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Wednesday, February 28, 2024
Courthouse News Service
Wednesday, February 28, 2024 | Back issues
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Lawyers Spar Before Fifth Circuit Over Bid to Kill Sanctuary Cities

Lawyers for the state of Texas sparred for a second time Tuesday with cities and counties opposed to an anti-“sanctuary city” bill, as three federal judges tried to grasp what all the measure entails.

NEW ORLEANS (CN) – Lawyers for the state of Texas sparred for a second time Tuesday with cities and counties opposed to an anti-“sanctuary city” bill, as three federal judges tried to grasp what all the measure entails.

Lawyers for opponents of the bill – the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties – argued the legislation, Senate Bill 4, is too ambiguous and worded in such a way that leaves lots of room for unscrupulous interpretation.

Attorneys for the state, however, presented SB4 as being basically no more stringent on immigration than existing federal guidelines.

The cities and counties sued the state shortly after Texas Gov. Greg Abbott signed the new bill into law last May.

In August, just before the law was to go into effect, U.S. District Judge Orlando Garcia blocked several of its provisions. These included a stipulation that jailers honor “detainers” or requests from agents to turn over immigrants who potentially face deportation. Strict penalties apply for officials who refuse to cooperate in the form of potential jail time and fines of up to $25,000.

Under SB4, law enforcement officers are free to question the immigration status of people they arrest or  detain, including those stopped for minor traffic offenses. Local entities must exchange immigration information they obtain with federal officials, and if department heads and other higher ups disagree with the bill or immigration practices, the bill prohibits them from talking about it.

A separate Fifth Circuit panel who heard arguments in this case in September ruled the detainer provision could be in effect while the lawsuit continues to play out in court.

The panel, however, noted in its finding that the provision does not require detention for every Immigration and Customs Enforcement detainer request.

“Rather, the ‘comply with, honor, and fulfill’ provision mandates that local agencies cooperate according to existing ICE detainer practice and law,” the pur curiam opinion states.

The judges additionally found that law enforcement officers, including campus police, who have “authority that may impact immigration,” cannot be prevented from assisting federal immigration officers. But the panel upheld the lower court’s decision to block the part of the law that would prohibit public officials from endorsing sanctuary city policies, so for now at least public officials are still free to express their views regarding immigration enforcement.

Judge Edith Jones asked Texas Solicitor General Scott Keller several questions about the “endorsement” provision of the law that would prohibit officials from voicing their opinion about immigration practices.

“An elected official, like a sheriff or a county judge, certainly would have more latitude” to speak out against policies, wouldn’t they, Jones questioned.

Keller said the state is working on the issue and who it applies to.

Lee Gelernt,  an attorney with the American Civil Liberties Union, argued the state has kept the language of SB4 intentionally vague. He said also that the state is continuously changing how aspects of the law are defined.

“One of the critical aspects is that Texas has never been able to settle on an interpretation of the law,” Gelernt said. “Every time Texas comes to court, they say its obvious what it means for a sheriff to materially limit immigration enforcement. But on the other hand, every time we get to a new court, they change their interpretation, so it’s not clear.”

Gelernt summed up his side’s opposition to SB4 as that under the bill “hired officials have to make big decisions [about how to handle persons who are potentially immigrants], they have no guidance, and they face huge fines.”

He said the law is simply overreaching and too vague.

Texas Attorney General Ken Paxton, who attended Tuesday’s hearing, issued a statement afterward saying he was encouraged by the strong case the state presented. His statement called SB4 “a common-sense measure” that bans sanctuary cities in Texas.

“I am encouraged by the judges’ responses to our arguments that Senate Bill 4 is lawful, constitutional and a public safety issue,” Paxton said. “Sanctuary policies risk the safety of law enforcement officers and the safety of law-abiding Texans by releasing dangerous criminals back onto our streets. I am hopeful the 5th Circuit will side with the rule of law and give our state the right to fully enforce Senate Bill 4 and protect our citizens.”

Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which represents several of the plaintiffs, said after the hearing that there is federal guidance on what local law enforcement can do but that SB4 exceeds that. She called SB4 a “coercive and vague law” and said questioning by the Fifth Circuit panel was “very thorough.”

Greg Casar of the Austin city council said the state’s efforts to crack down on immigration threaten to drain police department resources and represents the government’s “racist intent to take away police resources.”

The judges – Jones and Jerry Smith both appointees of President Ronald Reagan, and Edward Prado, an appointee of George W. Bush –  gave no indication of when or how they might rule on the law.

During a teleconference put on after the hearing by groups opposed to SB4, a woman who identified herself as an undocumented immigrant called it “appalling” that in a time of devastation from last summer’s hurricane and floods “elected officials have used their power to further terrorize families, through separation and racial profiling.”

She said that nevertheless, undocumented immigrants will rebuild Texas’s cities and will make them great again.

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Categories / Civil Rights, Government, Law, National, Politics

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