Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 1 of 27

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1 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 1 of 27 Carolyn B. Lamm (pro hac vice) Sara Elizabeth Dill (pro hac vice) Counsel of Record Perry, Krumsiek & Jack, LLP President 35 East Wacker Drive, 9 th Floor American Bar Association Chicago, Illinois North Clark Street (866) Chicago, Illinois sdill@pkjlaw.com (312) clamm@whitecase.com Andrew Silverman Arizona State Bar No Stephen N. Zack (pro hac vice) Joseph M. Livermore Professor and President-Elect Director, Clinical Programs American Bar Association James E. Rogers College of Law 321 North Clark Street University of Arizona Chicago, Illinois P.O. Box (312) Tucson, AZ szack@bsfllp.com (520) silverman@law.arizona.edu Attorneys for Amicus Curiae AMERICAN BAR ASSOCIATION UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Friendly House; et al, ) ) Plaintiffs, ) MEMORANDUM BRIEF OF ) AMICUS CURIAE v. ) AMERICAN BAR ASSOCIATION ) IN SUPPORT OF Michael B. Whiting, et al., ) PLAINTIFFS MOTION FOR ) PRELIMINARY INJUNCTION Defendants. ) )

2 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 2 of 27 I NTR ODUCT ION OF A MICUS C UR IAE, A ME R ICAN B AR A SSOCIATION The American Bar Association ( ABA ), as amicus curiae, respectfully submits this brief in support of Plaintiffs Motion for Preliminary Injunction (Docket No. 70), filed on June 4, While the ABA typically files amicus briefs only in the highest federal or state court that will consider a matter, the ABA believes the issues before this Court are of such significance to the American people and the practice of law that they must be addressed at this stage of the proceedings. The ABA will not expand upon the Plaintiffs constitutional arguments, including preemption, but rather will limit this brief to a discussion of the impact that S.B. 1070, if implemented, will have on four issues that are of deep concern to the ABA: (A) the increased use of racial profiling in law enforcement; (B) the mandatory detention of citizens and noncitizens; (C) the increased burden and new obligations on Arizona s indigent defense system, as well as its courts and prosecutors; and (D) the attempted usurpation of exclusive federal authority to manage and supervise immigration law enforcement matters. STATEMENT OF I NTEREST OF A MICUS, A ME R ICAN B AR A SSOCIATION The ABA is the largest voluntary professional membership organization in the United States and the leading organization of the American legal profession. The ABA s membership of nearly 400,000 come from each state and territory and the District of Columbia, and includes attorneys in private law firms, corporations, non-profit organizations, government agencies, and prosecutorial, public defender and law 2

3 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 3 of 27 enforcement and corrections fields, as well as judges, legislators, law professors, law students, and non-lawyer associate members in allied fields. 1 Since the ABA s founding in 1878, and as cornerstones of its mission, the ABA has worked for civil rights, just laws, and fair legal process. 2 It has worked to improve the quality of legal representation, including the representation of persons charged in criminal cases who cannot afford a lawyer, by promoting competence, ethical conduct and professionalism. 3 The ABA also has a long history of addressing constitutional and statutory rights, regardless of citizenship considerations. In August 1955, the ABA adopted a policy that advocated for the due process rights of noncitizens in immigration proceedings. 4 In February 2010, the ABA adopted policy based on the comprehensive report issued by the ABA s Commission on Immigration, REFORMING THE IMMIGRATION SYSTEM (ABA 2010), that evaluated various aspects of the existing federal immigration system and identified reforms for improvement. 5 The February 2010 policies include a resolution urging greater use of prosecutorial discretion in cases involving noncitizens who are prima facie eligible for relief from removal and elimination of retroactive 1 Neither this brief nor the decision to file it should be interpreted to reflect the views of any judicial member of the ABA. No member of the ABA Judicial Division Council participated in the adoption or endorsement of the positions in this brief. 2 See ABA Mission and Association Goals, available at 3 For example, through the efforts of broadly representative task forces, the ABA has developed its Model Rules of Professional Conduct, the ABA Standards for Criminal Justice, and the ABA Model Code of Judicial Conduct, each of which have frequently been referred to and adopted by courts, legislatures and executive branch law enforcement agencies. E.g., Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473, 1482 (2010) ( The weight of prevailing professional norms supports the view that counsel must advise her client regarding risk of deportation. ) (citing, inter alia, ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), at 197 (3d ed. 1993)). 4 All ABA policy, including its Standards, must be approved by the ABA s House of Delegates ( HOD ), which is composed of more than 500 representatives from States and territories, state and local bar associations, affiliated organizations, ABA sections, divisions and members, and the Attorney General of the United States, among others. The original seventeen volumes of ABA Standards have been amended and expanded over the years by this process. See ABA General Information, available at 5 Report available at (last visited June 28, 2010). 3

