Amicus Curiae Brief — Muehler v. Mena

GOR ARGUMENT (i) ar

be a, Ooh

No. 03-1423 NOV-3 2004

—— nee a

In The

Supreme Court of the Anited States

+

DARIN L. MUEHLER AND ROBERT BRILL,

Petitioners,

IRIS MENA,

Respondent.

. 7

On Writ Of Certiorari To The

United States Court Of

For The Ninth Circuit

+

BRIEF FOR THE NATIONAL LATINO OFFICERS

ASSOCIATION, THE NATIONAL BLACK POLICE

ASSOCIATION, AND THE HISPANIC AMERICAN

COMMAND OFFICERS ASSOCIATION AS

AMICI CURIAE SUPPORTING RESPONDENT

BAHER AZMY* LAWRENCE S. LUSTBERG

Lor! A. NESSEL JONATHAN L. HAFETZ

ANJUM GUPTA GrBBons, DEL DEO,

JESSICA YAGER DOLAN, GRIFFINGER

SETON HALL Law SCHOOL & VECCHIONE, PC.

CENTER FOR SOCIAL JUSTICE One Pennsylvania Plaza

833 McCarter Highway 37th Floor

Newark, New Jersey 07102 New York, New York 10119

(973) 642-8700 (212) 649-4700

Attorneys for Amici Curiae

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 226-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE.............ccccccsssssesseeessees

STATEMENT OF THE CASEL..............scccsssssssssecessrereees

SUMMARY OF ARGUMENT ..............c:cccssssceeseessseeeeees

IMMIGRATION LAW ENFORCEMENT IS, FOR

GOOD REASON, A FEDERAL FUNCTION AND

AUTHORIZING STATE AND LOCAL POLICE

TO QUESTION PERSONS ABOUT THEIR

IMMIGRATION STATUS IN AN EFFORT TO

ENFORCE IMMIGRATION LAW WILL UNDER-

MINE THE EFFECTIVENESS OF LOCAL LAW

SU PE EIOT esccwvescenscesosnseesantonineonmmennneaniininin

A. ENFORCEMENT OF FEDERAL IMMIGRA-

TION LAW IS NOT AN IMPORTANT STATE

OR LOCAL GOVERNMENT INTEREST.........

B. AUTHORIZING LOCAL LAW ENFORCE-

MENT OFFICERS TO QUESTION INDIVI-

DUALS ABOUT THEIR IMMIGRATION

STATUS IN AN EFFORT TO ENFORCE

IMMIGRATION LAWS WOULD SIGNIFI-

CANTLY HAMPER EFFORTS OF STATE

AND LOCAL POLICE TO FIGHT CRIME

QED CEI vreccesrensesnvecsenissmneenannnen

TABLE OF CONTENTS -— Continued

Page

C. BECAUSE STATE AND LOCAL LAW EN-

FORCEMENT AGENCIES HAVE NEITHER

THE RESOURCES NOR THE TRAINING TO

HANDLE THE COMPLEXITIES OF IMMI-

GRATION LAW ENFORCEMENT, THEY

WOULD BE SIGNIFICANTLY BURDENED

BY THE INEVITABLE CONSEQUENCES OF

A RULING THAT AUTHORIZES OFFICERS

TO ENFORCE FEDERAL IMMIGRATION

ITA idlisisinatbdasnthonicededimesssottioevenemenesseccsesacevencees 22

1. Scarce State and Local Resources Should

be Reserved for State and Local Law

i eee 23

2. Authorizing Police Officers to Enforce

Immigration Law Without Adequate Training

Will Lead to Costly Mistakes and Expose

a 26

aati ciicaitannendnnannenonserecersseceseseonsesecee 30

ill

TABLE OF AUTHORITIES

Page

CASES

Bandera v. City of Quincy, 220 F. Supp. 2d 26 (D.

SERENE, TIEN nicceenennpncnngandsinnpntinininiuitennseipaiaaaidinbememmandns 13

California v. Rooney, 483 U.S. 307 (1987)... eee 25

Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir.

STI stceceicsontcacaninendinisiteiatinmnmsendibaciabaiaaiiisiasaiiiiieabaniummaaiadiaadl 26

Domokos v. Hollander, No. 97-C-6194, 1997 WL

Pe te Mie CE, Bh, Bre Pctvcscrecseiccsccnnevecioccssnsenss 26

Drax v. Reno, 338 F.3d 98 (2d Cir. 2003)..............:ccecceeeees 26

Florida v. Bostick, 501 U.S. 429 (1991) ....... cece eee ee eeeee 9

Hiibel v. Sixth Judicial Dist. Ct. of Nev., 124 S. Ct.

SEES ITIEE sesshineccntnnsiconenieniananiecieincumummatienmianbenseiaiia 9

Illinois v. Wardlow, 528 U.S. 119 (2000).................... eee 21

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)... 9

Lewis v. Smith, 731 F.2d 1535 (11th Cir. 1984).......000..... 27

Lok v: INS, 548 F.2d 37 (2d Cir. 1977) .............cccsseseseeeeees 26

Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir.

STITT siccceehicisaidessahidcsicansibihenmmuennaiaiieeenatonianhiabasactiiaiasidiaiulaulilidaa 4

Michigan v. Summers, 452 U.S. 692 (1981)... 5

Mountain High Knitting v. Reno, 51 F.3d 216 (9th

atat: See isustscsntiniennienanenisenininietianinememnaninauaiiameiamaada 10

National Council of La Raza v. Ashcroft, No. 03-CV-

6324 (E.D.N.Y. filed Dec. 17, 2003).............cccceeesseeeeeeees 11

Terry &. Gieie, SEB US. 1 CUBGEP...cccoccsvcssoscssscvsesececeseccovsscees 9

United States v. Brignoni-Ponce, 422 U.S. 873

Sipe chenednintetaiannteimidennisecintenminiennieaeedaianial 20, 28

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. Campos-Serrano, 404 U.S. 293

Ura sicushenincsinnchiniscisinsieiatiataieliieedbieninineitaseadeaniiasediiaanamedeniaien 10

United States v. Cruz-Hernandez, 62 F.3d 1353

CE Gi BN cctscenievsiessecnciniisnnstentiniatisaniintaiinieanniomeeien 20

United States v. Franco-Munoz, 952 F.2d 1055 (9th

SD, Tei sicinasecciensinsstnibsiiitiiinibaniiasniniiuamasiaiiiiinuitancieieiinns 20

United States v. Khan, 324 F.Supp. 2d 1177 (D.

Si TI ncnncanssenscscnsscibsatinnesenennesiasiinnmsbanuenbindentionneiats 17

United States v. Oliveros, 275 F.3d 1299 (11th Cir.

STII sisaicecenoeciigeiciniiadsoiadiciniehaiiteaneigsnsdaeatalatadencienbabeseindaniina 26

United States v. Ritter, 752 F.2d 435 (9th Cir. 1985)....... 10

STATUTES, ORDINANCES, AND

OTHER LEGISLATIVE MATERIALS

8 U.S.C. § 1101(a)(15)(S) (1999 & Supp. 2004)................. 17

8 U.S.C. § 1101(a)(15)(T) (Supp. 2004) 0.0... eeeeeeeeees 17

8 U.S.C. § 1101(a)(15)(U) (Supp. 2004)... eeeeeeeeeeees 18

8 U.S.C. § 1154(a)(1)(A)Gii) (1994 &Supp. 2004).............. 16

8 U.S.C. § 1154(a)(1)(B)ii) (1999 & Supp. 2004).............. 16

8 U.S.C. § 1227 (1999 & Supp. 2004)... eceseeseteeeees 9

LB re ik scttncntiancctenistinentsinciisiiiiiannsiiniin 10

BO TEA. © re Ce dtcicccccvenentctcnnssesncnsnencsinnnnsncinin 28

SB i eiwicscaencinceicndaeinciainedntitanncinsiitninianinninnisnain 29

Anchorage, Alaska, Res. 223-2003 (July 15, 2003)....... 8, 29

Ark. Code. Ann. § 12-12-1402 (Michie 2003).................0+ 29

Berkeley, Cal., Res. No. 61,747-N.S. (Sept. 10, 2002)....... 29

TABLE OF AUTHORITIES — Continued

Page

Boulder, Colo., Res. Expressing the Commitment of

the City of Boulder to Civil Rights and Liberties

and Acknowledging that the Boulder Police De-

partment Already Incorporates Most of the Fol-

lowing in their Current 2’ icies and Procedures

ae St tnsmscsdeiicsinnsdindtviimaiahaneretdinbitdtansassiantadabinedses 29

Cal. Penal Code § 13519.4(d)-(f) (West 2004) ................... 29

Chandler, Ariz., Police General Order E-17 § 300

I ie 8,17

Conn. Gen. Stat. § 54-1] (1999) ..0..................ccccsesccescesseees 29

Denver, Colo., Res. No. 13 (Mar. 18, 2002) ............000....00.. 29

H.R.J. Res. 22, 23rd Leg. 1st Sess. (Alaska 2003)........ 8, 29

Ky. Rev. Stat. Ann. § 15A.195 (Banks-Baldwin

ae ae ek 29

L.A., Cal., Special Order 40 (November 27, 1979)........ 8,17

Minneapolis, Minn., Mun. § 19.30 (2003)..................... 8,17

BR, UNNI, Wp CUE GE Picncccccosiccccccenssdcsieccscstoicdesdsons 29

Mont. Code Ann. § 44-2-117 (2003)... cece eeeeeeeeeeee eee 29

Neb. Rev. Stat. §§ 20-501, 20-504(1) (2004)... 29

I Be SE, Te GR ccccsiccnccccccncsccnsssiscccndesocconecs 29

N.J. Exec. Order No. 127, 33 NJ. Reg. 2233(a)

aT Ts CITT cchncsiciisblennceiesinbesaditsinlahbaebndaaldainiliiiceahtadnasieiile 29

N.Y., N.Y., Res. No. 60 (Feb. 4, 2004)... 8, 29

Okla. Stat. Ann. Tit. 22 § 34.3 (West 2000)........000000..000.. 29

Or. Rev. Stat. § 181.850 (2003) ........scseseseeseeeees SER ae 8,17

eh eS RS | Ee enna nee 29

vi

TABLE OF AUTHORITIES -— Continued

Page

S.F., Cal., Code § 12H.2. (1989) ...............cccessseeeeeeeeseeees 8,17

Takoma Park, Md., Ordinance No. 1985-63 (Oct.

