Officer Loses Bid to Check Immigration Status

     HOUSTON (CN) – Houston Police Department policies barring officers from checking a person’s immigration status do not violate the constitutional rights of a sergeant whose husband was shot and killed in 2006 by an illegal immigrant, a federal judge ruled.
     U.S. District Judge David Hittner dismissed Sgt. Joslyn M. Johnson’s lawsuit against the city of Houston, the Houston Police Department and then-acting Police Chief Harold Hurtt.
     While most lawsuits over municipal immigration policies challenge so-called “papers, please” provisions, Johnson argued that her department’s hands-off policies violated her free speech right to communicate with government agencies and hindered her from carrying out her responsibilities as a law enforcement officer.
     Her husband, Officer Rodney Johnson, was shot and killed by an illegal immigrant during a routine traffic stop in 2006.
     She claimed the department’s policies prevented her and other officers from checking with the U.S. Immigration and Customs Enforcement about the immigration status of people they stopped.
     The department’s policies state: “Undocumented aliens status is not, in itself, a matter for local police action. Unlawful entry into the United States is not to be treated as an on-going offense occurring in the presence of a local police officer. Houston police officers may not stop or apprehend individuals solely on the belief that they are in this country illegally.
     “Officers shall not make inquiries as to the citizenship status of any person, nor will officers detain or arrest persons solely on the belief that they are in this country illegally,” the policies state. “Officers will contact [ICE] regarding a person only if that person is arrested on a separate criminal charge (other than a class C misdemeanor) and the officer knows the prisoner is an illegal alien.”
     Johnson claimed that, under these policies, officers could only check the “wanted” status of detainees in the National Crime Information Center database, and could only contact ICE if the check resulted in an immigration hit indicating the detainee had an outstanding ICE-issued warrant.
     Johnson said she does not seek to detain or arrest people simply to check their immigration status, but would like to use her professional judgment to decide when to contact ICE about a person’s immigration status if she has reason to believe a crime may have been committed.
     In his 44-page ruling, Hittner agreed with the city’s claim that Johnson’s contact with ICE would fall under her official duties as a police officer and is not protected by the First Amendment.
     “In the present case, plaintiff’s allegations are replete with references to her professional judgment, her duties and responsibilities as a law enforcement officer, her oath to faithfully execute such duties and responsibilities, and her ability to contact ICE in her capacity as a law enforcement officer while ‘out on the street,’ during the course of carrying out her daily duties, and during legal detentions of those she lawfully encounters,” Hittner wrote.
     “Thus, by plaintiff’s own pleadings, it is clear that her desired communications with ICE would necessarily owe their existence to her professional responsibilities as a law enforcement officer and that they would be made in the course of performing her official duties as a law enforcement officer.”
     Hittner also disagreed with Johnson’s claim that the policies violated her right to inform federal officials of violations of federal law. He said she does not have the right as a law enforcement officer to conduct investigations of people she merely suspects of being in the country illegally.
     “Plaintiff’s inherent right as a U.S. citizen to report federal law violations does not extend to an inherent right for plaintiff to use her capacity and professional judgment as a law enforcement officer to conduct investigations and ferret out whether individuals she encounters are illegal aliens,” Hittner wrote.
     “Therefore, to the extent Plaintiff alleges the city’s policies infringe upon her inherent right to report violations of federal law, her pleadings fail to state a claim because the polices do not restrict such reporting.”

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