4 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 4 of 27 application of the aggravated felony provisions in enforcement of the Immigration and Nationality Act. 6 The ABA Board of Governors has designated immigration as a legislative priority of the ABA for each Congressional session since The ABA respectfully suggests that its views, which represent the perspectives of a broad range of practitioners and others involved with immigration and criminal justice issues, may be of value to the Court in its consideration of the questions now before it. A R GUME NT The ABA urges the Court to grant plaintiffs motion to enjoin enforcement of Senate Bill 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010) (as modified by H.B. 2162) ( S.B ). The ABA has long opposed initiatives such as S.B. 1070, which, by their plain language, can only be implemented by intruding on the civil rights of both citizens and noncitizens. The ABA believes that S.B s attempt to authorize Arizona s state and local criminal law enforcement personnel to engage in civil immigration activities, unless enjoined, will impact these rights in ways that are of deep concern to the ABA, the primary of which are: (A) an increased use of racial profiling in law enforcement; (B) the mandatory detention of citizens and noncitizens; (C) an increased burden and new obligations on Arizona s indigent defense system, as well as its courts and prosecutors; 6 ABA Report and Recommendation #114A (Policy adopted Feb. 2010), available at (last visited June 28, 2010); see also ABA Report and Recommendation #114B (Policy adopted Feb. 2010), available at (last visited June 28, 2010); ABA Report and Recommendation #114C (Policy adopted Feb. 2010), available at (last visited June 28, 2010); ABA Report and Recommendation #114D (Policy adopted Feb. 2010), available at (last visited June 28, 2010); and ABA Report and Recommendation #114F (Policy adopted Feb. 2010), available at (last visited June 28, 2010). 4

5 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 5 of 27 and (D) the attempted usurpation of exclusive federal authority to manage and supervise immigration law enforcement matters. A. S.B s Requirement That Police Officers Verify Immigration Status Will Result In Increased Use Of Racial Profiling. S.B requires that, during any lawful stop, detention or arrest in the enforcement of any law or ordinance of a county, city or town or this state, law enforcement officers with a reasonable suspicion that an individual is unlawfully present in the United States must make a reasonable attempt when practicable to determine immigration status of that individual. S.B also requires that the individual must be detained until immigration status is verified. While S.B purports to limit the use of race, color or national origin to the extent permitted by the United States or Arizona Constitution, this qualification, as a practical matter, will not inhibit the use of racial profiling in apprehension and detention. As noted by the ABA s Criminal Justice Section in its report to the ABA s House of Delegates in 2008, there is new evidence of possible racial-profiling [sic] by the Arizona Department of Public Safety showing that Highway Patrol officers were more than twice as likely to search vehicles driven by Hispanics and Blacks than those operated by Anglos during In that 2008 report, racial profiling was defined as the use of racial or ethnic characteristics not justified by specific and articulable facts suggesting that an individual may be engaged in criminal behavior. 8 The report discussed research showing that 7 Report with Recommendation 104C at 9 n. 10 (Policy adopted Aug. 2008), available at (last visited June 27, 2010), quoting Dennis Wagner, Racial Trends Found in DPS Traffic Stops, Arizona Republic, 7 November Id. at 1. The Policy adopted stated: RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to enact effective legislation, policies, and procedures to ban law enforcement s use of racial or ethnic characteristics not justified by specific and articulable facts suggesting 5

6 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 6 of 27 making racial or ethnic appearance a factor even just one factor among others took the focus of law enforcement off law-breaking or dangerous behavior and resulted in less effective law enforcement: when police used profiling as even one factor, they found less contraband and made fewer arrests on a percentage basis among the targeted minority groups than they did among whites. 9 The report concluded that racial profiling continues to be a serious problem in many police jurisdictions. 10 S.B s requirement of detention of an individual until immigration status has been verified, the ABA asserts, creates a new and greater risk of racial profiling. Once the reason for the initial stop has been concluded without reasonable cause for detention based on criminal activity and regardless of whether racial profiling played a part in the initial stop the likelihood is great that continued detention will be based on nothing more than racial profiling. This is true for citizens and noncitizens alike. It is well-established that racial profiling undermines respect for the rule of law and the criminal justice system. This is especially true when minority communities are burdened with intrusive police attention based on skin color or other immutable characteristics, or on accent or unique manner of dress. As stated in a 2003 policy statement issued by the United States Department of Justice, Racial profiling sends the dehumanizing message to our citizens that they are judged by the color of their skin and that an individual may be engaged in criminal behavior, hereinafter termed racial and ethnic profiling. Racial and ethnic profiling does not include the use of racial or ethnic characteristics as part of a physical description of a particular person observed by police or other witnesses to be a participant in a crime or other violation of law. The Policy adopted also urges, inter alia, written policies, training and supervision to effectively implement the ban, and data collection and independent analyses and publication of that data. 9 Id. at 8, citing David A. Harris, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK at Chapter 4, The Hard Numbers: Why Racial Profiling Doesn t Add Up (The New Press, 2002) (refuting claim of proponents of racial profiling that it constitutes effective police work). 10 Id. at 4. See also Part D, below (discussing lawsuits alleging racial profiling against state or local law enforcement agencies even when operating under agreement with, and supervision by, the United States Immigration and Customs Enforcement ( ICE )). 6