I i aca re eaiatricimaried 8,17

Takoma Park, Md., Ordinance No. 2002-82 (Oct.

i ae ilaledscdllibladmnenonel 8

Tenn. Code Ann. § 45-6-223 (2001)... eeeeeeeeeeeeeee eens 29

Tex. Crim. Proc. Code Ann. art. 2.131 (Vernon

a a a ll 29

Wy, Fa Ca OC crccrsrctccsccciccnsiesccccsscscseccssonseess 29

Wash. Rev. Code § 43.101.410 (2002) ........... eee eens 29

Pub. L. No. 107-296, § 471,116 Stat. 2135 (codified

as amended at 6 U.S.C. § 291(a) (2002))................... ee 3

OTHER AUTHORITIES

Attorney General John Ashcroft, Prepared Remarks

on the Nationat Security Entry-Exit Registration

System (June 6, 2002) (transcript available at

http://www.usdoj.gov/ag/speeches/2002/060502ag

OID TID ceccescassccnesesvessencsennccnssennssesneoneceece 11

Bill Novak, County May Stiff the Feds On

Information About Immigrants, Capital Times

(Dane County, WI), Dec. 18, 2003.00... eeeeeseeeeeeees 19

Callie Marie Rennison, Criminal Victimization

2000; Changes 1999-2000 with Trends 1993-2000,

U.S. Dep’t of Justice, Bureau of Justice Statistics

S\N aaa nS TERT TORT TT STOROY OIRO 14

Callie Marie Rennison, Violent Victimization and

Race, 1993-98, U.S. Dep’t of Justice, Bureau of

Justice Statistics (Mar. 2001)................ccccccceccssseeeseeeeees 14

TABLE OF AUTHORITIES — Continued

Christopher Hoene, Mark Baldassare, Christiana

Brennan, Homeland Security and America’s Cit-

ies, Research Brief on America’s Cities, Dec. 2002...

Christy Whitehead, Budget Cuts More Than Lay-

offs, Law and Order, Aug. 2004.................ccceseeeeeeeeees

Cities, Towns Oppose Cuts in Aid to Police, Crime

Control Digest, Feb. 13, 2004..............ccccccceeceeceeeeeeees

Craig E. Ferrell, Jr., Immigration Enforcement: Is it

a Local Issue?, The Police Chief, June 2004.............

Craig E. Ferrell, Jr., The War on Terror’s

‘Absconder Initiative,’ Police Chief, Oct. 2002..........

David A. Harris, The Stories, the Statistics, and the

Law: Why “Driving While Black” Matters, 84

SE. Bins SADR. TRI CHD ccsccvcvesevoscnocscsncveneneovessescsowees

David Hench, Volatile Cleaner Started Fatal Fire;

Four Seng Thai Workers Fled the State After the

Fire, Delaying the Work of Investigators, Portland

Press Herald, March 3, 2001................ccccccccceseeeeeeeeees

David Rudovsky, Enforcement by Stereotypes and

Serendipity: Racial Profiling and Stops and

Searches without Cause, 3 U. Pa. J. Const. L. 296

FIED cnendconenicdincsinninitastiteninesenedeeiininimbetiniesncennemnneee

Deborah Ramirez et al., A Resource Guide on

Racial Profiling Data Collection Systems: Prom-

ising Practices and Lessons Learned, U.S. Dep't

I a cricinccccineninsstinvininsniieninsiniiivinmnene

Dennis J. Stevens, Case Studies in Community

Policing (Prentice Hall 2001) ..........s:.ssesssecsssessseeeseeen

Detroit, Mich., Local Resolution To Protect Civil

BASSES CEGOY. BT, BOD ccecceccccccccccsccscsccecsccoscoscesoseses

vili

TABLE OF AUTHORITIES - Continued

Dina Bunis and Minerva Canto, Immigrants

Worried, Coe Pleased by Proposal, Orange

County Register, Apr. 4, 2002 ............::cscsseeeeneseeeeerees

Eli Lehrer, Less Money From Washington, Ameri-

can Enterprise, Jan/Feb. 2004 ...........::scsseceeseeneeeeeeeees

Ellen Baker, Comment, Flying While Arab - Racial

Profiling and Air Travel Security, 67 J. Air L. &

Coan. BFE CIGD .ncccccccccccsescvsccesescosvscctvessesosesevsnecscorsecees

Eric Schmitt, Administration Split on Local Role in

Terror Fight, N.Y. Times, Apr. 29, 2002.............:0essee0

HPD Policy on Aliens is Hands-Off: Status of

Immigrants Viewed as Federal Issue, Houston

Chronicle, March, 3, 2008 .............cccccssesseererereeennennnnnenes

Immigrant Enforcement Agent, Bureau of Immigra-

tion and Customs Enforcement, at http://www.

ice.gov/graphics/careers/invest/invest_iea.htm (last

iaibodd Beare, &, BODE) ..ccccccceccecccccecccccovovsessccssvevesssscscnceses

International Association of Chiefs of Police Press

Release, Police Chiefs Offer Priority List of Anti-

Terror Needs, June 15, 20038............ccccceceeeeeeeeeeeneneeeeeeees

Janet Calvo, A Decade of Spouse-Based Immigra-

tion Laws: Coverture’s Diminishment, But Not its

Demise, 24 N. Ill. U. L. Rev. 153 (2004) ..........:..eceeeeeees

Jerome K. Skolnick & David H. Bayley, The New

Blue Line: Police Innovation in Six American

Cities (Free Press 1986)...............ccccccsssssssesseeseeeeeeeeeeeeees

Karen Brandon, U.S. Weighs Local Role on

Immigration, Chicago Tribune, Apr. 14, 2002..............

ix

TABLE OF AUTHORITIES -— Continued

Kevin R. Johnson, The Case Against Race Profiling

in Immigration Enforcement, 78 Wash. U. L.Q.

I Ie wectcincnsccecintncnindstntsigninimnncinnssaianecieciamnnenen

Lance Davis, Panel Discusses Impact of Budget

Crisis on Cities, Nation’s Cities Weekly, June 2,

BOG occccccescccoceseccosessccccccccesecoecesssssososossonssesesesesssososoosooonse ,

Lesley Téllez, Finding a Place to Turn; Police Seek

to Ease Crime Victims’ Fear of Being Deported,

Dallas Morning News, Dec. 11, 2008.................::eeeceeeee

Lesley Tellez, Police Seek to Ease Crime Victims’

Fear of Being Deported, Dallas Morning News,

(Oy

Lisa M. Seghetti et al., Enforcing Immigration Law:

The Role of State and Local Law Enforcement,

Congressional Research Service Report for Con-

gress, Mar. 11, 2004............scccsessesseereeseenstseeesenseeneesenssnsens

Louie Gilot, Immigration Proposal Puts Burden on

Police, El Paso Times, Oct. 9, 2008 ...........::cceeseeeeeeeeeeees

Marie A. Taylor, Immigration Enforcement Post-

September 11: Safeguarding the Civil Rights

of Middle Eastern-American and Immigrant

Communities, 17 Geo. Immigr. L.J. 63 (2002)..............

Mark Preston, Funding Cuts Hit Cities from All

Sides, American City & County, Jan. 2003..................

Matthew J. Hickman and Brian A. Reaves, Com-

munity Policing in Local Police Departments,

1997 and 1999, U.S. Dep’t of Justice, Bureau of

Justice Statistics (Feb. 2001) ................cccecceceeeeeeeeeeeeeees

TABLE OF AUTHORITIES -— Continued

Page

Memorandum from Seth Waxman, Associate Deputy

Attorney, to the U.S. Attorney for the Southern

District of California (Feb. 5, 1996), available at

http://www.usdoj.gov/olc/immstopola.htm.................++. 11

Mia Taylor, Cobb Police Unit Combats Hispanic

Gang Lure, Atlanta Journal-Constitution, Dec.

Michael Easterbrook, Durham Resolution Galva-

nizes Advocates, Raleigh News & Observer, Oct.

