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June 30, 2010

ABA President Says “An Extraordinary Law … Requires Extraordinary Action.”

_ President Carolyn B. Lamm

_ President Carolyn B. Lamm

The _ today filed a friend-of-the-court brief urging the federal district court in Arizona to bar enforcement of the state’s recently enacted law authorizing police to stop individuals who they suspect are in the United States illegally and to detain them if they are unable to produce proof of citizenship or legal immigration status.

ABA President Carolyn B. Lamm said it is “extraordinary” for the association to file an amicus brief in a case at the district court level, rather than waiting for it to reach an appellate court, but “an extraordinary law … requires extraordinary action.” She vowed the association will “oppose, very strongly, any incursion on equal protection [or] substantive due process, by such things as racial profiling and segmenting groups out.”  The law runs afoul of fundamental ABA positions opposing racial profiling and supporting federal preemption of immigration law, she added.

The brief was filed in the U.S. District Court for the District of Arizona in the case of Friendly House v. Michael B. Whiting. The brief lists four reasons to block enforcement of the state law.

By requiring that police officers with a “reasonable suspicion” that an individual is unlawfully present in the United States verify the person’s immigration status, the law will increase use of racial profiling, according to the brief.  A qualification purporting to limit use of race, color or national origin in applying the law “will not inhibit the use of racial profiling in apprehension and detention,” it says, noting that “racial profiling undermines respect for the rule of law and the criminal justice system.”

By mandating detention of suspect individuals until their immigration status can be verified, the law will cause unlawful and unreasonable detentions, according to the brief.  “[T]he 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,” it says.  Also, because U.S. citizens are not required to carry identification, the law “will necessarily result in the detention of citizens who have committed no criminal offense but do not have identification on their persons when stopped.”

Because “Arizona will not — and cannot claim that it will — be operating under a delegation of authority from the federal government,” the state will be required to appoint defense counsel at state expense for individuals who cannot afford to hire their own.  This “will necessarily result in an increased burden on Arizona’s defense attorneys and indigent defense system,” as well as on courts and prosecutors, says the brief.

Finally, “[t]he U.S. Constitution has vested exclusive power over naturalization matters with the federal government,” and the Arizona law represents a state attempt to usurp that authority, the brief argues.

For a video of ABA President Carolyn B. Lamm explaining why the ABA took the extraordinary step of weighing in on this case at the district court level, click here.

Editor’s Note: Filed on July 14, 2010, the above link is to a revised version of the original brief filed June 30, 2010, in this case.  Also filed on July 14 was a brief in the case of The United States of America v. The State of Arizona and Janice K. Brewer, Governor.

Comments (15)

  • One Texas Lawyer
    2:11 PM July 1, 2010

    There is no statement in the brief that says the ABA House of Delegates approved ABA participation in this case so the assertion that this is “represents the perspective of a broad range of practitioners” is false — especially given that the majority of Americans support the position of SB 1070. Further, the position of the amicus brief ignores what actually happens on the border. I suggest, Ms. Lamm, that you drive Interstate 10 through Texas. The US Border Patrol stops everyone, everyone, at various checkpoints and asks “Are you a citizen of the U.S.?” Considering the ABA has been losing members, offending probably a majority of the membership is not exactly the way to strengthen the base. You need to listen to someone besides law professors who are members of every asylum/refugee/illegal immigrant organization in Arizona. Just run the ABA. Stay out of politics.

  • Anonymous
    3:03 PM July 1, 2010

    I am not an attorney or versed in jurisprudence, just a concerned American, who recognizes that without border protection and continuous, systematic enforcement of immigration laws it is not possible to have a nation or country. For the record I was born in South America, and have lived long enough in at least three countries in the area, to know that these countries apply a very tight enforcement of their immigration laws, not to mention that they fiercely defend their national sovereignty, which in their case refer chiefly to PROTECTING their national borders. Incidentally, I do not ever see a case brought against any of these nations on how they enforce their laws and, most telling, on how they PROTECT their national borders.

    Here is “trivia question” to our enlightened and illustrious ABA jurists: Which one country in the world allows for a 20 or more million people to invade on whatever basis and do nothing about it? And what is the one national jurisdiction in the world which tolerates this constant encroachment, read it abuse, into our national affairs and borders as the United States does?

  • Thoroughly Disgusted
    4:12 PM July 1, 2010

    This amicus brief is just more evidence that the ABA is an irrelevant, left-wing parody of itself.

  • Gordon R. Green
    6:41 PM July 1, 2010

    I am an associate member of the ABA, and today, reading of the decision of the ABA to take the position it has, I am especially proud of this affiliation. This country is about nothing if it is not about our constitutional protections. In addition, many of the people who will see their constitutional rights violated when the Arizona law takes effect are from families with roots that go back to a time when much of Arizona was part of Mexico. If there is to be no racial profiling, then every person in Arizona, even temporarily, will be in jeapardy of incarceration if he or she does not carry proof of citizenship or legal residence with them at all times. Do we really want to live like that?

