cir. 2000) (Ҥ 1983 contains the sole
cause of action against state actors for violations of § 1981”). Count Six clearly
puts defendants on notice regarding this claim.
IX.

THIS COURT HAS JURISDICTION OVER PLAINTIFFS’
CLAIMS: THE ELEVENTH AMENDMENT BAR DOES NOT
APPLY TO DEFENDANTS

As Defendants concede, the Eleventh Amendment does not bar suits against
state officers in their official capacities seeking prospective equitable relief to end
continuing violations of federal law. Ex Parte Young, 209 U.S. 123, 156 (1908).
Def. Mot. Dismiss at 55, 58. Plaintiffs seek to enjoin HB 87 on the ground that it
violates the U.S. Constitution in several ways. Under Ex parte Young, Defendants’

43

Eleventh Amendment argument fails.
In making an officer of the state a party-defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional, it is plain that the officer must
have some connection with the enforcement of the act, or else it is merely making
him a party as a representative of the state, and thereby attempting to make the
state a party. Id. at 157. In order for the Ex Parte Young exception to apply, the
state officer must have some responsibility to enforce the statute. Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1341 (11th Cir. 1999).
The Defendants contend that neither the Governor nor the Attorney General
are the proper defendants because they lack any connection to the enforcement of
HB 87, or the state crimes it creates. Defs.’ Br. 55-56. This is flatly wrong under
Georgia law. The Governor signed HB 87, and he is ultimately responsible for the
enforcement of HB 87. Ga. Const. Art. 5 § 2, ¶ 2. The Governor also has the
residual power to commence criminal prosecutions, including overseeing Section 7
of HB 87 which establishes new state crimes for transporting and harboring illegal
aliens. O.C.G.A. § 17-1-2. At the Governor’s direction, the Attorney General has
the authority to institute and prosecute offenses under HB 87. § 45-15-35. The
Commissioner of the Georgia Department of Human Services is responsible for
implementing and enforcing Section 17 of HB 87 by limiting public benefits to

44

those individuals able to provide a “secure and verifiable” identity document. The
Commissioner of the Georgia Department of Community Affairs administers the
Housing Choice Voucher Program and is funded by the United States Department
of Housing and Urban Development (HUD). The Commissioner is, therefore,
responsible for implementing and enforcing the public housing benefits provisions
of HB 87.11 Defendants are therefore appropriate parties against whom prospective
relief could be ordered because their official responsibilities include enforcement
of HB 87’s provisions, including the new state crimes created by HB 87.12
X. PLAINTIFFS’ STATE CONSTITUTIONAL CLAIM
Defendants argue that sovereign immunity bars Plaintiffs’ state
constitutional claims. See Def’s Br. at 58-59. On consideration, Plaintiffs
withdraw their claim under Count 7 of the complaint as to the moving parties.
CONCLUSION
For the reasons stated above, Defendants Motion to Dismiss should be
denied in its entirety.

11

Similarly, the Executive Director of the Housing Authority of Fulton County
administers the Housing Choice Voucher Program, receives HUD funding, and has
responsibility to enforce the public benefits provisions of HB 87.
12
Defendants cite to no authority for the proposition that Plaintiffs need to sue
every possible defendant to obtain injunctive relief.
45

Dated: June 17, 2011

Respectfully submitted,13
/s/ Michelle Lapointe
Michelle Lapointe
On behalf of Attorneys for Plaintiffs

Linton Joaquin (pro hac vice)
Karen C. Tumlin (pro hac vice)
Nora A. Preciado (pro hac vice)
Melissa S. Keaney (pro hac vice)
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Boulevard, Suite 2850
Los Angeles, California 90010
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Omar C. Jadwat (pro hac vice)
Andre Segura (pro hac vice)
Elora Mukherjee (pro hac vice)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

Naomi Tsu (GSB No. 507612)
Michelle R. Lapointe (GSB No. 007080)
Daniel Werner (GSB No. 422070)
SOUTHERN POVERTY LAW CENTER
233 Peachtree St., NE, Suite 2150
Atlanta, Georgia 30303
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

Cecillia D. Wang (pro hac vice)
Katherine Desormeau (pro hac vice)
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION IMMIGRANTS’
RIGHTS PROJECT
39 Drumm Street
San Francisco, California 94111
T: [phone]
F: [phone]
[e-mail]
[e-mail]

Mary Bauer (GSB No. 142213)
Andrew H. Turner (pro hac vice)
Samuel Brooke (pro hac vice)
SOUTHERN POVERTY LAW CENTER

Chara Fisher Jackson (GSB No. 386101)
Azadeh N. Shahshahani (GSB No.
509008)
ACLU OF GEORGIA

13

Counsel certifies this document has been prepared in accordance with L.R. 5.1.
46

400 Washington Ave.
Montgomery, Alabama 36104
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

1900 The Exchange, Suite 425
Atlanta, Georgia 30339
T: [phone]
[e-mail]
[e-mail]

Tanya Broder (pro hac vice)
Jonathan Blazer (pro hac vice)
NATIONAL IMMIGRATION LAW
CENTER
405 14th Street, Suite 1400
Oakland, California 94612
T: [phone]
F: [phone]
[e-mail]
[e-mail]

G. Brian Spears (GSB No. 670112)
1126 Ponce de Leon Ave., N.E.
Atlanta, Georgia 30306
T: [phone]
F: [phone]
[e-mail]
R. Keegan Federal, Jr. (GSB No. 257200)
FEDERAL & HASSON, LLP
Two Ravinia Drive, Ste 1776
Atlanta, Georgia 30346
T: [phone]
F: [phone]

Sin Yen Ling (pro hac vice)
ASIAN LAW CAUCUS
55 Columbus Avenue
San Francisco, California 94111
T: [phone] x 110
F: [phone]
[e-mail]

Charles H. Kuck (GSB No. 429940)
Danielle M. Conley (GSB No. 222292)
KUCK IMMIGRATION PARTNERS
LLC
8010 Roswell Road, Suite 300
Atlanta, Georgia 30350
T: [phone]
F: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs

47

CERTIFICATE OF SERVICE
I hereby certify that I have this date electronically filed the foregoing with
the Clerk of Court using the CM/ECF system, which will automatically send email notification to the following attorney for Defendants Deal, Olens, Reese, and
Beatty:
Devon Orland
Office of State Attorney General
40 Capitol Square, S.W.
Atlanta, GA 30334-1300
[e-mail]
Attorney for Defendants Deal, Olens, Reese and Beatty
I hereby certify that I have mailed by United States Postal Service the
document to the following non-CM/ECF participant:
Falecia Stewart
Executive Director, Housing Authority of Fulton County
HAFC Headquarters
4273 Wendell Drive
Atlanta, GA 30336
This 17th day of June, 2011.
/s/ Michelle R. Lapointe

48