Irth StI hcsisesnisiceiciatadiiaieatbdenciaaaiteadaadittialadiaentimeetinmatipmniens 19

Michael A. Pagano, City Fiscal Conditions in 2003,

Research Reports on American Cities................:ccec000 23

Michael J. Wishnie, State and Local Police Enforcement

of Immigration Laws, 6 U. Pa. J. Const. L. 1084

ITT Chichseteiherhenaepaesiesdieaieemanunteitteaiiintetabatimnanenaibianiialibiiaemapbiianabilien 11

Michelle Mittelstadt, U.S. May Let State, Local

Authorities Enforce Federal Immigration Laws,

Dallas Morning News, Apr. 3, 2002................:cc08 21, 26

Michelle Waslin, Immigration Enforcement by

Local Police: The Impact on the Civil Rights of

Latinos, National Council of La Raza, Issue Brief

Se ak ME, Cet iceetisticicisiclbaeiiniiitdeeieniiiniaieeniaiaibiaeidiainimpienites 21

Mirta Ojito, Captive in Queens; Neighbors’ Response

to Trouble is Silence, N.Y. Times, July 21, 1997............ 15

Natashia Gregoire, Police Appeal for Clues in

Slaying of Mom, Son, Tampa Tribune, July 22,

ST sted seeceeiithinhinebeideahasiaieadbiinlanialeatiaalia tietiniliatinnidiepainnbainanabiien 15

Neil Lewis, Immigrants Offered Incentives To Give

Evidence on Terrorists, N.Y. Times, Nov. 29, 2001........ 16

TABLE OF AUTHORITIES — Continued

Oscar Avila, Bill Imperils Immigrants’ Fragile

Trust in Police, Chicago Tribune, Mar. 31, 2004.......... 19

President George W. Bush, New ‘Temporary

Worker Program: Remarks on Immigration Pol-

icy (Jan. 7, 2004) (transcript available at http://

www.whitehouse.gov/news/releases/2004/0 1/2004

Ia scisssesninsineiiddipsibiccesiinseaainabetaneabietanmmnanennaei 15, 17

Ricardo Alonso-Zaldivar, Crimes Against Latinos

Decrease, L.A. Times, Apr. 8, 2002 ..............ccccccseseeseeeees 14

Richard Abshire, Scams Prey on Migrants: Non-

English Speakers May Face Questionable

Business Dealings, Dallas Morning News, Aug.

RITES no naeer nnd ee re SOC oe nT ey RMS I Oa OTD 19

Richard D. Steel, Steel on Immigration § 16:1 (2d

Een eae SORE TE mn TT 9

Robert C. Davis & Edna Erez, Immigrant Popula-

tions as Victims: Toward a Multicultural Crimi-

nal Justice System, Nat’ Inst. of Justice:

Research in Brief, May 1998 ..0.0.............ccccesseeeeeeeees —

Robert C. Davis et al., Access to Justice for Immi-

grants Who Are Victimized: The Perspectives of

Police and Prosecutors, 12 Crim. Just. Pol’y Rev.

TE scerseniscecncetssiscniiatiainiedittaledamnicimiintinnioidentatiatnnueiees 14

Sheila Burke, Midstate Auth. Balk at Possibly

Enforcing Immigration Laws, The Tennessean,

SR NaI Snincesiicsisntnicntitianaccnsnenneninnesanininiiiniiimenentedeeee 26

Sixto Molina, Editorial, Immigration Role Not for

Local Police, Tucson Citizen, Oct. 15, 2008 .................. 26

Stephen H. Legomsky, Immigration and Refugee

Law Grd Policy (3d @4. B00) .......cesssesessssssosssssessccsecssseees 9

TABLE OF AUTHORITIES -— Continued

Steven G. Brandl, Reflections on the Criminal

Justice System after September 11, 2001 Rack to

the Future: The Implications of September 11,

2001 on Law Enforcement Practice and Policy, 1

Ohio St. J. Crim. L. 133 (2008) ............cccceeeeeeeee tees

Thomas Ginsberg & Maria Panaritis, U.S. Agents

Limit Scrutiny of Illegal-Immigrant Arrests,

Philadelphia Inquirer, Sept. 9, 2003.................0000

Tim Steller, Expansion of Foreigner Arrest Plan is

Feared, Arizona Daily Star, July 12, 2002..............3

Tony Coleman, Measure Targets Immigrants’ Fears,

St. Paul Pioneer Press, Dec. 27, 2003...................44.

Value, Legality Debated as Local Police Become

Immigration Cops, Hispanic Link Weekly Report

(Los Angeles), June 9, 20085..........ccccccccccsssscsssssseessees

William Lyons, Partrierships, Information and

Public Safety, 25 Policing 530 (2002)..................000

Page

eee =

1

INTEREST OF AMICI CURIAE'

Amicus curiae National Latino Officers Association

(“NLOA”) is a fraternal and advocacy organization with a

membership of 10,000 uniformed and civilian employees,

predominantly within city and state law enforcement

agencies. The mission of the NLOA is to create strong bonds

between immigrant communities, particularly Latino

communities, and various law enforcement agencies, while

promoting candid and productive communication. Over

many years, the NLOA, composed primarily of Latino

officers, has gained a great deal of respect and trust within

immigrant communities by advising residents of their

rights, fighting discrimination, and facilitating a mutual

dependence between these communities and law enforce-

ment. The NLOA has testified before Congress, and its

members regularly participate in local city council meetings

regarding issues of discrimination and law enforcement.

Amicus curiae National Black Police Association

(“NBPA”) is a nationwide organization of African-

American police associations, with approximately 35,000

members in 140 chapters, dedicated to fair and effective

law enforcement. The NBPA has helped develop a strategy

for community policing, with the hope of creating a coop-

erative relationship between minority officers and the

communities they serve, that will in turn lead to increased

public safety. The NBPA also aims to improve the relation-

ships between police departments and minority popula-

tions by evaluating the effect of policies on minority

* This brief was not authored in any part by counsel for either

party. In addition, no person or entity other than amici curiae and their

counsel made a monetary contribution to the submission of this brief.

Letters of consent by the parties to the filing of this brief have been

lodged with the Clerk of this Court.

2

communities, recruiting minority police officers on a

national scale, and teaching officers to act with profes-

sionalism and compassion in combating corruption, brutal-

ity, and racial discrimination.

Amicus curiae Hispanic American Police Command

Officers Association (“HAPCOA”) is the largest organiza-

tion of Hispanic American command officers in the United

States, with members in hundreds of law enforcement

agencies. HAPCOA’s members include chiefs of police,

sheriffs, and police superintendents from around the

country. HAPCOA’s primary goal is to increase community

involvement, understanding, and support through out-

reach efforts and the development of positive partnerships

with other law enforcement associations, corporations,

community groups, and non-profit organizations.

Amici are deeply concerned about the practical, real-

world consequences this case could have for effective law

enforcement. In particular, amici believe that Petitioners’

suggested resolution of their first question presented —

whether the police questioning of Respondent about her

immigration status constituted an additional, unconstitu-

tional seizure under the Fourth Amendment - is funda-

mentally oversimplified and invites a ruling unnecessary

to a narrow disposition of this case. Amici thus write to

inform the Court of important, negative policy conse-

quences that would follow from a ruling authorizing or

encouraging police officers to enforce immigration law as a

caution against using this case to resolve this complex

question. And, as the issue of the authority and propriety

of police enforcement of immigration law was not argued

or briefed in the lower courts, amici join Respondent in

urging the Court to resolve this case on other grounds.

ee

3

STATEMENT OF THE CASE

In this case, eighteen heavily armed officers of a police

SWAT team executed a search warrant at Respondent Iris

Mena’s home where they believed the primary suspect in a

gang-related drive-by shooting was living. The evidence at

trial showed that at least one officer forcibly entered the

locked bedroom where Respondent was sleeping, pointed a

semi-automatic weapon at her face as she awoke, hand-

cuffed her, and took her to a converted garage (J.A. 100-

03) where she was detained until the two to three hour

search of the premises was completed. J.A. 72; 192. During

that detention, one of the police officers questioned Re-

spondent, a lawful permanent resident, about her immi-

gration status even though her status had no bearing on

the criminal investigation that was the subject of the

search. J.A. 106. When that officer, and the Immigration

and Naturalization Service (INS”)’ agent who accompa-

nied the police (J.A. 159-60), demanded to see her immi-

gration papers, Respondent replied that the papers were

in a purse in her room. J.A. 106. The officer then obtained

and searched the purse without her consent and handed

the documentation to the INS agent. J.A. 106-07. The

three other occupants of the premises were also questioned

about their immigration status (J.A. 137), and one was

taken into custody by the INS as a result of this question-

ing. J.A. 115-16. None of the occupants was asked about

his or her connection to the suspect in the shooting or the

gang to which he belonged.

* Effective March 1, 2003, the Homeland Security Act of 2002

abolished the INS, transferring its functions from the Department of

Justice to the Department of Homeland Security. See Pub. L. No. 107-

296, § 471, 116 Stat. 2135 (codified as amended at 6 U.S.C. § 291(a)

(2002)). Unless otherwise specified, the within brief uses the former

nomenclature, which was used by the court below.

4

The jury concluded that Petitioners, the two officers

who oversaw Respondent’s detention, had violated her

constitutional rights. J.A. 255. The Ninth Circuit affirmed.

Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003).

Specifically, the court determined that “the heightened |

security measures” were not justified under the circum-

stances. Jd. at 1263-64. It further found that the officer’s

questions about Respondent’s immigration status and

search of her purse for proof thereof also rendered her

detention unreasonable. Jd. at 1264-66. The issue of

whether this questioning constituted a separate constitu-

tional violation was not argued by either party, at trial or

on appeal, and was not reached by the Ninth Circuit. See

generally Resp’t Br.

SUMMARY OF ARGUMENT

In arguing that Respondent’s Fourth Amendment

rights were not violated when they questioned her about

her immigration status, Petitioners attempt to cast this

case as a straightforward criminal procedure case and,

accordingly, make several dangerously flawed assumptions

about the appropriate roles of state and local police and

federal immigration officers. Petitioners and the United

States as amicus curiae contend that questioning indi-

viduals about their immigration status is part of routine

police work and serves an important government interest.

Pet’r Br. at 22-23; Br. for the United States as Amicus

Curiae at 26-27 n.10. Amici respectfully disagree.