7 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 7 of 27 harms the criminal justice system by eviscerating the trust that is necessary if law enforcement is to effectively protect our communities. 11 The ABA submits that S.B should be enjoined because it will exacerbate the documented existing practice of racial profiling. B. S.B s Mandatory Detention Until Immigration Status Is Verified Will Result In Unlawful and Unreasonable Detentions. Under S.B. 1070, indefinite continued detention is mandatory, even when there is no probable cause for detention based on criminal activity, until the immigration status of an individual is verified with the federal government pursuant to 8 U.S.C. 1373(c). S.B makes this requirement even though police officers are not permitted under the Fourth Amendment to the Constitution to arrest an individual without probable cause to believe that person has committed a crime or is engaged in criminal activity. Because S.B thus appears to permit its own version of non-criminal detention, separate from any oversight by the federal immigration enforcement system, the ABA is deeply concerned that these detentions will take place without the basic due process protections and the checks and balances that should be taken for granted under our legal system. As the Supreme Court has stated: Once an alien enters the country, the legal circumstances change, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Because citizens are not required to carry identification, S.B will necessarily result in the detention of citizens who have committed no criminal offense but 11 U.S. Department of Justice, Fact Sheet: Racial Profiling, at 1 (June 17, 2003), available at (last visited June 27, 2010). 7

8 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 8 of 27 do not have identification on their persons when stopped. Not only will S.B place on them the burden of proof that they should not be detained, but it does so without any requirements of arraignment or representation of counsel. While verification of a citizen s status would intuitively appear to present little problem, an unpublished 2006 study by the Vera Institute of Justice identified 125 people in federal immigration detention centers who were believed by immigration lawyers to have valid U.S. citizenship claims. 12 The American Civil Liberties Union cited reports of dozens of U.S. citizens who have been wrongfully arrested, detained, or deported. 13 And wrongful detention has already been documented in Arizona. 14 Further, S.B does not and, indeed, cannot identify a mechanism for requesting verification of status from the federal government. As is well known from operation of the E-Verify program and Social Security no-match letter litigation, the multiple federal databases containing immigration-related information from the various agencies are poorly integrated and are often incomplete or inaccurate. S.B s mandatory detention requirement, accordingly, is unreasonably overbroad and punitive on its face. Without additional protections not found in S.B. 1070, the detention itself will inhibit detained individuals both citizens and noncitizens from being able to gather documents supporting their legal status. 15 Some individuals 12 See Marisa Taylor, U.S. Citizen s near deportation not a rarity, Minneapolis Star Tribune, available at (last visited June 17, 2010). 13 ACLU Demands ICE End Illegal Deportation of U.S. Citizens, Feb. 13, 2008, available at (last visited June 17, Mary Romero & Marwah Serag, Violation of Latino Civil Rights Resulting From INS and Local Police s Use of Race, Culture and Class Profiling: The Case of the Chandler Roundup in Arizona, 52 CLEV. ST. L. REV. 75, (2005). 15 As the ABA has noted, unlike court proceedings and most other administrative matters, there is no provision of discovery in federal immigration proceedings, which effectively requires applicants for immigration relief or benefits to use FOIA as a means of discovery. ABA Report with Recommendation #107D (Policy adopted Feb. 2006), available at 8

9 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 9 of 27 will not be able to afford to retain counsel or others to assist them, or remain employed while being detained. Nor, apparently, will the length of their detention be otherwise overseen by an impartial adjudicator. Detained noncitizens may include individuals without documentation but who have claims to lawful status based on fear of persecution or likelihood of torture if returned to their country of origin, and victims of human trafficking, or domestic violence, or others who have a valid claims to status based on familial relationships. Recognizing the impediments that result from detention, the ABA concluded in 1990 that detention of asylum seekers should occur only in extraordinary circumstances, and in the least restrictive environment necessary to ensure appearance at court proceedings. 16 This conclusion was expanded in 2006 to include noncitizens in removal proceedings, who should be detained only where there is a specific determination that the individual (1) presents a threat to national security; (2) presents a threat to public safety; (3) presents a threat to another person or persons; or (4) presents a substantial flight risk. 17 In fact, the United States Immigration and Customs Enforcement ( ICE ) uses a number of detention alternatives, including release on orders of recognizance, release on bond, supervised release, and electronic monitoring. 18 Moreover, the ABA has grave concerns about detention of families and minors in facilities that are not equipped to accommodate children, in addition to concerns about (last accessed June 27, 2010). This lack of access will only be aggravated if an individual is detained, not by the federal government, but by Arizona state or local law enforcement. 16 ABA Report and Recommendation #131 (Policy adopted Feb. 1990), available from the ABA. 17 ABA Report and Recommendation #107E (Policy adopted Feb. 2006), available at (last visited June 27, 2010). 18 Id. at 3. 9

