Judge tosses Pax­ton’s SB 4 suit against city

Austin, Travis County can’t vi­o­late law not in ef­fect yet, jurist rules.

Austin American-Statesman - - FRONT PAGE - By Philip Jankowski pjankowski@states­man.com

A fed­eral judge in Austin has de­liv­ered the first de­feat to the state’s con­tro­ver­sial Se­nate Bill 4, the so-called sanc­tu­ary cities ban, with a rul­ing that tossed a law­suit seek­ing to have the law de­clared con­sti­tu­tional be­fore it

takes ef­fect in the com­ing weeks. U.S. District Judge Sam Sparks dis­missed a law­suit Texas At­tor- ney Gen­eral Ken Pax­ton had filed against the city of Austin and Travis County and ruled that Pax­ton’s suit had no stand­ing be­cause it was based on hy­po­thet­i­cal vi­o­la­tions of the law that have not hap­pened.

“Be­cause SB 4 does not take ef­fect un­til Septem­ber 1, 2017,

it is im­pos­si­ble for de­fen­dants to take any ac­tion that would vi­o­late the not-yet-ef­fec­tive law,” Sparks’ rul­ing said Tues­day. “The mere fact that a mu­nic­i­pal pol­icy was in­sti­tuted be­fore a law was signed, or that it re­mains in place prior to the law tak­ing ef­fect, does not equate to a vi­o­la­tion of the law.”

SB 4 cre­ated civil and crim­i­nal penal­ties for po­lice and elected of­fi­cials — in­clud­ing ar­rest or re­moval from of­fice — if they block co­op­er­a­tion with fed­eral re­quests to de­tain jail in­mates sus­pected of liv­ing in the coun­try il­le­gally. The new law also al­lows au­thor­i­ties to in­quire about a per­son’s im­mi­gra­tion sta­tus dur­ing rou­tine po­lice en­coun­ters, such as traf­fic stops.

Pro­po­nents of the law say it would keep crim­i­nals off the streets and pre­vent peo­ple liv­ing in the coun­try il­le­gally from evad­ing im­mi­gra­tion hear­ings that would lead to de­por­ta­tions.

Op­po­nents say SB 4 will lead to racial pro­fil­ing and break apart im­mi­grant fam­i­lies over mi­nor in­frac­tions.

Austin and Travis County be­came the epi­cen­ter of the bat­tle over SB 4 and “sanc­tu­ary cities” af­ter Travis County Sher­iff Sally Her­nan­dez in­sti­tuted a pol­icy that ig­nores many fed­eral de­ten­tion re­quests placed on lo­cal in­mates sus­pected of il­le­gal im­mi­gra­tion.

Gov. Greg Ab­bott pulled $1.5 mil­lion in crim­i­nal jus­tice grants from the county and made SB 4 one of his top leg­isla­tive pri­or­i­ties, fir­ing an open­ing salvo in a Leg­is­la­ture that has dealt many blows to lo­cal rule in Austin.

Sparks’ rul­ing doesn’t in­val­i­date SB 4. How­ever, it does pave the way for an­other law­suit re­gard­ing SB 4 in San An­to­nio to take pri­macy.

Austin, Travis County and nearly ev­ery other ma­jor Texas city have sued the state, seek­ing to in­val­i­date SB 4 in the San An­to­nio fed­eral court.

Those cities are seek­ing to tem­po­rar­ily halt the im­ple­men­ta­tion of SB 4 while the fed­eral court de­cides whether SB 4 is con­sti­tu­tional. They ar­gue the state law cre­ates im­mi­gra­tion law, which is a power only granted to the fed­eral gov­ern­ment.

San An­to­nio fed­eral Judge Or­lando Gar­cia is ex­pected to rule on that suit in the com­ing days.

Pax­ton said in a news re­lease Wed­nes­day that he would con­tinue de­fend­ing SB 4 in San An­to­nio and in other courts if nec­es­sary.

“The health, safety, and wel­fare of Tex­ans is not ne­go­tiable,” Pax­ton said. “We’re dis­ap­pointed with the court’s rul­ing and look for­ward to press­ing our win­ning ar­gu­ments in the San An­to­nio cases and be­yond (if nec­es­sary) on this un­doubt­edly con­sti­tu­tional law.”

For many lo­cal lead­ers, Pax­ton’s suit felt per­sonal. The ink from Ab­bott’s sig­na­ture on SB 4 had hardly dried when Pax­ton filed the suit, nam­ing all Austin City Coun­cil mem­bers and Mayor Steve Adler as de­fen­dants.

Coun­cil Mem­ber Greg Casar said the rul­ing was “a step in the right di­rec­tion.”

“It has been ob­vi­ous from the be­gin­ning that Ken Pax­ton’s law­suit against my col­leagues was friv­o­lous and with­out stand­ing, and to in­tim­i­date lo­cal of­fi­cials ad­vo­cat­ing against Se­nate Bill 4,” Casar said.

The Travis County sher­iff was later added as a de­fen­dant in the suit. When reached for com­ment, Her­nan­dez told the Amer­i­can-States­man she was “very, very pleased” with the rul­ing.

“The good part is it al­lows Judge Gar­cia to move for­ward on the con­sti­tu­tion­al­ity on SB 4 in San An­to­nio,” Her­nan­dez said. “I think it is on the right path.”

Texas At­tor­ney Gen­eral Ken Pax­ton said he was “dis­ap­pointed” by the rul­ing.

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