The federal government, recognizing that immigration

officials and state and local law enforcement entities are

not similarly situated, has expressly delegated immigra-

tion law enforcement authority to the states only in

certain specified areas, and there is no evidence that the

Petitioners possessed such authority here. Enforcement of

5

federal immigration law, which is overwhelmingly civil in

nature, is not, and never has been, a function of state and

local law enforcement agencies, whose primary charge is

the enforcement of state criminal law. And, while the

enforcement of immigration law by state and local police

may serve an important federal government interest, it

runs counter to important state and local interests. Amici

submit the within brief to urge the Court not to rule on the

first question presented by Petitioners and to thereby avoid

harmful consequences resulting from state and local en-

forcement of federal immigration law, as enumerated below.’

First, a perception that police can enforce routine

immigration violations would have a devastating impact

on community policing, which has become a critical crime-

fighting strategy and counter-terrorism tool. Community

policing depends upon establishing relationships of trust

between local police and members of the community,

including communities with significant populations of

undocumented immigrants. Police officers across the

country depend upon these relationships to obtain neces-

sary information in narcotics, murder, robbery, rape, and

other traditional criminal investigations. Moreover,

partnerships between police and communities, particularly

immigrant communities, have become increasingly impor-

tant in the effort to prevent future terrorist attacks. Those

relationships would be jeopardized and immigrants would

become fearful of reporting crimes and suspicious activity

* Amici therefore urge this Court to resolve this case on the second

question presented: whether, under Michigan v. Summers, 452 U.S. 692

(1981), the Ninth Circuit erred in ruling that Respondent’s detention

was unconstitutional because she was initially detained at gun-point

and handcuffed for the duration of the search. However, amici take no

position as to how the Court ultimately resolves this second question.

6

if they believed police were enforcing federal immigration

laws, whether on their own or hand-in-glove with the INS.“

Second, a ruling that in any way adopts or endorses the

proposition that police officers have inherent authority to

inquire about a person’s immigration status would inevita-

bly burden state and local law enforcement agencies, which

lack the training and resources to navigate the notoriously

complicated world of immigration law. Already scarce state

and local resources should instead be reserved for fighting

state and local crimes. Moreover, state and local enforce-

ment of immigration law would invariably expose police

officers to criticism and liability for racial profiling, a

practice in which INS agents routinely engage. A ruling

sanctioning or encouraging statutorily unauthorized police

questioning about an individual’s immigration status in an

effort to enforce federal immigration laws would contribute

to a disturbing trend favored by some federal regulators to

devolve immigration law enforcement to states and locali-

ties — a trend that not only fundamentally misapprehends

the appropriate jurisdictional spheres of federal and state

law enforcement, but that also threatens to further burden

already strapped local law enforcement agencies.

In sum, because Petitioners’ first question presented

masks significant complexities involving the appropriate

jurisdictional spheres of federal and state law enforcement

‘ The fact that an INS officer, who would potentially have been

authorized to interrogate Respondent about her immigration status,

was brought along by Petitioners on this raid does nothing to amelio-

rate amici’s concerns. As the facts of this case make clear, it was a

police officer who first asked about Respondent’s immigration status

and who then searched Respondent’s purse for the documents verifying

that status as part of an immigration enforcement effort. J.A. 106-07.

In any event, as shown below, police cooperation with the INS in this

manner would be equally harmful to the promotion of trusting relation-

ships between immigrants and police officers.

7

authority, raises the possibility that local law enforcement

efforts will actually be hampered by Petitioners’ proposed

resolution, and, as Respondent demonstrates, does not

benefit from the development of a full record below, see

generally Resp’t Br., amici urge the Court to resolve this

case on other grounds.

ARGUMENT

IMMIGRATION LAW ENFORCEMENT IS, FOR

GOOD REASON, A FEDERAL FUNCTION AND AU-

THORIZING STATE AND LOCAL POLICE TO QUES-

TION PERSONS ABOUT THEIR IMMIGRATION

STATUS IN AN EFFORT TO ENFORCE IMMIGRA-

TION LAW WILL UNDERMINE THE EFFECTIVE-

NESS OF LOCAL LAW ENFORCEMENT.

A. ENFORCEMENT OF FEDERAL IMMIGRATION

LAW IS NOT AN IMPORTANT STATE OR LO-

CAL GOVERNMENT INTEREST.

In support of their argument that Respondent’s

constitutional rights were not violated when the police

officer questioned her about her immigration status,

Petitioners assert that “ascertaining the identity of illegal

aliens serves an important government interest” and that

the questions were “particularly proper” under the circum-

stances. Pet’r Br. at 22-23. Petitioners further assert that

a rule prohibiting local police from asking individuals such

questions would “upset settled and important law en-

forcement practices.” Pet’r Br. at 22. The United States as

amicus curiae similarly warns against “hamper|ing] the

ability of government officials” to obtain information from

individuals about their immigration status. Br. for the

United States as Amicus Curiae at 23.

Petitioners and the United States thus attempt to cast

this case as a paradigmatic criminal procedure case in

8

which the interests of effective law enforcement must be

balanced against the protections of individual liberty

secured under the Fourth Amendment. Instead, however,

this case implicates complex and increasingly prevalent

issues related to the enforcement of federal immigration

law. Amici thus urge the Court not to adopt the con-

strained perspective suggested by Petitioners and the

United States in their proposed resolution of the first

question presented or in any way to endorse the view that

police possess inherent authority to enforce immigration

law.

By claiming that enforcement of immigration law

serves “an important government interest,” Petitioners

oversimplify the issues presented in this case in two

important and related respects. First, the enforcement of

immigration law may well be an important federal gov-

ernment interest, but it is not an important state or local

government interest.” Congress’ division of authority, as

described below, reflects a sound understanding of the

appropriate roles of local and federal law enforcement:

local police understand and care about how to prevent and

solve crimes within their jurisdictions but have neither the

training nor the resources to undertake federal immigra-

tion law enforcement. Indeed, authorizing or otherwise

* This assertion is abundantly supported by the existence of state

and local ordinances and statutes prohibiting the enforcement of

federal immigration law by state and local officials. See, e.g., H.R.J.

Res. 22, 23rd Leg. 1st Sess. (Alaska 2003); Or. Rev. Stat. § 181.850

(2003); Anchorage, Alaska, Res. 223-2003 (July 15, 2003); Chandler,

Ariz., Police General Order E-17 § 300 (Mar. 1, 1999); L.A., Cal., Special

Order 40 (November 27, 1979); S.F., Cal., Code § 12H.2. (1989); Takoma

Park, Md., Ordinance No. 2002-82 (Oct. 28, 2002); Takoma Park, Md.,

Ordinance No. 1985-63 (Oct. 28, 1985); Detroit, Mich., Local Resolution

To Protect Civil Liberties (Nov. 27, 2002); Minneapolis, Minn., Mun.

§ 19.30 (2003); N.Y., N.Y., Res. No. 60 (Feb. 4, 2004).

9

encouraging state and local enforcement of immigration

law would undermine the ability of officers on the street to

perform their central and predominant function of fighting

crime and protecting the communities they serve.

Second, questioning of suspects by local police can

serve an “important government interest” when it is

directed towards the enforcement of state criminal law.

See Hiibel v. Sixth Judicial Dist. Ct. of Nev., 124 S. Ct.

2451, 2455-56 (2004) (police questioning about identity to

investigate assault); Florida v. Bostick. 501 U.S. 429, 432-

33 (1991) (police questioning to obtain consent to search

for narcotics on bus); Terry v. Ohio, 392 U.S. 1, 5-7 (1968)

(police stop and questioning to prevent armed robbery).

However, it is hornbook law that being an undocumented

or “illegal” alien is a violation of federal civil or adminis-

trative immigration law, enforceable by the INS through

immigration courts. See, e.g., Richard D. Steel, Steel on

Immigration §16:1 (2d ed. 2004) (“The immigration

process, including removal, is civil. While removal involves

both procedural and substantive similarities to the crimi-

nal process, it has been repeatedly held to be civil.”); see

also 8 U.S.C. § 1227 (1999 & Supp. 2004) (listing grounds

of deportability as civil immigration violations); INS v.

Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deporta-

tion proceeding is a purely civil action to determine eligi-

bility to remain in this country ....”). Relatively few

immigration violations are criminal in nature. See Stephen

H. Legomsky, Immigration and Refugee Law and Policy

618, 1118 (3d ed. 2002) (reporting that in fiscal year 1998,

over 1.5 million noncitizens required to leave the United

States did so by voluntary departure and about 93,000

noncitizens were ordered deported, whereas just over

21,000 noncitizens were criminally convicted of immigra-

tion violations) (citing INS 1998 Statistical Yearbook). State

and local officers may enforce a narrow subset of those

10

violations, but only when expressly authorized to do so by

Congress.° See generally Br. for the ACLU as Amicus

Curiae. Thus, the interest of local police in the enforce-

ment of what is predominantly civil immigration law is far

narrower than that of the INS and is, in any event, sub-

stantially outweighed by its costs, as described below.

Furthermore, Petitioners casually suggest that all that

is at issue in this case is “mere [police] questioning” “related

* It is unclear from the record whether the police in this case were

acting under such authority. See generally Br. for the American Civil

Liberties Union (“ACLU”) as Amicus Curiae. In support of their casual

suggestion that the officers in this case were actually investigating

criminal activity, Petitioners cite 8 U.S.C. § 1304(e) (1999), Pet’r Br. at

25-26, which provides that an alien, including a lawful permanent

resident, may be convicted of a misdemeanor for failing to carry his

alien registration card, assuming such card has been issued to him.