10 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 10 of 27 the effects of detention of a single mother or father of a U.S. citizen minor child, and caregivers of elderly or disabled parents or other family members. 19 Because of the great risk that enforcement of S.B will result in unlawful and unreasonable mandatory detentions, it should be enjoined. C. Mandatory Detention Under S.B Will Result In An Increased Burden And New Obligations On The State s Indigent Defense System, As Well As On Its Courts And Prosecutors. The ABA believes that if, under S.B. 1070, Arizona detains individuals pending immigration status confirmation, Arizona must comply with the guarantees of due process, including appointment of counsel at state expense if a detained individual cannot afford one. This is because Arizona will not and cannot claim that it will be operating under a delegation of authority from the federal government. Arizona therefore cannot claim that detention pending immigration status verification under S.B can be equated to detention by ICE or that it can operate under the statutes, rules and regulations under which ICE operates. 20 It is well-settled that noncitizens have a statutory right to counsel, see U.S.C (1996), and a constitutional right to counsel based on the Fifth Amendment s guarantee of due process. E.g., Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003). Appointment of counsel for S.B detainees will necessarily result in an 19 See ABA Report with Recommendation #101C (Policy adopted Feb. 2009), available at (voicing concern of federal immigration enforcement of these individuals) (last visited June 27, 2010). 20 For example, Arizona cannot argue that it will operate under current Department of Homeland Security regulations that establish a noncitizen s right to obtain representation in a removal proceeding but do not require the government to provide representation, and that any representation that a noncitizen may obtain is to be at no expense to the government. See, e.g., ABA Commission on Immigration, REFORMING THE IMMIGRATION SYSTEM, at Executive Summary-40 ( ES-40 ) (ABA March 2010), citing INA 292, 8 U.S.C. 1362, available at (last visited June 18, 2010). 10

11 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 11 of 27 increased burden on Arizona s defense attorneys and indigent defense system. However, detention pursuant to S.B will also result in the imposition of new obligations on defense attorneys and public defenders: under the Supreme Court s recent opinion in Padilla v. Kentucky, 559 U.S., 130 S.Ct (2010), all defense counsel representing criminal defendants must be familiar with basic immigration consequences that are applicable to the client s case, including the specific immigration penalties that may result from a plea or other resolution of the case. Further, in order to comply with their professional responsibility obligations, defense counsel and public defenders must become knowledgeable or must associate with another attorney who is knowledgeable about their client s bases for relief under immigration law. Under the Arizona Rule of Professional Conduct, ER 1.1, which is identical to the ABA s Model Rule of Professional Conduct R. 1.1 (ABA 2008), [c]ompetent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 21 Similarly, under ABA Defense Function Standard 4-3.6, a defense attorney is required to take all necessary action to vindicate a defendant s rights, including motions seeking pretrial release of the accused. 22 Detention under S.B. 1070, accordingly, will mean that the attorney, or another attorney associated with her, will be required to learn the client s immigration and, if any, criminal history. The attorney may also need to attempt to obtain supporting 21 Arizona Rules of Professional Conduct, ER 1.1 (Competence) (2003), available at (last visited June 28, 2010). A chart comparing the Arizona and the ABA Model Rules of Professional Conduct is available at (last visited June 28, 2010). 22 ABA Standards for Criminal Justice, Prosecution Function and Defense Function (ABA 3d ed. 1993), available at (last visited June 29, 2010). 11

12 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 12 of 27 documentation of status, including basic documents such as a birth certificate or passport, which can take weeks. 23 Further, and perhaps most important, the attorney must avoid taking any actions in the Arizona system that would have untoward repercussions on any federal immigration case the client may face later. While this is critical for the detainee being held only for verification of immigration status, it will be even more critical for a detainee also being held on criminal charges, since a large number of state and federal criminal offenses have immigration consequences. A criminal conviction for even a minor or misdemeanor offense can have devastating effect on a client s ability to remain in the United States with his or her family. In addition, determination of immigration status will require a type of burdenshifting. For a client being held only pending verification of immigration status, the defense counsel will need to prove that the client is lawfully in the country. Further, the ABA asserts that, pending verification of immigration status, the defense counsel should also attempt to establish that the client should be released, whether on an order of recognizance, bond, supervised release, or electronic monitoring. Absent such release, the client will remain in detention, which may result in the client making detrimental choices if his or her overriding desire is to return, by any means, to his or her family. Further, S.B will place additional burdens on prosecutors: the mandatory verification requirement will likely delay a prosecutor s ability to decide the criminal charges to be brought, in order to comply with Padilla s instruction that prosecutors should consider the range of immigration consequences in choosing the charges to be 23 But see, John M. Broder, Shredder Ended Work Backlog, U.S. Says, New York Times, Section A, p. 22. col. 4 (Jan. 31, 2003) (reporting indictment of INS contract service personnel for having managed a high case backlog by shredding 90,000 files, many of which contained irreplaceable original documents such as passports and foreign birth certificates). 12

