U.S. Attorney Dennis Burke, Arizona Attorney magazine, Jan. 2010

How best to come off a relaxing three-day weekend? Skim some e-mail? Return a few calls?

How about sinking your teeth into 83 pages of pleading paper?

That was my perhaps demented decision today, as I read line after line of the newest complaint filed against Arizona’s immigration regime commonly dubbed SB1070.

A number of lawsuits already have been filed against the new law. And today, the U.S. Department of Justice boarded the leaky freighter called the State of Arizona. In United States v. Janice K. Brewer, the Justice Department enumerated everything wrong with the new law—and made a motion for preliminary injunction, to boot.

The complaint advances the notion that “the federal government has the preeminent authority to regulate immigration issues.” From that foundational (we thought) principle, the DOJ says that the law must be held invalid. It relies on the Supremacy Clause, preemption under various portions of the Federal Code, and the Commerce Clause (that old chestnut).

The DOJ appears to rest its arguments on solid lawyerly stuff. For instance, I haven’t read every word of these pages scattered across my desk, but I’m betting I don’t see anything about “equal protection” or “civil rights.”

(Though the motion for the injunction is slightly more inflammatory. On page 41, it uses the phrase “civil liberties.” And some humanity is captured in the legal theories on page 27, where the DOJ writes, “Lawfully present individuals will inevitably be swept within Section 2’s broad ‘reasonable suspicion’ provision and subject to the state’s inquisitorial burdens.” That’s followed by the following footnote 23:

“Even under Arizona’s own training standards, factors that apply equally to lawfully- and unlawfully-present aliens would bring them within the ambit of Section 2’s “reasonable suspicion” standard. See, e.g., Arizona Peace Officers Standards & Training Board, Arizona S.B. 1070 Training Video, available at http://www.azpost.state.az.us/SB1070infocenter.htm (stating that inability to speak English and dress can be factors in determining reasonable suspicion).”

Maybe the lawyerly approach is a wise choice. I mean, if they feel they can win on the more esoteric aspects of the law, why not do it? The DOJ and the United States Attorney’s Office for the District of Arizona want to achieve a result, but without alienating large swaths of the population who are fed up about immigration enforcement. So stick to Con Law 101, rather than Civil Rights 101.

By coincidence (?), U.S. Attorney Dennis Burke is hosting his first of a series of Community Civil Rights Forums this very evening. It does not strain the imagination to believe that the DOJ wanted to get this lawsuit filed before Burke had to stand in front of a South Phoenix crowd to talk about equal treatment under the law.

I bet he doesn’t get many questions about the Commerce Clause.

That forum is at South Mountain High School tonight, at 6 pm. Maybe I’ll see you there.

Here is the press release.

Office of the United States Attorney, Dennis K. Burke

District of Arizona


Thursday, July 1,2010 WYN HORNBUCKLE

Telephone: (602) 514-7573

Cell: (602) 740-2422


PHOENIX – U.S. Attorney Dennis K. Burke will hold the first of a series of Civil Rights Forums focusing on federal civil rights laws such as official misconduct, new federal statutes on hate crimes and the investigation and prosecution of violations.

The Department of Justice has a longstanding mission to ensure fair and impartial administration of justice for all Americans. The forum brings together the faith community, local elected officials, the U.S. Attorney and the Federal Bureau of Investigation (FBI) to discuss the Department of Justice’s role in civil rights matters.

As such, the forum is designed to inform the public about reporting allegations of police misconduct and about the elements of a hate crime and what to do if they have been a victim. Additionally, a portion of the forum will also focus on the Matthew Shepard and James Byrd Hate Crimes Prevention Act which was signed by President Barack Obama last year. The act makes it a federal crime to willfully cause or attempt to cause bodily injury to another person with any dangerous weapon because of their race, religion, gender, disability, sexual orientation, or ethnicity/national origin.

“The Department of Justice has a duty to investigate community matters to ensure that an individual’s civil rights are not being violated by law enforcement misconduct or by an individual committing a hate crime,” said U.S. Attorney Dennis K. Burke. “As the U.S. Attorney, I feel strongly that people should have the confidence to come forward to this office or the FBI if they feel their civil rights have been violated or if they have been a victim of a hate crime. To address this issue, I recently created a Civil Rights Unit within the U.S. Attorney’s Office. The Unit not only plays an important role in educating and training law enforcement on civil rights matters, but it also vigorously prosecutes crimes of this nature.”

Matthew Shepard and James Byrd Hate Crimes Prevention Act carries Shepard’s name, who was killed due to his sexual orientation, as well as the name of James Byrd, Jr. Byrd, an African American, was murdered in 1998 when three men in Jasper, Texas, wrapped a chain around his ankles, hooked the chain to a pickup truck and then dragged him for miles over rural roads outside of Jasper. Byrd was targeted by his killers because of his race.

The Civil Rights Forum will be held in the auditorium of South Mountain High School which is located at 5401 S. 7th Street. The forum will be held on Tuesday, July 6 at 6:00p.m.and doors open at 5:30p.m. The public is encouraged to attend.

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For more information on the U.S. Attorney’s Office, District of Arizona, visit http://www.usdoj.gov/usao/az/