July 02, 2010

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

The American Bar Association 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.

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