On February 7, 2013, ACLU IRP, the ACLU of Alabama, and coalition partners filed a lawsuit challenging § 5 of HB658, which would create an online registry of “unlawfully present aliens” who were arrested and appeared in an Alabama court for any alleged violation of state law. The lawsuit was brought on behalf of four Doe plaintiffs arrested for fishing without a license, and seeks declaratory and injunctive relief. The named defendants are Rich Hobson, Administrative Director of the Courts, and Spencer Collier, Director of the Alabama Department of Homeland Security. The complaint alleges that this “blacklist” or “Scarlet Letter” is preempted and violates procedural due process.

Although the provision went into effect upon enactment of HB658 (on May 18, 2012), the State made little attempt to implement it for several months. When we learned that the first list of “unlawfully present aliens” would be posted online in early 2013, we prepared our suit. On February 7, 2013, we filed our complaint, a motion to proceed under pseudonyms, and a class certification motion. On February 26, the State filed a motion to dismiss, or in the alternative for summary judgment, arguing that our plaintiffs lack standing because (a) theirs claims are not ripe; (b) they’ve suffered no injury-in-fact; and/or (c) the State has no plans to enforce the public posting portion of § 5 (although the last was put in terms of standing, it’s really an argument about mootness). We filed our opposition on March 21, arguing that we have standing and that our case is not moot because the State has not proven (as it must) that its current non-enforcement position will not change in the future. We argued that, at the very least, we should be permitted to conduct discovery on Defendants’ newly-announced policy change. The Defendants filed a reply on March 28, which included additional evidence, and so we filed a sur-reply on April 4. Our motion to proceed under pseudonyms, our motion for class certification, and the defendants’ motion to dismiss/for summary judgment all remain pending.

On July 31, 2013, the court issued an order (2013 WL 3947230) granting the motion to dismiss on the grounds that the plaintiffs did not allege that they were “unlawfully present aliens,” and therefore did not sufficiently allege injury in fact to have standing (i.e., since they didn’t allege that they were “unlawfully present aliens,” it wasn’t sufficiently likely that the State would label them as such). We filed a motion for reconsideration on August 14, 2013 (pointing out that we don’t have to allege that the State would be correct in labeling the Plaintiffs “unlawfully present aliens” – especially since, we argue, that label is wholly State-created and thus preempted – only that the State would so label them, which we have sufficiently alleged), which was granted on January 6, 2014 (2014 WL 37235). The parties submitted supplemental briefs on the motion to dismiss, which was then denied. Doe v. Hobson, 17 F.Supp.3d 1141 (M.D. Ala. 2014). The court subsequently granted our motion for the plaintiffs to proceed under pseudonyms. Doe v. Hobson, 300 F.R.D. 576 (M.D. Ala. 2014).

We entered into settlement negotiations with defendants and were able to reach an agreement setting forth the policies limiting the use of data gathered. The Court will retain jurisdiction for five years on the settlement which also requires defendants to give notice in advance of any proposed policy changes during that time period.

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