Even if state and local police have authority to enforce this provision

pursuant to California law, and are not pre-empted from doing so under

federal law, see Brief for the ACLU as Amicus Curiae, the provision is

very limited in scope. See United States v. Campos-Serrano, 404 U.S.

293, 299-300 (1971) (holding that the purpose of section 1304(e) is to

identify bearer as lawfully registered alien residing in the United

States and to govern that alien’s activities within this country under

the immigration laws); see also United States v. Ritter, 752 F.2d 435,

438 (9th Cir. 1985) (stating that alien registration helps facilitate work

of INS officials at border checkpoints). Petitioners thus improperly view

this provision as a sweeping mandate to enforce any civil immigration

law violation by asking individuals about their immigration status. See

Mountain High Knitting v. Reno, 51 F.3d 216, 219 (9th Cir. 1995)

(holding that “§ 1304(e) arrest power does not permit ‘rounding up the

suspects’ simply in order to investigate aliens’ immigration status”).

Moreover, in order for the officers’ suspicion about Respondent’s

potential violation of this provision to have been reasonable, the officers

would actually have had to suspect that Respondent was a legal

permanent resident who failed to carry her documentation. The context

of their questioning and its characterization in Petitioners’ brief,

however, reveal their true suspicion: that Respondent was, like other

residents of the house under search, actually an undocumented

immigrant. Pet’r Br. at 23-24.

11

to identity” with minimal intrusion or consequence. Pet’r

Br. at 15. However, this characterization masks what

amici perceive is an attempt to obtain blanket approval of

routine police enforcement of federal immigration law. As

the circumstances of the aggressive and obviously planned

SWAT team search and questioning in this case reveal, the

police officers and INS agent were plainly intent on

enforcing state criminal and federal immigration law.

Indeed, this case highlights the troubling trend of devolv-

ing the enforcement of immigration law to states and

localities. Just recently, and in contravention of long-

standing U.S. government policy, see Memorandum from

Seth Waxman, Associate Deputy Attorney, to the U.S.

Attorney for the Southern District of California (Feb. 5,

1996), available at http://www.usdoj.gov/olc/immstopola.htm,

the Attorney General suggested that state and local police

officers possess “inherent authority” to enforce immigra-

tion law. See Attorney General John Ashcroft, Prepared

Remarks on the National Security Entry-Exit Registration

System (June 6, 2002) (transcript available at http://

www.usdoj.gov/ag/speeches/2002/060502agpreparedremarks.

htm). The Attorney General has also directed the Depart-

ment of Homeland Security and the FBI to begin entering

certain categories of civil immigration information into the

FBI's National Crime Information Center database, thus

inducing state and local officers who access the database

millions of times each day to engage in the arrests of

suspected immigration violators. See National Council of

La Raza v. Ashcroft, No. 03-CV-6324 (E.D.N.Y. filed Dec.

17, 2003) (action to enjoin entry and dissemination of such

information); see also Michael J. Wishnie, State and Local

Police Enforcement of Immigration Laws, 6 U. Pa. J.

Const. L. 1084, 1094-95 (2004). Amici urge this Court to

resist endorsing this dangerous trend when fashioning a

ruling in this case in light of the substantial complexities

12

inherent in the Petitioners’ first question presented, as well

as the adverse policy consequences of allowing police to

question persons about immigration status in an effort to

enforce immigration law.’ Accordingly, amici urge this Court

to resolve this case on other grounds. See supra note 3, at 5. _

B. AUTHORIZING LOCAL LAW ENFORCEMENT

OFFICERS TO QUESTION INDIVIDUALS ABOUT

THEIR IMMIGRATION STATUS IN AN EFFORT

TO ENFORCE IMMIGRATION LAWS WOULD

SIGNIFICANTLY HAMPER EFFORTS OF STATE

AND LOCAL POLICE TO FIGHT CRIME AND

TERRORISM.

Law enforcement agencies across the country have

embraced community policing models in recognition of the

importance of cooperation between police and the commu-

nities they serve in solving problems of crime and public

safety. See generally Dennis J. Stevens, Case Studies in

Community Policing (Prentice Hall 2001). In particular,

“(t]he community policing approach to law enforcement

seeks to address the causes of crime and reduce the fear of

crime and social disorder through problem-solving strate-

gies and police-community partnerships. A fundamental

shift from traditional reactive policing, community polic-

ing strives to prevent crime before it occurs.” Matthew J.

” Amici do not mean to suggest that police should never be allowed

to inquire about a person’s immigration status. There may well be

certain limited circumstances, unrelated to enforcement of immigration

law, in which such an inquiry would be appropriate. For example, as

part of a domestic violence investigation, a police officer may need to

know if the abuser threatened the victim with deportation. Police,

however, should only be able to ask about a person’s immigration status

under such circumstances if the questioning is unrelated to the

enforcer-ent of federal immigration laws.

13

Hickman and Brian A. Reaves, Community Policing in

Local Police Departments, 1997 and 1999, U.S. Dep’t of

Justice, Bureau of Justice Statistics (Feb. 2001). Under

this model, an entire community, rather than the police

alone, takes responsibility for crime prevention and

criminal law enforcement. See, e.g., Jerome K. Skolnick &

David H. Bayley, The New Blue Line: Police Innovation in

Six American Cities 212 (Free Press 1986); Bandera v. City

of Quincy, 220 F. Supp. 2d 26, 32 (D. Mass. 2002) (“Com-

munity policing encourages the community to maintain

order and keep neighborhoods safe. By involving members

of the civilian community to identify problem areas in the

community and shape solutions, community policing

recognizes that it is the members of the community who,

as much as police officers, are responsible for safeguarding

the welfare of their community.”).

Indeed, in recent years, community policing has become

the predominant law enforcement policy model at the state

and local level. According to the Department of Justice,

[s]tate and local law enforcement agencies had

nearly 113,000 community policing officers or

their equivalents during 1999, compared to about

21,000 in 1997. This included 91,000 local police

officers in 1999, up from 16,000 in 1997... [and]

64% of local police departments serving 86% of

all residents had fulltime officers engaged in

community policing activities during 1999, com-

pared to 34% of departments serving 62% of resi-

dents in 1997.

Matthew J. Hickman and Brian A. Reaves, Community

Policing in Local Police Departments, 1997 and 1999, U.S.

Dep't of Justice, Bureau of Justice Statistics (Feb. 2001);

see also Steven G. Brandl, Reflections on the Criminal

Justice System after September 11, 2001: Back to the

Future: The Implications of September 11, 2001 on Law

14

Enforcement Practice and Policy, 1 Ohio St. J. Crim. L.

133, 140 (2003) (noting that “[t]he community problem-

solving era is considered to be the predominant style of

policing today” and “(clommunity policing is the corner-

stone of the community problem-solving era”).

The community policing model depends heavily on

fostering relationships of trust between immigrant groups

and law enforcement agencies, and amici have devoted

substantial efforts to building these relationships with a

wide variety of immigrant communities. Evidence suggests

that community policing has successfully lowered crime

rates in immigrant communities. Department of Justice

statistics show that although the non-fatal violent crime

rate dropped 44% between 1993 and 2000 for the general

population, it dropped 56% for Latino populations. Callie

Marie Rennison, Criminal Victimization 2000; Changes

1999-2000 with Trends 1993-2000, U.S. Dep’t of Justice,

Bureau of Justice Statistics (June 2001); Callie Marie

Rennison, Violent Victimization and Race, 1993-98, U.S.

Dep't of Justice, Bureau of Justice Statistics (Mar. 2001).

This decrease has been attributed, at least in part, to the

growing trust between Latino communities and law

enforcement officials. See, e.g., Ricardo Alonso-Zaldivar,

Crimes Against Latinos Decrease, L.A. Times, Apr. 8, 2002,

at 11A.

Undocumented and even many documented immi-

grants fear deportation; that fear must be overcome in

order for immigrants to communicate and cooperate with

police. Studies show that immigrants have tended to

underreport crimes — either as victims or witnesses —

because they fear that interaction with police officers may

lead to negative immigration consequences. See Robert C.

Davis et al., Access to Justice for Immigrants Who Are

Victimized: The Perspectives of Police and Prosecutors, 12

ee ee ed

15

Crim. Just. Pol’y Rev. 183, 187 (2001) (reporting that a

DOJ-sponsored study demonstrated that two-thirds of

district attorneys and chiefs of police from the 50 largest

cities believed that recent immigrants underreport crimes).

Indeed, the President of the United States has recognized

the basic reality that when undocumented immigrants

“are victimized by crime, they are afraid to call the police,

or seek recourse in the legal system.” President George W.

Bush, New Temporary Worker Program: Remarks on

Imm. gration Policy (Jan. 7, 2004) (transcript available at

http://www.whitehouse.gov/news/releases/2004/01/2004010

7-3.html). Past experience also confirms that police en-

forcement of immigration laws will create a chilling effect

among undocumented immigrants, making them afraid to

approach police when they are victims of crimes and easy

targets for those who prey on that fear.’

