Sanc­tu­ary cities law is up­held

Rul­ing a ma­jor win for state, but plain­tiffs say the fight isn’t over yet

The Dallas Morning News - - Front Page - By JAMES BARRAGÁN Austin Bureau jbar­ra­gan@dal­las­

AUSTIN — A fed­eral ap­peals court ruled Tues­day that most of Texas’ sanc­tu­ary cities law can re­main in ef­fect while the le­gal bat­tle con­tin­ues in a lower district court, a ma­jor vic­tory for the state.

With the ex­cep­tion of a statute that would pun­ish lo­cal of­fi­cials for en­dors­ing poli­cies that limit fed­eral im­mi­gra­tion en­force­ment, the 5th U.S. Cir­cuit Court of Ap­peals al­lowed the rest of the law to stand.

The court blocked that sec­tion of the law be­cause it deemed the word “en­dorse” to be too broad and risked sub­ject­ing lo­cal of­fi­cials to pun­ish­ment for speak­ing out against the law, a vi­o­la­tion of the First Amend­ment guar­an­tee to free speech. Of­fi­cials who act on lim­it­ing fed­eral im­mi­gra­tion en­force­ment, how­ever, are still sub­ject to pun­ish­ment.

“With one ex­cep­tion, SB 4’s pro­vi­sions do not, on their face, vi­o­late the Con­sti­tu­tion,” the court’s opinion reads.

Un­der the law Gov. Greg Ab­bott signed last May, po­lice in the state can ask peo­ple they de­tain about their im­mi­gra­tion sta­tus. Ju­ris­dic­tions that vi­o­late the law are sub­ject to fines of up to $25,000 a day, and lo­cal of­fi­cials who break the law can be re­moved.

Tues­day’s rul­ing comes af­ter At­tor­ney Gen­eral Ken Pax­ton chal­lenged a San An­to­nio district judge’s de­ci­sion to tem­po­rar­ily block the law in Au­gust, two days be­fore it was sup­posed to go into ef­fect. Plain­tiffs in the case used the state’s ap­peal to ar­gue that the law should be blocked en­tirely.

In Septem­ber, a sep­a­rate three-judge panel from the ap­peals court al­lowed parts of the law to pro­ceed. Since then, the state has im­ple­mented the law on a lim­ited ba­sis and be­gan ac­cept­ing res­i­dents’ com­plaints.

Tues­day’s de­ci­sion from the tra­di­tion­ally con­ser­va­tive 5th Cir­cuit lets most of the law re­main in ef­fect un­til the San An­to­nio district court can fully re­solve the case.

Texas of­fi­cials cel­e­brated the rul­ing.

“Texas Ban on Sanc­tu­ary City Poli­cies up­held by Fed­eral Court of Ap­peals,” Ab­bott tweeted. “Al­le­ga­tions of dis­crim­i­na­tion were re­jected. Law is in ef­fect.”

Praise from Pax­ton

Pax­ton praised the rul­ing in a pre­pared state­ment.

“I’m pleased the 5th Cir­cuit rec­og­nized that Se­nate Bill 4 is law­ful, con­sti­tu­tional and pro­tects the safety of law en­force­ment of­fi­cers and all Tex­ans,” Pax­ton said. “En­forc­ing im­mi­gra­tion law pre­vents the re­lease of in­di­vid­u­als from cus­tody who have been charged with se­ri­ous crimes. Dan­ger­ous crim­i­nals shouldn’t be al­lowed back into our com­mu­ni­ties to pos­si­bly com­mit more crimes.”

Lee Gel­ernt, deputy di­rec­tor of the ACLU’S Im­mi­grants’ Rights Project, who ar­gued the case be­fore the ap­peals court, said the plain­tiffs are ex­plor­ing their le­gal op­tions, which could in­clude ap­peal­ing the de­ci­sion to the Supreme Court.

“The court made clear that we re­main free to chal­lenge the man­ner in which the law is im­ple­mented, so we will be mon­i­tor­ing the sit­u­a­tion on the ground closely,” he said in a writ­ten state­ment. “We are also pleased that the court nar­rowed the law in cer­tain re­spects.”

The plain­tiffs in­clude all of Texas’ largest cities, in­clud­ing Dal­las, as well as sev­eral coun­ties and civil rights or­ga­ni­za­tions.