13 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 13 of 27 brought and in offering or accepting a plea agreement. See Padilla, 559 U.S., 130 S.Ct. 1473, 1486 ( By bringing deportation consequences into [the plea-bargaining] process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties [where] a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. ). Independent of statutory and constitutional requirements, the interests of criminal defendants, the public and, it would appear, individuals detained under S.B. 1070, are best served by prompt disposition. While competent legal representation typically benefits the state and the courts through fewer requests for continuances and shorter periods of detention at significant financial savings, the verification obligations under S.B are likely to result in longer periods of detention. It should also be expected that the charge of being unlawfully present will be vigorously contested in the state courts in an effort to stay out of the federal immigration system. 24 Further, based on challenges in other jurisdictions to the growing and unmanageable public defender case loads, Arizona courts may be required to determine whether the public defender attorney can provide effective representation. 25 Finally, because it appears that delays in the federal verification process should be expected, federal courts may see an increase in habeas petitions. 24 The ABA notes, further, that there appears to be a question as to whether a state court has jurisdiction to render a determination of immigration status, and whether that determination will be binding on an immigration court. 25 See Gideon s Broken Promise: America s Continuing Quest for Equal Justice, prepared by the ABA s Standing Committee on Legal Aid and Indigent Defendants 29 (ABA 2004), available at /sclaid/defender/brokenpromise/fullreport.pdf (last visited June 18, 2010). 13

14 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 14 of 27 Based on these and other burdens and new obligations on Arizona s defense attorneys, its indigent defense system, and its courts and prosecutors, S.B should be enjoined. D. S.B Is An Attempt By Arizona To Usurp Exclusive Federal Authority To Manage And Supervise Immigration Law Enforcement. The U.S. Constitution has vested exclusive power over naturalization matters with the federal government. U.S. Const. art. I, 8, cl. 4. Pursuant to that exclusive power, Congress has given the Department of Homeland Security ( DHS ), through ICE, statutory authority to operate programs with state and local agencies through memoranda of agreement under Section 287(g) of the Immigration and Nationality Act ( INA ). 26 In passing S.B 1070, Arizona has attempted, not only to usurp federal authority over immigration matters, but also to nullify any requirement that Arizona state and local law enforcement agencies, when engaging in immigration enforcement activities, must operate within the statutory power that Congress has given to DHS. As stated in the March 2010 report of the DHS Office of Inspector General on ICE s 287(g) agreements ( OIG Report ), ICE may delegate, pursuant to Section 287(g), federal immigration enforcement authority to a state or local law enforcement agency through a memorandum of agreement (a 287(g) MOA ) that sets out general parameters for the program activities, establishes a process for supervision and management of those activities, and designates local or state officers who will perform immigration enforcement functions. 27 In passing S.B 1070, Arizona has attempted to negate the 26 Section 287(g) of the INA is codified at 8 U.S.C. 1357(g). 27 U.S Department of Homeland Security, Office of Inspector General, The Performance of 287(g) Agreements, at 1 (March 2010), available at (last visited June 25, 2010). 14

15 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 15 of 27 requirement of a 287(g) MOA in order for state or local law enforcement agencies to engage in immigration enforcement activities and second, to avoid ICE supervision and management of those activities. This attempt to avoid ICE supervision and management is especially troubling since, according to the OIG Report, Appendix E, there are currently eight 287(g) MOUs in place and one pending with Arizona jurisdictions. 28 S.B is also problematic because, as noted in the OIG Report, One aspect of DHS primary mission is to ensure that civil rights and civil liberties are not diminished by its efforts, activities and programs. Id. at 22, citing 6 U.S.C. 111(b)(1)(G). Even with this federal statutory mission, however, the OIG Report stated: Id. at Claims of civil rights violations have surfaced in connection with several LEAs [state or local law enforcement agencies] participating in the program. Two LEAs currently enrolled in the program were defendants in past racial profiling lawsuits that they settled by agreeing to collect extensive data on their officers contacts with the public during traffic stops, and adopt policies to protect the community against future racial profiling. Another jurisdiction is the subject of (1) an ongoing racial profiling lawsuit related to 287(g) program activities; (2) a lawsuit alleging physical abuse of a detained alien; and (3) a DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures, and national origin discrimination. DHS is a defendant in a lawsuit regarding the allegedly improper detention and deportation of a U.S. citizen by a 287(g) officer from yet another participating LEA. These claims arose even though state officers operating under Section 287(g) MOAs are required to undergo a four-week training program conducted by certified 28 Id. at 83. The jurisdictions with 287(g) MOUs are the Arizona Department of Corrections, Arizona Department of Public Safety, City of Mesa Police Department, City of Phoenix Police Department, Florence Police Department, Maricopa County Sheriff s Office, Pima County Sheriff s Office, Pinal County Sheriff s Office, and Yavapai County Sheriff s Office. 29 See also id at 23 n. 9 citing GAO, Immigration Enforcement Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws (GAO ), January 30, 2009, available at (last visited June 28, 2010). 15