* Several jurisdictions have reported such incidents. See Lesley Téllez,

Finding a Place to Turn; Police Seek to Ease Crime Victims’ Fear of Being

Deported, Dallas Morning News, Dec. 11, 2003, at 1Q (reporting that in

Lewisville, Texas, an immigrant witnessed a murder but refrained from

contacting the authorities for several months because of fear of immigra-

tion-related consequences); Natashia Gregoire, Police Appeal for Clues in

Slaying of Mom, Son, Tampa Tribune, July 22, 2003, Metro, at 1 (reporting

concern of Tampa, Florida, police that Mexican immigrants who had

knowledge about a double murder were afraid to come forward and police

efforts to assure the community that the police have no interest in their

immigration status); David Hench, Volatile Cleaner Started Fatal Fire;

Four Seng Thai Workers Fled the State After the Fire, Delaying the Work of

Investigators, Portland Press Herald, March 3, 2001, at 1A (reporting that

in Portland, Maine, officials investigating a restaurant fire were unable to

question the restaurant’s Thai employees because the employees had fled

the scene of the fire out of a fear that they would be deported); Mirta Ojito,

Captive in Queens; Neighbors’ Response to Trouble is Silence, N.Y. Times,

July 21, 1997, at B5 (reporting that fifty-eight deaf Mexican workers who

had been smuggled into the United States and were found living in virtual

slavery and subject to beatings and rapes while trapped in small, crowded

apartments in New York City, and their neighboring witnesses, were afraid

to go to the police for fear of being deported).

16

Amici are further concerned that police questioning

regarding immigration status will create an especially

strong chilling effect among victims of domestic violence,

given the prevalence of domestic violence in immigrant

communities. See Robert C. Davis & Edna Erez, Immigrant

Populations as Victims: Toward a Multicultural Criminal

Justice System, Nat'l Inst. of Justice: Research in Brief,

May 1998 (reporting that “[djomestic violence was the

largest category of victimization reported by immigrant

victims”). Congress itself has acknowledged this danger.

One of the main purposes behind the Violence

Against Women Acts in 1994 and 2000 was to

make it possible for women and children who

were victims of crimes to be able to report these

crimes to law enforcement. Abusers often told

their victims they would be deported and never

see their children again if they reported the

abuse to the police.

Janet Calvo, A Decade of Spouse-Based Immigration Laws:

Coverture’s Diminishment, But Not its Demise, 24 N. Ill. U.

L. Rev. 153, 207 (2004); see also 8 U.S.C. § 1154(a)(1)(A)(iii)

(1999 & Supp. 2004); id. § 1154(a1)(B)ii) (1999 & Supp.

2004). Battered immigrant women need to be able to access

law enforcement entities without fear that they or their

abusers will be deported. Police departments have imple-

mented programs in an attempt to reach out to battered

immigrant women and children; however, this progress

will be reversed by local enforcement of immigration law.

Craig E. Ferrell, Jr., Immigration Enforcement: Is it a

Local Issue?, The Police Chief, June 2004.

Police also increasingly rely on immigrant communi-

ties for terrorism-related information in particular. Attor-

ney General John Ashcroft believes that “immigrants [are]

in an especially good position to learn of terrorist plots or

witness unusual behavior among people in their commu-

nity.” Neil Lewis, Immigrants Offered Incentives To Give

Evidence on Terrorists, N.Y. Times, Nov. 29, 2001, at 7B;

17

see also William Lyons, Partnerships, Information and

Public Safety, 25 Policing 530 (2002) (“A successful war on

terror depends on information.”); United States v. Khan,

324 F. Supp. 2d 1177, 1181 (D. Colo. 2004) (noting that an

alleged immigration violator was “a potential witness in an

underlying terrorism investigation”). Similarly, President

Bush, in promoting a proposed bill that would give certain

undocumented workers lawful immigration status, stated

that if immigrants are unafraid of deportation, they will

report crimes more freely, allowing “[l]aw enforcement [to]

be better able to focus on the true threats to our nation from

criminals and terrorists.” President George W. Bush, New

Temporary Worker Program: Remarks on Immigration

Policy (Jan. 7, 2004) (transcript available at http://www.

whitehouse.gov/news/releases/2004/01/20040107-3.html).

Likely recognizing the negative effect that local

involvement in the enforcement of immigration laws

would have on cooperation with the police, scores of

jurisdictions have adopted policies prohibiting law en-

forcement officials from inquiring into a person’s immigra-

tion status. See, e.g., Or. Rev. Stat. § 181.850 (2003);

Chandler, Ariz., Police General Order E-17 § 300 (Mar. 1,

1999); L.A., Cal., Special Order 40 (November 27, 1979);

S.F., Cal., Code §12H.2. (1989); Takoma Park, Md.,

Ordinance No. 1985-63 (Oct. 28, 1985); Detroit, Mich.,

Local Resolution To Protect Civil Liberties (Nov. 27, 2002);

Minneapolis, Minn., Mun. § 19.30 (2003). In addition, the

United States Congress has enacted provisions that

reward undocumented immigrants with lawful status in

exchange for valuable crime-related or terrorism-related

information. See 8 U.S.C. § 1101(a)(15\(S) (1999 & Supp.

2004) (enacted by Violent Crime Control Enforcement Act

of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796,

2024) (granting lawful status to persons who have critical

information regarding “a criminal organization or enter-

prise” or “a terrorist organization, enterprise, or opera-

tion”); 8 U.S.C. § 1101(aX(15\(T) (Supp. 2004) (enacted by

18

Trafficking Victims Protection Act of 2000, Pub. L. No.

106-386, § 107(e)(1), 114 Stat. 1464, 1474-75) (granting

lawful status to victims “of a severe form of trafficking in

persons”); 8 U.S.C. § 1101(a)(15)(U) (Supp. 2004) (enacted

by Battered Immigrant Woman Protection Act, § 1513, 114

Stat. at 1533) (granting lawful status to persons subjected

to “substantial physical or mental abuse” resulting from a

number of crimes, including rape, torture, involuntary

servitude, kidnapping, extortion, and assault). These

provisions not only demonstrate Congress’ view that

criminal law enforcement interests are equally, if not

more, compelling than immigration enforcement interests,

but also plainly reveal its recognition that immigrants are

more likely to come forward with valuable crime-related

information if they do not fear immigration-related conse-

quences.

Amici and countless police jurisdictions have spent

years developing relationships of trust with their commu-

nities by dissociating themselves from immigration offi-

cials. Amici worry that even if only some officers engage in

questioning to enforce immigration law, the effect of their

actions will be sufficient to chill immigrant cooperation

even in those jurisdictions where officers properly refrain

from doing so. Accordingly, police officers, police depart-

ments, and others around the country have publicly

expressed their fears that if local law enforcement officials

become involved in enforcing immigration laws, their

efforts to reach out to immigrant communities will be

derailed.’

* According to a spokesperson for the International Association of

Police Chiefs, “[iJf local police are seen as local immigration officials,

there’s a concern that immigrants won't report crimes, which will then

lead to an increase in crime in communities.” Lesley Tellez, Police Seek

to Ease Crime Victims’ Fear of Being Deported, Dallas Morning News,

Dec. 11, 2003, at 1Q; see also Karen Brandon, U.S. Weighs Local Role on

(Continued on following page)

Oe ee ee

a ee —

19

In addition, amici believe that immigrants, even legal

immigrants, will be less likely to trust the police if they

feel they are being targeted based on their race, religion,

ethnic appearance, or accent. It is well documented that

federal immigration officials routinely use tactics similar

to racial profiling in enforcing immigration laws. See

Kevin R. Johnson, The Case Against Race Profiling in

Immigration Enforcement, 78 Wash. U. L.Q. 675, 688

(2000) (stating that “[r]ace profiling also remains part and

parcel of the enforcement of a body of immigration law”).

In the post-9/11 context, for example, the INS has targeted

Muslim and Arab immigrants. See, e.g., Marie A. Taylor,

Immigration Enforcement Post-September 11: Safeguard-

ing the Civil Rights of Middle Eastern-American and

Immigrant Communities, 17 Geo. Immigr. L.J. 63 (2002)

(discussing the FBI and INS’s use of racial profiling in

Arab and Muslim communities in the fight against terror-

ism).

Immigration, Chicago Tribune, Apr. 14, 2002, Zone C, at 10; Mia Taylor,

Cobb Police Unit Combats Hispanic Gang Lure, Atlanta Journal-

Constitution, Dec. 12, 2002, at 1JF; Tim Steller, Expansion of Foreigner

Arrest Plan is Feared, Arizona Daily Star, July 12, 2002; Value, Legality

Debated as Local Police Become Immigration Cops, Hispanic Link

Weekly Report (Los Angeles), June 9, 2003; Eric Schmitt, Administra-

tion Split on Local Role in Terror Fight, N.Y. Times, Apr. 29, 2002, at

Al; Louie Gilot, Immigration Proposal Puts Burden on Police, El Paso

Times, Oct. 9, 2003, at 2A; Richard Abshire, Scams Prey on Migrants:

Non-English Speakers May Face Questionable Business Dealings,

Dallas Morning News, Aug. 27, 2003, at 1R; HPD Policy on Aliens is

Hands-Off: Status of Immigrants Viewed as Federal Issue, Houston

Chronicle, March, 3, 2003, at A15; Oscar Avila, Bill Imperils Immi-

grants’ Fragile Trust in Police, Chicago Tribune, Mar. 31, 2004, Zone C,

at 1; Michael Easterbrook, Durham Resolution Galvanizes Advocates,

Raleigh News & Observer, Oct. 22, 2003, at B1; Bill Novak, County May

Stiff the Feds On Information About Immigrants, Capital Times (Dane

County, WI), Dec. 18, 2003, at 1B.

20

This Court has sanctioned limited reliance by INS

officials on race or ethnic appearance in enforcing immi-

gration laws, holding that such appearance can be a factor

supporting the reasonable suspicion necessary to stop and

question individuals based upon the belief they are in the

country illegally. United States v. Brignoni-Ponce, 422 U.S.

873, 886-87 (1975). In fact, INS officers admit to routinely

relying on a person’s “foreign appearance” as a factor in

determining whether to make such stops. See, e.g., Unitec.