Grand Prairie Rep. Chris Turner, the leader of the House Demo­cratic Cau­cus, said the le­gal bat­tle isn’t over.

‘One step’

“Se­nate Bill 4 is un­nec­es­sary, makes Texas com­mu­ni­ties less safe and com­pli­cates law en­force­ment of­fi­cials’ al­ready-dif­fi­cult jobs,” he said in a pre­pared state­ment. “Today’s rul­ing is one step in what is likely a long le­gal bat­tle and I re­main hope­ful that this law will even­tu­ally be ruled un­con­sti­tu­tional by the courts.”

In its opinion, the court came down hard on the plain­tiffs’ ar­gu­ments that Texas’ sanc­tu­ary cities law is pre­empted by fed­eral im­mi­gra­tion law and that it vi­o­lates the First, Fourth and Four­teenth amend­ments of the Con­sti­tu­tion.

The court ruled that while fed­eral statutes cre­ate a highly reg­u­lated scheme for co­op­er­a­tion be­tween fed­eral im­mi­gra­tion au­thor­i­ties and lo­cal en­ti­ties, they “also ex­pressly al­low co­op­er­a­tion in im­mi­gra­tion en­force­ment out­side those agree­ments,” which al­lows for the type of co­op­er­a­tion the sanc­tu­ary cities law en­cour­ages. “Fed­eral law reg­u­lates how lo­cal en­ti­ties may co­op­er­ate in im­mi­gra­tion en­force­ment; SB4 spec­i­fies whether they co­op­er­ate,” the opinion reads.

The judges also shot down the idea that the law com­pels lo­cal po­lice of­fi­cers to en­force im­mi­gra­tion law with­out train­ing. They pointed to a statute in the law spec­i­fy­ing that the lo­cal as­sis­tance must oc­cur “with a fed­eral im­mi­gra­tion of­fi­cer as rea­son­able or nec­es­sary” and said it does not per­mit lo­cal of­fi­cials to act with­out fed­eral di­rec­tion or su­per­vi­sion. The court also re­lied on pre­vi­ous rul­ings con­cern­ing Ari­zona’s ‘pa­pers please’ law to let stand the Texas law’s pro­vi­sion on shar­ing in­for­ma­tion with fed­eral au­thor­i­ties and al­low­ing of­fi­cers to ask about im­mi­gra­tion sta­tus.

“If any­thing, the statute in Ari­zona seems more prob­lem­atic be­cause it man­dates sta­tus in­quiries where SB 4 merely for­bids pre­vent­ing those in­quiries,” the opinion reads.

The judges up­held the statute that says lo­cal jails must com­ply with re­quests from im­mi­gra­tion au­thor­i­ties to hold unau­tho­rized im­mi­grants for them and chas­tised plain­tiffs for chal­leng­ing that part of the law be­fore it was to go into ef­fect in Septem­ber.

Not enough

The court ruled that it was not enough for plain­tiffs to say that the re­quests would some­times vi­o­late the Fourth Amend­ment, which pro­hibits un­rea­son­able search and seizure. They needed to prove it would hap­pen ev­ery time.

“They have not sat­is­fied this ex­act­ing stan­dard,” the judges wrote.

The plain­tiffs also lost their ar­gu­ment that the part of the law ban­ning poli­cies that “ma­te­ri­ally limit” im­mi­gra­tion en­force­ment was too vague and should be in­val­i­dated be­cause the law al­ready pro­hibits in­ter­fer­ing in en­force­ment.

“Al­most any lim­i­ta­tion could be rechar­ac­ter­ized as a par­tial pro­hi­bi­tion,” the court wrote. “That is likely why SB4 in­cludes both terms. Oth­er­wise, sup­port­ers of the poli­cies just de­scribed could ar­gue that their poli­cies lim­ited but did not ac­tu­ally pro­hibit im­mi­gra­tion en­force­ment.”

2017 File Photo/ver­non Bryant

South Hill High School stu­dent Joyce­lyn On­tiveros ral­lied the crowd at a protest over the sanc­tu­ary cities ban in Fort Worth last Septem­ber. A panel of three 5th U.S. Cir­cuit Court of Ap­peals judges ruled Tues­day that most of the state’s im­mi­gra­tion en­force­ment leg­is­la­tion, Se­nate Bill 4, can re­main in ef­fect while the case plays out,

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