16 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 16 of 27 instructors. 30 They are also required to pass examinations equivalent to those given to ICE officers before they can use federal immigration enforcement authorities. OIG Report at 27. And, ICE field offices are responsible for determining whether 287(g) officers have engaged in conduct that would make them unsuitable to continue in a federal immigration enforcement capacity. Id at 18. In contrast, the Arizona Peace Officer Standards and Training Board ( AzPOST ) has announced plans to create an electronic training program on enforcement of S.B. 1070, to be sent to every law-enforcement agency in the state by the end of June. 31 This video program is anticipated to count toward about two hours of the eight hours of training officers are required to receive each year to maintain their certification. 32 However, according to Lyle Mann, executive director of the AzPOST board, whether those agencies require their officers to participate in the S.B training is up to the agency. 33 As Mr. Mann stated, It s going to be an agency-by-agency issue. 34 There 30 U.S. Immigration and Customs Enforcement Programs, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, August 18, 2008, available at 287_g.htm (last visited June 25, 2010). 31 J.J. Hensley, SB 1070 training is unveiled, azcentral.com, May 20, 2010, available at (last visited June 25, 2010). 32 Id. 33 Id. (attributing statement to Lyle Mann). Compare, U.S. Immigration and Customs Enforcement Programs, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, August 18, 2008 (stating that the training requirement for state officers operating under Section 287(g) MOAs is a four-week training program conducted by certified instructors), available at 287_g.htm (last visited June 25, 2010). 34 Id. This article also quoted Deputy Chief Paul Chagolla, of the Sheriff s Office of Maricopa County, as stating that the Sheriff s Office will determine whether the instruction already offered is the sufficient, and [b]ecause (Senate Bill) 1070 mirrors what s already in federal law, there s not a lot of training Maricopa County deputies will need because that s what they ve already been trained on. The article also noted that the Maricopa County Sheriff s Office is the subject of a federal Department of Justice investigation into allegations of racial profiling and is the subject of multiple lawsuits alleging the deputies target Hispanics in immigration-enforcement efforts that have led to the arrest or detention of U.S. citizens. 16

17 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 17 of 27 was no mention of any management, supervision or oversight of Arizona law enforcement agencies in their S.B enforcement activities. 35 The ABA is greatly troubled that S.B attempts to mandate enforcement of federal civil immigration law by Arizona state and local law enforcement agencies without requiring training or oversight of their activities. Even more troubling, however, is that S.B is an apparent attempt to nullify any requirement that Arizona state and local law enforcement agencies may do so only under the supervision and management of the DHS. In addition to its constitutional infirmities, therefore, the ABA asserts that S.B must also be enjoined because it is an attempt to usurp Congress exclusive right to delegate authority for federal civil immigration law enforcement to the DHS. 35 See id. 17

18 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 18 of 27 Conclusion For the reasons set forth above, the ABA respectfully submits that plaintiffs motion for preliminary injunction should be granted. Respectfully submitted this day of June, 2010 /s/ Carolyn B. Lamm Carolyn B. Lamm /s/ Stephen N. Zack Stephen N. Zack /s/ Sara Elizabeth Dill Sara Elizabeth Dill /s/ Andrew Silverman Andrew Silverman Attorneys for Amicus Curiae AMERICAN BAR ASSOCIATION 18

19 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 19 of 27 CERTIFICATE OF SERVICE I, Carolyn B. Lamm, certify that this Memorandum Brief of Amicus Curiae American Bar Association In Support of the Plaintiff s Motion For a Preliminary Injunction was filed and served using the court s CM/ECF system for all registered users and by regular mail to all parties listed in the attached service list on the 30 th day of June, /s/ Carolyn B. Lamm CAROLYN B. LAMM Notice has been electronically mailed to: Adam Netel Bleier adam@sherickbleier.com, clarissa@sherickbleier.com Aileen Wheeler awheeler@cov.com, awheeler@cov.com Albert M Flores amflegal@aol.com Andrea Sheridan Ordin aordin@counsel.lacounty.gov Anjali Bhargava anjali.bhargava@cco.sccgov.org Anne Lai alai@acluaz.org, jessican@acluaz.org Anne Cecile Longo longoa@mcao.maricopa.gov, ca-civilmailbox@mcao.maricopa.gov Bradley S Phillips brad.phillips@mto.com, james.berry@mto.com, mary.pantoja@mto.com Britt Wesley Hanson bhanson@cochise.az.gov, kaguilar@cochise.az.gov Bruce P White whiteb@mcao.maricopa.gov Bryan B Chambers bchambers@co.gila.az.us Carla Gorniak cgorniak@dl.com, courtalert@dl.com Carmina OCampo cocampo@apalc.org, cocampo@apalc.org Carolyn B Lamm clamm@whitecase.com 19

