The county of El Paso and other organizations on Monday filed a lawsuit against Gov. Greg Abbott, Attorney General Ken Paxton and Texas Department of Public Safety Director Steve McCraw seeking a federal court ruling declaring the state’s new immigration law unconstitutional.

Senate Bill 4 allows peace officers to question the immigration status of people they legally detain or arrest and punishes department heads and elected officials who don’t cooperate with federal immigration agents by turning over immigrants subject to possible deportation. Elected or appointed officials found in violation could face criminal charges in the form of a class A misdemeanor and possible removal from office. Abbott signed the bill May 7, and it is scheduled to go into effect Sept. 1.

The lawsuit, filed by El Paso County, its Sheriff Richard Wiles and the Texas Organizing Project Education Fund, a client of the Texas Civil Rights Project, charges that the law, if enacted, would violate several provisions of the U.S. Constitution, including the 14th Amendment’s guarantee of the equal protection of laws; the 14th Amendment’s due process clause; and the Fourth Amendment protection against unreasonable searches and seizures.

The plaintiffs also allege the bill would violate the U.S. Supremacy Clause, which states that federal law — including statutes dealing with immigration enforcement — is “wholly dedicated to the federal government and may not be usurped by the states.”

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“All law enforcement agencies and jurisdictions that opt to stay out of immigration enforcement face stringent civil liability,” the lawsuit charges. “And, persons in Texas, particularly Mexican-Americans, those of Hispanic descent, and immigrants and their families, will be caught in the crossfire.”

The lawsuit, filed in San Antonio, which is part of the Western District of Texas’ federal judicial district, comes after the City of El Cenizo and Maverick County filed suit against the state earlier this month. The city of Austin also voted last week to file a suit to stop the controversial measure, which Abbott and other Republicans have argued is needed to ensure Texans are safe from non-deported criminal immigrants who aren’t turned over to Immigration and Customs Enforcement agents.

El Paso County is in a unique situation, however, because it agreed in 2006 to a court settlement after a local resident sued, accusing sheriff's deputies of conducting unlawful immigration checks at roadside checkpoints. The parties reached an agreement: The sheriff’s office had to “memorialize in writing its policies that prohibits Sheriff's Department Deputies from enforcing civil immigration law.”

“El Paso also has adopted policies, which may violate SB 4’s unconstitutional mandates,” the complaint reads. “Specifically, the El Paso County Attorney’s office has adopted a policy that prohibits its investigators from making inquiries into the citizenship or residency status for the purpose of determining whether an individual has violated civil immigration law or for the purpose of enforcing those laws.”

Gov. Greg Abbott has recently argued that the fear being spread throughout the state concerning the potential for racial profiling is unwarranted. He said critics who call the legislation a “show me your papers” bill are misinformed because he said SB4 only targets immigrants who are suspected of a committing a crime.

“Here is the truth: Regardless of your immigration status, if you have not committed a crime and you are not subject to an Immigration and Customs Enforcement detainer, you have nothing to fear about the change in Texas law,” Abbott said in an op-ed published by the San Antonio Express-News, which he wrote with J.E. “Eddie” Guerra, the Hidalgo County sheriff, and Victor Rodriguez, the city of McAllen police chief.

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But critics note that bill author state Sen. Charles Perry, R-Lubbock, said during the floor debate that “lawful detention” could mean something as minor as a traffic violation. And though the bill prevents officers from questioning the immigration status of most victims or witnesses to crimes, it allows them to ask the question if they feel it's necessary to further the investigation. It’s that broad spectrum that opponents of the measure argue opens the door to legalized racial profiling.

The list of lawsuits filed against the state could still grow. Last week, the Austin City Council voted to go to court, and a representative from San Antonio said during a rally at the state Capitol that San Antonio stands “shoulder to shoulder” with other cities who have taken up the fight.

Read related Tribune coverage

  • Leaders from El Paso County and the cities of Dallas and Austin plan to move forward with resolutions or litigation against Senate Bill 4, the state's controversial immigration law, as soon as this week, according to local officials.
  • A 2006 settlement between an El Paso County resident and his local sheriff's department could come back and haunt the border town if local officials try to enforce the state's new "sanctuary cities" bill.
  • Gov. Greg Abbott said Tuesday that Senate Bill 4 would not lead to racial profiling or people being "detained inappropriately." 

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