  • Anonymous
    7:23 PM July 1, 2010

    I am an associate member of the ABA, and today, reading of the decision of the ABA to take the position it has, I am especially ASHAMED of this affiliation. This country is about nothing if it is not about our constitutional protections. In addition, many of the people who will be sent back to their country when the Arizona law takes effect are from families with roots that go back to a time when much of Arizona was part of Mexico. If there is to be no illegal immigrants in the US, then every person in Arizona, even temporarily, will be in jeapardy of incarceration if he or she does not carry proof of citizenship or legal residence with them when they do something illegal or are suspected of doing something illegal. We really want to live like that!

    I will not renew my membership to the ABA this year because it has become much clearer to me that it is merely a political puppet, run by left wing liberals with an agenda to push.

  • Lee in Ohio
    8:32 PM July 2, 2010

    Your brief is well thought out and clearly written. Although you dealt with 4 main areas why an injunction should be issued there were a 100 sub areas all of which give the court a valid reason to injoin this really ill conceived law.
    Thanks ABA for stepping up.

  • Shah Peerally
    3:57 AM July 4, 2010

    I applaud the ABA for this move. It is high time we lawyers do what we took an oath to do…that is uphold the US constitution. Good Job!

    Thank you

  • Tom
    2:17 PM July 4, 2010

    The key to this mess is simply Arizona did what the Fed refuses to do- they codified aspects of Federal Laws into one enforceable statute. The standard of Reasonable Suspicion remains as a bar to profiling as it does in other cases/arrests. If that standard is not a good enough protection for people of Hispanic descent, then the standard is wrong for all Citizens of this country.

  • Jeri S.
    6:23 PM July 5, 2010

    I really am disappointed with those who do not support Arizona’s decision for creating and enacting this law. Our US Government has become too lenient with allowing criminals of all persons to get away with something because of religious or “politically Correct” coercion. Federal and State Laws are created and in place for a reason-to preserve and insure justice.
    The laws created are not to further promulgate crimes and criminals. For any one person, relgious group, or government lobbyist/political group to cry foul when a state enacts a law to protect it’s citizens, is wrong.
    Does any of the non-supporters object to the Federal Goverment using the same tactics when it came to Laws constituted to prevent terrorism after 9/11? I believe the Patriot Act contained similar statements that allowed law enforcement and immigration authorities to further PREVENT crimes, by detaining and deporting immigrants suspected of terrorism-related acts. Crimes caused by illegal aliens toward any law-abiding citizen, is an act of terrorism under any action, definition, or Law.
    While not all Laws or Stautes are perfect (this is what amendments are for), Support of these laws that are, in effect, to Protect law-abiding citizens should always be supported.

  • Disgruntled Member
    10:47 AM July 6, 2010

    The ABA continues to show itself as a leftist organization without regard for the rule of law. It may be time to cancel my membership.

  • Libertarian
    9:27 AM July 8, 2010

    I do not hold a degree in law but do know that this law is unconstitutional. For starters a citizen is not required to carry proof of citizenship, so some citizens may be held without due process. To state that racial profiling won’t happen is absurd. It already happens and this law will only give someone the authority to do so(even if it claims it won’t). Also how do you determine who is legal and who is not by looking at them? Requiring everyone to prove their status is wrong, this is not 1940’s Germany. “Either you believe in liberty or you don’t”-Ron Paul

  • ABA Member in WA
    10:15 PM July 9, 2010

    I cannot wait for some quota-driven telemarketer from Chicago to call me to renew my membership. I will tell them that it is precisely this type of political grand-standing and myopic ignorance of the majority of Americans that makes the ABA so utterly irrelevant. But that is not to say I won’t get all moochy-liberal on you losers and use your free A/V CLEs when I can. Might as well deduct my portion of fee from your 2011 operating revenue right now…

  • Guerline L. Laurore
    8:23 PM July 11, 2010

    Thank you _ for making your point of view known. You are doing what you were meant to do and as such, I am proud to be affilliated with you. States must obey the US Constitution and leave immigration laws to be enacted by the federal governement. Good job

  • Anonymous Patriot
    5:52 PM July 19, 2010

    Whether the Gestapo comes in the uniform of the United States Border Patrol, or the Arizona State Police, don’t answer their questions, not even the one about your citizenship. Don’t show them any ID cards or anything else but your back. Go on your way. If they “detain” or arrest you, find an ABA member and sue their asses off for deprivation of rights under color of law.

    The honest people of this country (that is, the ones who don’t work for the government) still have a few rights left — we just have to exercise them.

  • *Pingback*
    3:55 PM August 11, 2010
    This Post Referenced in: ABA and 1070 « AZ Attorney

    ... laws. We have problems with racial profiling. So I don’t know how this law would pass muster, and that’s why I issued the statement that I issued. My first statement was very strong about it. And while reasonable minds can differ, my view is, as ...