Ga. Latino Alliance for Human Rights v. Governor of Ga.

• Citation: 23 Fla. L. Weekly Fed. C 1413,691 F.3d 1250
• Decision Date: 20 August 2012
• Docket Number: No. 11–13044.,11–13044.
• Parties: GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS, Service Employees International Union, Southern Regional Joint Board of Workers' United, Dream Activist.org, Task Force for the Homeless, et al., Plaintiffs–Appellees, v. GOVERNOR OF GEORGIA, Attorney General, State of Georgia, Defendants–Appellants, Commissioner of the Department of Human Services of the State of Georgia, et al., Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

691 F.3d 1250

23 Fla. L. Weekly Fed. C 1413

GEORGIA LATINO ALLIANCE FOR HUMAN RIGHTS, Service Employees International Union, Southern Regional Joint Board of Workers' United, Dream Activist.org, Task Force for the Homeless, et al., Plaintiffs–Appellees,

v. GOVERNOR OF GEORGIA, Attorney General, State of Georgia, Defendants–Appellants,Commissioner of the Department of Human Services of the State of Georgia, et al., Defendants.

No. 11–13044.

United States Court of Appeals, Eleventh Circuit.

Aug. 20, 2012.

Validity Called into Doubt

West's Ga.Code Ann. §§ 16–11–200, 16–11–201, 16–11–202, 16–11–203Jonathan Blazer, Tanya Broder, Nora A. Preciado, Nat. Imm. Law Ctr., Oakland, CA, Katherine Desormeau, Kenneth J. Sugarman, Cecillia D. Wang, ACLU Immigrant's Rights Project, Winifred V. Kao, Sin Yen Ling, Asian Law Caucus, San Francisco, CA, Omar C. Jadwat, Elora Mukherjee, Andre I. Segura, ACLU, New York City, Linton Joaquin, Melissa S. Keaney, Karen Cassandra Tumlin, Nora A. Preciado, Nat. Imm. Law Ctr., Los Angeles, CA, Mary Catherine Bauer, Samuel Jacob Brooke, Andrew Hess Turner, Southern Poverty Law Ctr., Montgomery, AL, Danielle M. Conley, Charles H. Kuck, Kuck Imm. Partners LLC, Robert Keegan Federal, Jr., Federal & Hasson, LLP, Chara Fisher Jackson, Azadeh N. Shahshahani, ACLU Foundation of Georgia, Inc., Michelle Lapointe, Naomi R. Tsu, Daniel Werner, Southern Poverty Law Ctr., George Brian Spears, G. Brian Spears, PC, Atlanta, GA, for Plaintiffs–Appellees.

Devon Orland, Samuel Scott Olens, Kathleen M. Pacious, Atty. General's Office, Meghan Robson Davidson, Nall & Miller, LLP, Atlanta, GA, for Defendants–Appellants.

Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Amicus Curiae Judicial Watch, Inc.

Karen Bryant Tripp, Karen B. Tripp, Houston, TX, for Amicus Curiae Eagle Forum Education & Legal Defense Fund, Inc.

Richard Peter Hutchison, Landmark Legal Foundation, Kansas City, MO, for Amicus Curiae Landmark Legal Foundation.

Anjan Choudhury, Gregory D. Phillips, Munger Tolles & Olson, LLP, Los Angeles, CA, for Amicus Curiae Freedom Network USA.

Douglas B. Rohan, Rohan Law, PC, Atlanta, GA for Amicus Curiae Georgia Ass'n of Latino Elected Officals.

Andrew Harold Marks, Crowell & Moring, LLP, Washington, DC, for Amicus Curiae Legal Momentum and Asista Imm. Assistance.

Rebecca Sharpless, University of Miami School of Law, Coral Gables, FL, for Amicus Curiae American Imm. Lawyers Ass'n.

Christopher R. Clark, Carla Gorniak, Henry Lawrence Solano, Dewey & LeBoeuf, LLP, New York City, for Amicus Curiae The United Mexican States, et al.

Dale M. Schwartz, Dale M. Schwartz & Associates, LLP, Atlanta, GA, for Amicus Curiae Anti–Defamation League.

Appeal from the United States District Court for the Northern District of Georgia.

Before WILSON and MARTIN, Circuit Judges, and VOORHEES,^* District Judge.

WILSON, Circuit Judge:

In April 2011, Georgia lawmakers enacted House Bill 87, the Illegal Immigration Reform and Enforcement Act of 2011 (H.B. 87), to address the problem of illegal immigration within the state. Although the provisions of H.B. 87 seek to tackle numerous issues, only two sections are at issue in this appeal of the district court's grant of a preliminary injunction.