States v. Cruz-Hernandez, 62 F.3d 1353, 1355-56 (11th Cir.

1995); United States v. Franco-Munoz, 952 F.2d 1055, 1056

(9th Cir. 1991). Petitioners, by stating that Respondent's

Salvadorian accent was the reason for the officer’s ques-

tioning about her immigration status, argue that this rule

should be extended to apply to police officers. Pet’r Br. at

24 (citing Brignoni-Ponce, 422 U.S. at 886-87).

Amici find Petitioners’ position disturbing. The sanc-

tioned reliance on race by INS agents may have been

justified because those agents are responsible solely for

enforcing immigration law and preventing noncitizens

from entering the country illegally. See Brignoni-Ponce,

422 U.S. at 878 (“The Government makes a convincing

demonstration that the public interest demands effective

measures to prevent the illegal entry of aliens at the

Mexican border.”). However, if local police officers engage

in racial profiling in deciding to question persons about

their immigration status, those officers will eviscerate the

relationships that police departments have worked hard to

develop with immigrant communities — relationships that

are necessary to effectively enforce the thousands of non-

immigration related crimes in their jurisdictions in gen-

eral and to productively investigate terrorism-related

crimes in particular. See William Lyons, Partnerships,

Information and Public Safety, 25 Policing 530 (2002)

(stating that racial profiling is counterproductive because

21

it makes it “more difficult for citizens in those communi-

ties with the information we seek to communicate effec-

tively crime- or terror-related information, and thereby

discourage[s] their willingness to work with the police”).”

Indeed, this Court has itself acknowledged the harms that

can result when local law enforcement engages in racial

profiling. See Illinois v. Wardlow, 528 U.S. 119, 135 n.9

(2000) (stating that “a recent survey of 650 Los Angeles

Police Department officers found that 25% felt that ‘racial

bias (prejudice) on the part of officers toward minority

citizens currently exists and contributes to a negative

interaction between police and the community’ ”) (internal

citation omitted). The perception that local police engage

in profiling as part of immigration law enforcement would

also significantly undermine trust among immigrants who

lawfully reside in this country and whose allegiance is

manifestly critical to fighting the war on terror. See

Michelle Waslin, Immigration Enforcement by Local

Police: The Impact on the Civil Rights of Latinos, National

Council of La Raza, Issue Brief No. 9, Feb. 2003; Deborah

Police officers have expressed similar concerns. See, e.g.,

Michelle Mittelstadt, U.S. May Let State, Local Authorities Enforce

Federal Immigration Laws, Dallas Morning News, April 3, 2002

(quoting an officer in San Joaquin County Sheriff’s Office as saying,

“(rjacial profiling . . . could intensify if police are tasked with upholding

immigration laws”); Craig E. Ferrell, Jr., The War on Terror’s ‘Ab-

sconder Initiative,’ Police Chief, Oct. 2002, at 12 (stating that “many

local agencies are usually not equipped or trained to enforce immigra-

tion laws without running afoul of their state and local statutes, such

as those prohibiting racial profiling”). In addition, public awareness of

racial profiling by immigration agents or local law enforcement is

evidenced by the existence of terms such as “driving while black” and

“flying while Arab.” See, e.g., David A. Harris, The Stories, the Statis-

tics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev.

265 (1999); Ellen Baker, Comment, Flying While Arab - Racial Profil-

ing and Air Travel Security, 67 J. Air L. & Com. 1375 (2002).

22

Ramirez et al., A Resource Guide on Racial Profiling Data

Collection Systems: Promising Practices and Lessons

Learned, U.S. Dep’t of Justice, at 4 (2000) (reporting that

recent survey data confirms that there is “a strong connec-

tion between perceptions of race-based stops by police and

animosity towards local and state law enforcement”).

In sum, in asserting that enforcement of immigration

law is an important government interest, Petitioners

overlook that INS agents do not share the same interest as

police officers in gaining the trust and cooperation of

immigrant communities, and thus fail to recognize the

grave dangers to the public safety that state and local

enforcement of immigration law can pose. Accordingly,

amici join Respondent in urging this Court to avoid

reaching this complex and consequential issue when

deciding this case.

C. BECAUSE STATE AND LOCAL LAW EN-

FORCEMENT AGENCIES HAVE NEITHER THE

RESOURCES NOR THE TRAINING TO HANDLE

THE COMPLEXITIES OF IMMIGRATION LAW

ENFORCEMENT, THEY WOULD BE SIGNIFI-

CANTLY BURDENED BY THE INEVITABLE

CONSEQUENCES OF A RULING THAT AU-

THORIZES OFFICERS TO ENFORCE FEDERAL

IMMIGRATION LAWS.

Unlike the INS, states and localities are not properly

situated, nor adequately equipped, to enforce federal

immigration laws. A ruling that authorizes or otherwise

encourages police officers to inquire into a person’s immi-

gration status as part of immigration law enforcement

would divert already scarce state and local resources from

current policing priorities and obligate police to master the

intricacies of immigration law. In addition, such a ruling

would put police officers at risk of liability for violating a

at

23

number of constitutional provisions, federal and state

statutes, and state and local ordinances and resolutions —

a risk not equally faced by INS agents. Therefore, any

purported benefits from enhanced enforcement of federal

immigration laws would be dramatically outweighed by

the loss of resources devoted to traditional crime preven-

tion efforts.

1. Scarce State and Local Resources Should be

Reserved for State and Local Law Enforce-

ment

Data uniformly demonstrate that since the events of

September 11, 2001, cities and towns across America have

experienced severe financial strain. Michael A. Pagano,

City Fiscal Conditions in 2003, Research Reports on

American Cities, at iv — vi (reporting data collected by the

National League of Cities that demonstrate historic

budget shortfalls and deteriorating financial conditions in

U.S. cities and their expected continuation into the fore-

seeable future). These fiscal shortfalls have had a signifi-

cant impact in the area of public safety, where demand for

services has steadily increased since 2001. Id. at 6-10

(reporting a significant increase in public safety needs and

the strain such needs are increasingly imposing on city

budgets); see also Christy Whitehead, Budget Cuts More

Than Layoffs, Law and Order, Aug. 2004, at 102 (quoting

National League of Cities survey reporting that, in 2003,

“thirteen percent of cities reported that they had to lay off

police due to tighter fiscal conditions and budget cuts and

one in three cities anticipates possible layoffs in the near

future”); Christopher Hoene, Mark Baldassare, Christiana

Brennan, Homeland Security and America’s Cities, Re-

search Brief on America’s Cities, Dec. 2002, at 6 (finding,

based on the surveys of 725 city officials, that “[a]mid

already declining fiscal conditions, the additional public

24

safety costs incurred by cities place them in an increas-

ingly precarious position”). For example, in January 2003,

the U.S. Conference of Mayors found that cities have spent

more than $2.6 billion on “‘additional security costs’ since

the 2001 terrorist attacks.” Mark Preston, Funding Cuts

Hit Cities from All Sides, American City & County, Jan.

2003, at 12. The former President of the International

Association of Chiefs of Police, Joseph Samuels Jr., ex-

plained the dire situation of many resource-starved

agencies in the post-9/11 world:

[The] lack of resources has affected their confi-

dence, as very few agencies feel adequately pre-

pared to prevent or respond to a terrorist act or

other major disaster. Law enforcement profes-

sionals are supposed to serve as the guardians of

America’s communities, but it is difficult for them

to perform their jobs when, currently, they do not

feel they can protect their communities ade-

quately or reassure their communities honestly.

International Association of Chiefs of Police Press Release,

Police Chiefs Offer Priority List of Anti-Terror Needs, June

15, 2003, at 1.

Further deepening this crisis, the federal government

has abandoned much of the funding of local policing

initiatives undertaken in the 1990s. Eli Lehrer, Less

Money From Washington, American Enterprise, Jan/Feb.

2004, at 57. In addition, proposed funding cuts for the

Community Oriented Policing Services (COPS) and the

Local Law Enforcement Block Grant (LLEBG) program

will have a particularly detrimental impact on already

beleaguered local policing agencies."

“Tom Cochran, Executive Director of the U.S. Conference of

Mayors, explains, “[mJany cities use the COPS and LLEBG money to

put additional police officers on the streets.” Cities, Towns Oppose Cuts

(Continued on following page)

25

Amici are concerned about the ability of state and

local police departments to assume the additional burden

of policing immigration violations at the same time that

municipalities are experiencing unprecedented burdens

and the worst budget crises in a decade. Moreover, the

federal government’s failure to adequately support exist-

ing partnerships to fight terror and provide security

indicates that states and localities will likely be left to

shoulder the accompanying financial burdens on their

own. These additional resources could only come from

already scarce criminal law enforcement budgets. As this

Court has acknowledged, “[a] police department, like any

organization with limited resources, allocates its resources

to activities most likely to result in the detection or pre-

vention of crime.” California v. Rooney, 483 U.S. 307, 323

(1987). State and local resources should be used to achieve

state and local interests. The consequence of a ruling

authorizing or otherwise encouraging local agencies to

assume responsibility for immigration enforcement would

be to further deplete the scarce resources devoted to the

core local law enforcement duties of investigating state

crimes and protecting local communities.”

in Aid to Police, Crime Control Digest, Feb. 13, 2004, at 2. National

League of Cities President Join DeStefano Jr., Mayor of New Haven,

Connecticut, has expressed a concern shared by amici: “(T]he federal

government is doing away with the COPS and other pertinent grants to

local governments. How can we guarantee public safety if the federal

government walks away from this partnership?” Lance Davis, Panel

Discusses Impaci of Budget Crisis on Cities, Nation’s Cities Weekly,

June 2, 2003, at 1.