20 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 20 of 27 Cecillia D Wang cwang@aclu.org, irptemp1@aclu.org Cesar A Perales cperales@latinojustice.org Charles F Walker charles.walker@skadden.com Chris Myrl Roll chris.roll@pinalcountyaz.gov, kristine.carver@pinalcountyaz.gov Christopher Baird Dupont dupontlaw@cox.net Christopher R Clark crclark@dl.com Connie Choi cchoi@apalc.org, cchoi@apalc.org Cynthia Ann Aziz cynthia@azizimmigrationlaw.com Cynthia Valenzuela Dixon cvalenzuela@maldef.org, agodinez@maldef.org Daniel Clayton Barr DBarr@perkinscoie.com, docketphx@perkinscoie.com, sneilson@perkinscoie.com Daniel Joseph Pochoda dpochoda@acluaz.org, danpoc@cox.net, jessican@acluaz.org Daniel R Ortega, Jr danny@rmgmo.com, lupe@rmgmo.com Daniel S Jurkowitz Daniel.Jurkowitz@pcao.pima.gov, annette.atkins@pcao.pima.gov, susan.montgomery@pcao.pima.gov David Jeremy Bodney dbodney@steptoe.com, awilmot@steptoe.com, phdctnef@steptoe.com David Joseph Euchner deuchner@comcast.net David Lawrence Abney abneymaturin@aol.com Deborah S Smith deb@debsmithlaw.com Dennis J Herrera tara.collins@sfgov.org Elisabeth Jill Neubauer Elisabeth.Neubauer@mto.com, Marsha.Oseas@mto.com Elizabeth Janney Kruschek ekruschek@perkinscoie.com Foster Maer fmaer@latinojustice.org Gary Michael Baum gary.baum@cityofpaloalto.org, sharon.hanks@cityofpaloalto.org 20

21 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 21 of 27 George A Nilson george.nilson@baltimorecity.gov George Jacob Romero YCAttyCivil@yumacountyaz.gov Ghazal Tajmiri tajmiri@nilc.org, tajmiri@nilc.org Gladys Limon glimon@maldef.org, agodinez@maldef.org Gregory N Pimstone gpimstone@manatt.com Greta S Hansen greta.hansen@cco.sccgov.org Harini Raghupathi hraghupathi@aclu.org, sdhir@aclu.org Ivan E Espinoza-Madrigal iespinoza@maldef.org Jack Hamilton Fields jack.fields@co.yavapai.az.us James Neil Lombardo neil.lombardo@skadden.com Jean Boler jean.boler@seattle.gov Jean E Wilcox jwilcox@coconino.az.gov, mrankin@coconino.az.gov Jeffrey Allen Imig jimig@hmpmlaw.com, jarchambeau@hmpmlaw.com Jennifer AD Lehman jlehman@counsel.lacounty.gov, dbluem@counsel.lacounty.gov Joanna S McCallum jmccallum@manatt.com Joe A Albo, Jr joe.albo@pinalcountyaz.gov, joe.albo@azbar.org, kristine.carver@pinalcountyaz.gov John J Bouma jbouma@swlaw.com, brhoades@swlaw.com, docket@swlaw.com, mzachow@swlaw.com Jon Marshall Greenbaum jgreenbaum@lawyerscommittee.org Jose L Perez jperez@latinojustice.org Jose de Jesus Rivera jrivera@hmpmlaw.com, jlarsen@hmpmlaw.com, jsoto@hmpmlaw.com, slarsen@hmpmlaw.com Joseph Young jyoung@co.apache.az.us, josephdyoung7@gmail.com 21

22 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 22 of 27 Joseph Andrew Kanefield Joseph G Adams jgadams@swlaw.com, docket@swlaw.com, mgarsha@swlaw.com Joseph J Ybarra joseph.ybarra@mto.com Julie A Su jsu@apalc.org, jsu@apalc.org June Ava Florescue jfloresc@co.gila.az.us Karen Cassandra Tumlin tumlin@nilc.org Katherine Desormeau kate.desormeau@cco.sccgov.org Kenneth Andrew Angle kangle@graham.az.gov Lance B Payette lance.payette@navajocountyaz.gov Lawrence L Hafetz lhafetz@counsel.lacounty.gov Linda Meng linda.meng@portlandoregon.gov Linton Joaquin joaquin@nilc.org Louis S Fidel loufidel@hotmail.com Lucas Guttentag lguttentag@aclu.org, irp_ecf@aclu.org Lydia Mendoza lmendoza@manatt.com Maria R Brandon brandonm@mail.maricopa.gov, fitzpatrickl@mail.maricopa.gov, Garciaj013@mail.maricopa.gov, garciat@mail.maricopa.gov, winkl@mail.maricopa.gov Mary Bridget Minder BMinder@perkinscoie.com, docketphx@perkinscoie.com, sneilson@perkinscoie.com Matthew Harrison Green mgreenh@mattgreenlaw.com, allisona@mattgreenlaw.com, theresa@mattgreenlaw.com Melissa S Keaney keaney@nilc.org, keaney@nilc.org Michael Dennis Latham mlatham@co.apache.az.us Michael M Markman mmarkman@cov.com, mmarkman@cov.com 22