Section 7 codifies three separate crimes for interactions with an “illegal alien,” defined as “a person who is verified by the federal government to be present in the United States in violation of federal immigration law.” O.C.G.A. §§ 16–11–200(a)(1), 201(a)(2), 202(a). The first provision of section 7 creates the offense of “transporting or moving an illegal alien,” which applies to “[a] person who, while committing another criminal offense, knowingly and intentionally transports or moves an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the alien in the United States.” Id. § 16–11–200(b). Excepted from this criminal provision are, among others, persons providing privately funded social services. Id. § 16–11–200(d)(5).

The second provision creates the offense of “concealing or harboring an illegal alien,” which applies to “[a] person who is acting in violation of another criminal offense and who knowingly conceals, harbors, or shields an illegal alien from detection in any place in [Georgia], including any building or means of transportation, when such person knows that the person being concealed, harbored, or shielded is an illegal alien.” Id.§ 16–11–201(b). No criminal liability attaches to certain acts committed by government employees or persons acting at the direction of a government employee that would otherwise fall within the scope of the prohibited conduct. Id.§ 16–11–201(d).

The third provision creates the offense of “inducing an illegal alien to enter into [Georgia],” which applies to “[a] person who is acting in violation of another criminal offense and who knowingly induces, entices, or assists an illegal alien to enter into [Georgia], when such person knows that the person being induced, enticed, or assisted to enter into [Georgia] is an illegal alien.” Id.§ 16–11–202(b).

Section 8 of H.B. 87 authorizes Georgia law enforcement officers to investigate the immigration status of an individual if the officer has probable cause to believe the individual has committed another crime and the individual cannot provide one of the pieces of identification listed in the statute. O.C.G.A. § 17–5–100(b). If the officer verifies that the individual is not lawfully present in the United States, the officer “may take any action authorized by state and federal law,” including detaining the person, transporting the person to a detention facility, or notifying the Department of Homeland Security (DHS). Id. § 17–5–100(e). Section 8 prohibits consideration of “race, color, or national origin” in implementing its requirements “except to the extent permitted by the Constitutions of Georgia and of the United States.” Id. § 17–5–100(d). It also prohibits investigation into the immigration status of persons who witness or report criminal activity, where the reason for investigation is based on information arising from that contact. Id. § 17–5–100(f).

On June 2, 2011, Plaintiffs filed a preenforcement constitutional challenge to sections7 and 8 claiming that, among other things, they were preempted by the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.¹ Shortly thereafter, Plaintiffs moved to preliminarily enjoin enforcement of these sections. The district court granted Plaintiffs' motion and preliminarily enjoined enforcement of sections 7 and 8 on the ground that each was preempted by federal law. Ga. Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317 (N.D.Ga.2011). Defendants (hereafter referred to as the State Officers) appeal the district court's order, and the central issue we face is whether Plaintiffs are likely to succeed on the merits of their challenge to the constitutionality of sections 7 and 8.

I. Standard of Review

We review de novo whether plaintiffs have standing to bring a suit, Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.2005), and whether a cause of action exists to bring suit, see Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1115 (11th Cir.2012) (per curiam). We review a district court's grant of a preliminary injunction for abuse of discretion. McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998). Legal determinations underlying the grant of an injunction are reviewed de novo, and factual determinations are reviewed for clear error. Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1171–72 (11th Cir.2002).

II. Discussion

A. Standing

Before considering the merits of the challenge to H.B. 87, we confront the threshold issue of whether Plaintiffs may properly challenge the law at all. First, we must address the State Officers' contention that Plaintiffs lack standing to challenge the provisions at issue. The State Officers argue that Plaintiffs fail to satisfy the standing requirement of Article III, which limits federal jurisdiction to actual cases and controversies. To invoke our jurisdiction, a plaintiff must demonstrate that he has suffered an “injury in fact,” meaning “an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). In addition to a cognizable injury, “a causal connection” must exist that links the injury to the complained-of conduct, requiring in essence that the injury be “fairly traceable to the challenged action of the defendant” rather than “the result of the independent action of some third party not before the court.” Id. Finally, it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id.

When, as here, plaintiffs file a preenforcement, constitutional challenge to a state statute, the injury requirement may be satisfied by establishing “ ‘a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement.’ ” Socialist Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir.1998) (quoting Am. Civil Liberties Union v. The Fla. Bar ( ACLU), 999 F.2d 1486, 1492 (11th Cir.1993)). A plaintiff may meet this standard in any of three ways: “(1) [the plaintiff] was threatened with application of the statute; (2) application is likely; or (3) there is a credible threat of application.” Id. (citing ACLU, 999 F.2d at 1492). While it is unnecessary for a plaintiff to “expose himself to actual arrest or prosecution” to challenge a statute, Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979), we will not accept as plaintiffs “persons having no fears of state prosecution except those that are imaginary or speculative,” Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1...