Austin American-Statesman

Court to hear ‘sanctuary’ arguments

Federal hearing Monday will allow opponents to speak against new law.

- By Philip Jankowski pjankowski@statesman.com

Challenger­s of Senate Bill 4, the “sanctuary cities” ban, will have their first day in federal court Monday before a presiding judge who has recently ruled that federal immigratio­n detention requests central to the controvers­ial state law are unconstitu­tional.

Monday’s hearing in San Antonio before U.S. District Judge Orlando Garcia will be the first time a coalition of advocacy groups and many of Texas’ largest cities will square off against state Attorney General Ken Paxton’s office and the Trump administra­tion in court.

Beginning at 9:30 a.m., Garcia will hear arguments about the numerous preliminar­y injunction­s filed to stop the law from taking effect Sept. 1.

“For five months, we’ve been on the sidelines while the Legislatur­e has treated Austin’s safety like a political football,” Mayor Steve Adler said in a recent statement. “I’m glad the action is moving to court, where it’s not about politics. It’s about the law.”

The bill’s author, state Sen. Charles Perry, R-Lubbock, has said the law is meant to keep communitie­s safer and to counter “a culture of contempt” for federal immigratio­n law enforcemen­t.

At its heart, SB 4 creates civil and criminal penalties for police and elected officials — including arrest or removal from office — if they block cooperatio­n with Immigratio­n and Customs Enforcemen­t requests to detain jail inmates who are undocument­ed immigrants or legal permanent residents who could be deported.

The SB 4 hearing before Garcia comes after his June 5 ruling against Bexar County in a detention case.

Garcia found that the Bexar County sheriff had engaged in a “warrantles­s detention” by holding a Mexican citizen in jail on behalf of immigratio­n officials for more than two months after criminal charges had been dropped. In his summary judgment, Garcia pointed out that immigratio­n violations were mostly civil matters and said that for the sheriff ’s office to assume that probable cause exists to detain everyone for whom ICE issues a detention request, known as a detainer, was “unreasonab­le.”

Sheriff makes case

Local officials are paying attention to Garcia’s ruling. In a filing last week, Travis County Sheriff Sally Hernandez outlined how requiring her office to comply with ICE detainers could place her between a rock and a hard place.

“By forcing me to detain individual­s without discretion, SB 4 places me in the position of having to choose whether to violate the Fourth Amendment rights of individual­s in my custody or to personally face criminal penalties and removal from office,” Hernandez said.

SB 4 also allows police to inquire about a person’s immigratio­n status during routine police encounters, such as traffic stops.

The lawsuit was first filed by the small border city of El Cenizo, in the days after Gov. Greg Abbott signed SB 4 into law. Since then, that suit has been consolidat­ed with challenges from San Antonio and El Paso. Austin, Dallas and several advocacy groups have also joined the suit.

Paxton’s office is seeking to have the suit removed from Garcia’s court and consolidat­ed with a lawsuit he filed against Austin just hours after the governor signed SB 4 last month. U.S. District Court Judge Sam Sparks is presiding over that case in Austin.

A busy docket

As the various challenges to SB 4 have rolled in from across the state, a leading argument has emerged against the measure: Texas violated the U.S. Constituti­on in creating immigratio­n law, a power that is solely reserved for the federal government.

The idea in the supremacy clause of the Constituti­on is that foreign powers cannot be required to deal with a patchwork of disparate immigratio­n laws passed by states or even municipali­ties.

SB 4 opponents argue that the new state law requires local officials to treat ICE detainers not as requests, but as legally binding orders, circumvent­ing the federal government’s jurisdicti­on over such matters.

However, the U.S. Justice Department argues that not only is SB 4 not preempted by the supremacy clause, it is allowed under the Tenth Amendment — powers not delegated to the federal government by the Constituti­on rest with the states — and doesn’t violate the Fourth Amendment’s protection against unlawful detention.

Paxton’s office hasn’t filed any responses to the complaints in this suit. However, in his suit against Austin and Travis County, Paxton said SB 4 prevents Travis County from hampering the federal government’s “constituti­onal authority to make removal decisions” for people found to be in the country illegally.

The attorney general’s suit also argues that, until a court declares SB 4 constituti­onal, government­s in places like Travis County will not comply. Hernandez has said she would follow the law.

Sparks will hold the first hearing on the case Thursday in Austin.

On Monday, SB 4’s challenger­s will attempt to show that allowing the law to take effect would cause harm to people and communitie­s. Court documents show that witnesses are to include elected officials and experts. Some might attempt to show the law would cause economic harm while others could testify that it would create hardship in their respective communitie­s, court documents show.

Austin’s motion to block SB 4 included statements from teenagers and aid groups. A low-cost health clinic and an organizati­on that runs Austin’s domestic violence shelter said SB 4 and recent ICE raids created fear of deportatio­ns in the immigrant communitie­s.

Garcia will likely not make any ruling on Monday, according to Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educationa­l Fund.

On Friday, U.S. Attorney General Jeff Sessions’ office filed paperwork with the court, notifying Garcia of the Justice Department’s intent to defend SB 4 in this suit.

“The Department of Justice fully supports Texas’s effort and is participat­ing in this lawsuit,” Sessions said in a statement Friday, “because of the strong federal interest in facilitati­ng the state and local cooperatio­n that is critical in enforcing our nation’s immigratio­n laws.”

The Justice Department will argue in defense of the law but will not be able to present any evidence, Perales said.

The move by Sessions was expected, and it vaulted SB 4 from a state issue to a national one.

Allowing SB 4 to take effect would influence other states to create similar laws, said Austin City Council Member Greg Casar, an ardent critic of the law.

“Stopping SB 4 is bigger than Texas,” Casar said.

 ?? CONTRIBUTE­D ?? Federal agents in Dallas participat­e in a targeted ICE operation in June that resulted in 70 arrests in the Dallas and Oklahoma areas during a three-day ICE operation targeting criminal aliens, illegal reentrants and immigratio­n fugitives.
CONTRIBUTE­D Federal agents in Dallas participat­e in a targeted ICE operation in June that resulted in 70 arrests in the Dallas and Oklahoma areas during a three-day ICE operation targeting criminal aliens, illegal reentrants and immigratio­n fugitives.
 ?? RALPH BARRERA / AMERICAN-STATESMAN ?? Austin Mayor Steve Adler joins other state and local leaders at a protest of the “sanctuary cities” legislatio­n that Gov. Greg Abbott signed into law last month. Austin has joined San Antonio and others in a lawsuit challengin­g SB 4.
RALPH BARRERA / AMERICAN-STATESMAN Austin Mayor Steve Adler joins other state and local leaders at a protest of the “sanctuary cities” legislatio­n that Gov. Greg Abbott signed into law last month. Austin has joined San Antonio and others in a lawsuit challengin­g SB 4.

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