23 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 23 of 27 Michael William McCarthy Miguel A Marquez miguel.marquez@cco.sccgov.org Nathan Jean Fidel nfidel@hmpmlaw.com, jlarsen@hmpmlaw.com, slarsen@hmpmlaw.com Nicholas David Espiritu nespiritu@maldef.org, agodinez@maldef.org Nicholas Jason Enoch nicholas.enoch@azbar.org, danette@lubinandenoch.com Nina Perales nperales@maldef.org, cleija@maldef.org Noel A Fidel noel.fidel@mwmf.com, lori.mandell@mwmf.com, nafidel@mac.com Nora A Preciado preciado@nilc.org, preciado@nilc.org Omar C Jadwat ojadwat@aclu.org, mlauterback@aclu.org Paul F Eckstein PEckstein@perkinscoie.com, cwendt@perkinscoie.com, docketphx@perkinscoie.com Paul J Watford paul.watford@mto.com, marie.baltierra@mto.com Peter S Holmes peter.holmes@seattle.gov Peter Shawn Kozinets pkozinets@steptoe.com, mmedlin@steptoe.com, phdctnef@steptoe.com Peter William Ginder peter.ginder@ci.minneapolis.mn.us Phil A Thomas pthomas@leonardcarder.com, pthomas@leonardcarder.com Rebecca Ann Reed rreed@hmpmlaw.com, gnielsen@hmpmlaw.com Richard Anthony Lopez rlopez@cov.com Richard Louis Brusca richard.brusca@skadden.com Robert Alexander Taylor robert.taylor@co.mohave.az.us Robert Arthur Henry bhenry@swlaw.com, docket@swlaw.com, pwilliams@swlaw.com Robert Enrique Pastor rpastor@hmpmlaw.com, jlarsen@hmpmlaw.com, slarsen@hmpmlaw.com 23

24 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 24 of 27 Robert Glenn Buckelew Robert S Remar rremar@leonardcarder.com, rremar@leonardcarder.com Ronald G Blum rblum@manatt.com Russell Reid Abrutyn rabrutyn@marshalhyman.com Sara Elizabeth Dill sdill@pkjlaw.com Sean Aloysius Bodkin sean.bodkin@azbar.org Sirena Castillo scastillo@manatt.com Stanley G Feldman sfeldman@hmpmlaw.com, svancamp@hmpmlaw.com Stephanie Fleischman Cherny stephanie.cherny@skadden.com Stephen N Zack szack@bsfllp.com Stephen W Manning smanning@ilgrp.com Susan L Segal susan.segal@ci.minneapolis.mn.us Susan Traub Boyd Susan.Boyd@mto.com, Robyn.Bird@mto.com Tamara Lange tamara.lange@cco.sccgov.org, alexandra.weight@cco.sccgov.org Tanaz Moghadam tmoghadam@aclu.org, arastogi@aclu.org Thomas A Saenz tsaenz@maldef.org, tsaenz@maldef.org Thomas P Liddy tliddy@mail.maricopa.gov, garciaj013@mail.maricopa.gov, garciat@mail.maricopa.gov Victor Viramontes Vviramontes@maldef.org, agomez@maldef.org, mcabadas@maldef.org Vikram Ketty Badrinath vbadrinath@aol.com, vikram.badrinath@azbar.org Vivek Mittal mittal@nilc.org, mittal@nilc.org Wayne Snodgrass wayne.snodgrass@sfgov.org Wendy L Feng wfeng@cov.com, mochoa@cov.com 24

25 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 25 of 27 William Rowe Phelan, Jr Yungsuhn Park Yuval Miller Notice was sent by United States first class mail, postage prepaid, to those listed below: Carmen A Trutanich Los Angeles City Attorney 200 N Main St 915 City Hall East Los Angeles, CA Charles J McKee Office of County Counsel City of Monterey 168 W Alisal St 3rd Floor Salinas, CA Chris Newman National Day Labor Organizing Network 675 S Park View St Ste B Los Angeles, CA Claudia McGee Henry Los Angeles City Attorney 200 N Main St 915 City Hall E Los Angeles, CA Gerald M Sato Los Angeles City Attorney 200 N Main St 915 City Hall E Los Angeles, CA Gerald T Hendrickson Office of the City Attorney 400 City Hall 15 W Kellogg Blvd Saint Paul, MN

26 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 26 of 27 Katheleen M Foster Office of Corporation Counsel 165 Church St New Haven, CT Laura D Blackburne NAACP 4805 Mt Hope Dr Baltimore, MD Lisa Kung National Day Labor Organizing Network 675 S Park View St Ste B Los Angeles, CA Nora Frimann Office of the City Attorney 200 E Santa Clara St 16th Fl San Jose, CA Richard Doyle Office of the City Attorney 200 E Santa Clara St 16th Fl San Jose, CA Ronald Lee Asian Pacific American Legal Center 1145 Wilshire Blvd Ste 200 Los Angeles, CA Victor A Bolden Office of Corporation Counsel 165 Church St New Haven, CT Vikki Cooper Office of Corporation Counsel 165 Church St New Haven, CT William Litt Office of County Counsel - County of Monterey 26

27 Case 2:10-cv SRB Document 269 Filed 06/30/10 Page 27 of W Alisal St 3rd Floor Salinas, CA William W Carter Los Angeles City Attorney 200 N Main St 915 City Hall East Los Angeles, CA Zach Cowan Berkeley City Attorneys Office 2180 Milvia St 4th Floor Berkeley, CA