“ Police departments across the country have publicly expressed

concerns about the drain on resources that local enforcement of

immigration laws would cause. As stated by an official of the Dallas

Police Association, “(t]he strain on local police already is enormows, and

to ask us to arrest and detain immigrants is something the federal

government needs to address by funding the INS some more and hiring

(Continued on following page)

26

2. Authorizing Police Officers to Enforce Im-

migration Law Without Adequate Training

Will Lead to Costly Mistakes and Expose

Officers to Liability.

Immigration laws are indisputably complex. See, e.g.,

Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (describing

modern immigration law as “labyrinthine” and “a maze of

hyper-technical statutes and regulations that engender

waste, delay, and confusion”); United States v. Oliveros,

275 F.3d 1299, 1307 (11th Cir. 2001) (describing immigra-

tion law as “an area in which the law is unsettled, com-

plex, and confusing”); Castro-O’Ryan v. INS, 847 F.2d

1307, 1312 (9th Cir. 1988) (“With only a small degree of

hyperbole, the immigration laws have been termed

second only to the Internal Revenue Code in complexity.”)

(internal quotation marks and citation omitted); Lok uv.

INS, 548 F.2d 37, 38 (2d Cir. 1977) (noting “the striking

resemblance between [immigration] laws ... and King

Minos’s labyrinth in ancient Crete”); Domokos v. Hol-

lander, No. 97-C-6194, 1997 WL 570748, at *1 (N.D. Il.

Sept. 8, 1997) (“Immigration laws and their application

present a particularly dense thicket, one that is essentially

impenetrable to all lawyers other than those who practice

additional personnel.” Michelle Mittelstadt, U.S. May Let State, Local

Authorities Enforce Federal Immigration Laws, Dallas Morning News,

Apr. 3, 2002. Local law enforcement officials in several other jurisdic-

tions have expressed this sentiment. See, e.g., Sheila Burke, Midstate

Auth. Balk at Possibly Enforcing Immigration Laws, The Tennessean,

Apr. 15, 2002, at 7B; Sixto Molina, Editorial, Immigration Role Not for

Local Police, Tucson Citizen, Oct. 15, 2003, ct 4B; Dina Bunis and

Minerva Canto, Immigrants Worried, Coe Pleased by Proposal, Orange

County Register, Apr. 4, 2002; Thomas Ginsberg & Maria Panaritis,

U.S. Agents Limit Scrutiny of Illegal-Immigrant Arrests, Philadelphia

Inquirer, Sept. 9, 2003, at Al; Tony Coleman, Measure Targets Immi-

grants’ Fears, St. Paul Pioneer Press, Dec. 27, 2003, at B1.

27

in that area of the law with great regularity. For a layman

that density is total... .”). Accordingly, immigration agents

undergo a rigorous, comprehensive training program that

orients them to the complexities of federal immigration law

and its enforcement. As the official Bureau of Immigration

and Customs Enforcement website reports:

The Immigration Enforcement Agent basic train-

ing course is an approximately 4-and-a-half

month residential program, and includes instruc-

tion in both academics and physical training. Aca-

demics include training in the following subject

areas: Immigration Law, Alien Removal Process

and Procedures, Fraudulent Document Detection,

Immigration and Naturalization Act Statutory

Authorities (Detention, Arrest, etc.), Behavioral

Science, Constitutional Law, Conspiracy Law,

Criminal Law, Fugitive Operations, Civil Liber-

ties and Liabilities and Spanish Language.

Immigrant Enforcement Agent, Bureau of Immigration

and Customs Enforcement, at http://www.ice.gov/graphics/

careers/invest/invest_iea.htm (last visited Nov. 3, 2004);

see also Lewis v. Smith, 731 F.2d 1535, 1538 (11th Cir.

1984) (reporting that “the INS provides firearms training,

Spanish lessons, familiarity with immigration laws and

procedures and investigative techniques”). Such intensive

training is important to ensure, among other things, that

immigration agents do not wrongfully target a person who

has a legal right to be in the United States.

Police officers, who receive no training in the intrica-

cies of immigratic 1 law, are bound to make mistakes,

exposing them to iiability for their improper actions.

Indeed, the federal government recognizes that adequate

training of police officers is a prerequisite to granting

them any limited, express authority to enforce immigra-

tion law. In enacting one of the narrow provisions that

28

expressly authorizes the Attorney General to enlist local

officers to enforce immigration law, Congress specifically

directed that those officers receive adequate immigration

enforcement training. See 8 U.S.C. § 1357(g)(2) (1999)

(requiring a “written certification that the officers or

employees ... have received adequate training regarding

the enforcement of relevant Federal immigration laws”).

This provision demonstrates Congress’ recognition that

enforcement of federal immigration law by state and local

police without the proper training is fraught with danger.

Such enforcement would force states and localities into a

no-win situation: either they expend substantial resources

to train officers in the complexities of immigration law or

expend substantial resources defending their mistakes

after they occur.

Moreover, as discussed above, racial profiling is a

routine aspect of immigration law enforcement. See discus-

sion supra Part B. Amici are concerned that the racial

profiling likely to result from police enforcement of immi-

gration law will also put officers at risk of liability and

further burden states and localities. In particular, while it

may be permissible to use race as one factor among others

in enforcing immigration law, see Brignoni-Ponce, 422 U.S.

at 886, amici fear that untrained police officers will engage

in improper racial profiling by relying solely on characteris-

tics such as skin color or a foreign-sounding accent in

deciding whether to question a person about his or her

immigration status, thus exposing themselves to liability

for racial profiling under an array of constitutional provi-

sions and federal statutes. See, e.g., Lisa M. Seghetti et al.,

Enforcing Immigration Law: The Role of State and Local

Law Enforcement, Congressional Research Service Report

for Congress, Mar. 11, 2004, at 234 (“[A] high risk for civil

rights violations may occur if state and local police do not

obtain the requisite knowledge, training, and experience in

29

dealing with the enforcement of immigration laws.”); see

generally David Rudovsky, Enforcement by Stereotypes and

Serendipity: Racial Profiling and Stops and Searches

without Cause, 3 U. Pa. J. Const. L. 296 (2001) (discussing

the Fourth Amendment, the Equal Protection clause of the

Fourteenth Amendment, Title VI of the Civil Rights Act of

1964, and 42 U.S.C. § 1983 as potential vehicles for chal-

lenging racial profiling). INS agents, who receive special-

ized training in immigration law enforcement, are far less

likely to succumb to this impermissible practice.

In addition, numerous states and localities have

adopted ordinances and resolutions prohibiting police

officers — but obviously not INS agents — from engaging in

racial profiling. See, e.g., Ark. Code. Ann. § 12-12-1402

(Michie 2003); H.R.J. Res. 22, 23rd Leg., Ist Sess. (Alaska

2003); Cal. Penal Code § 13519.4(d)-(f) (West 2004); Conn.

Gen. Stat. § 54-11 (1999); Ky. Rev. Stat. Ann. § 15A.195

(Banks-Baldwin 2001); Minn. Stat. § 626.8471 (2001);

Mont. Code Ann. § 44-2-117 (2003); Neb. Rev. Stat. §§ 20-

501, 20-504(1) (2004); Okla. Stat. Ann. Tit. 22 § 34.3 (West

2000); R.I. Gen. Laws § 31-21.1-2 (2002); Tenn. Code Ann.

§ 45-6-223 (2001); Tex. Crim. Proc. Code Ann. art. 2.131

(Vernon 1977); Wash. Rev. Code § 43.101.410 (2002); W.

Va. Code § 30-29-10 (2002); Anchorage, Alaska, Res. 223-

2003 (July 15, 2003); Berkeley, Cal., Res. No. 61,747-N.S.

(Sept. 10, 2002); Boulder, Colo., Res. Expressing the

Commitment of the City of Boulder to Civil Rights and

Liberties and Acknowledging that the Boulder Police

Department Already Incorporates Most of the Following in

their Current Policies and Procedures (July 23, 2002);

Denver, Colo., Res. No. 13 (Mar. 18, 2002); N.J. Exec.

Order No. 127, 33 N.J. Reg. 2233(a) (May 23, 2001); Nev.

Rev. Stat. 289.820 (2001); N.Y., N.Y., Res. No. 60 (Feb. 4,

2004). Unlike INS agents, police officers could be held

liable under these state and local laws. Thus, the overall

30

risk of liability police officers face when they undertake

the enforcement of federal immigration law is clearly

greater than that faced by INS agents.

On balance, the significant costs associated with local

enforcement of immigration law — measured by the strain

on state and local resources and by the damage to police-

community relations and public safety — nullify any pur-

ported benefits of pursuing this exclusively federal interest.

CONCLUSION

In light of the overlooked complexities inherent in the

first question presented by Petitioners as well as the damag-

ing consequences a ruling on this question could have on

state and local law enforcement, amici join Respondent in

urging the Court to decide this case on other grounds.

Respectfully submitted,

BAHER AZMY* LAWRENCE S. LUSTBERG

Lor! A. NESSEL JONATHAN L. HAFFTZ

ANJUM GUPTA GIBBONS, DEL DEC.

JESSICA YAGER DOLAN, GRIFFINGER

SETON HALL LAW SCHOUL & VECCHIONE, P.C.

CENTER FOR SOCIAL JUSTICE One Pennsylvania Plaza

833 McCarter Highway 37th Floor

Newark, New Jersey 07102 New York, New York 10119

(973) 642-8700 (212) 649-4700

Attorneys for Amici Curiae

* Counsel of Record

Dated: November 3, 2004