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"Sanctuary cities" law hearing draws debate on free speech, ICE detainers

It was round two in New Orleans on Tuesday for attorneys for the state of Texas and opponents of the state’s anti-“sanctuary cities” law, Senate Bill 4.

A massive protest engulfs the Capitol Rotunda as anti-SB 4 protesters rally on May 29, 2017, the last day of the 85th legislative session.

NEW ORLEANS — Attorneys for Texas and opponents of the state’s anti-“sanctuary cities” law underwent a 70-minute grilling on Tuesday in federal court.

It was the second showdown in the U.S. 5th Circuit Court of Appeals between the state and those who sued to stop the implementation of Senate Bill 4, which include the cities of Houston, Austin, San Antonio and El Cenizo as well as Maverick and El Paso counties.

The governments filed suit shortly after Gov. Greg Abbott signed the bill in May, after the GOP-controlled Texas Legislature passed what’s considered the toughest state-based immigration law in the country.

Tuesday’s hearing was on whether U.S. District Judge Orlando Garcia's August decision to block several of the law's provisions should stand while the case meanders through the court system.

SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration "detainers" — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000. It also mandates that local entities exchange immigration information they obtain with federal officials.

In late August, Garcia halted several parts of the law, including the provision that requires jail officials to honor all detainers. He also blocked sections that prohibit local entities from pursuing or endorsing “a pattern or practice that 'materially limits' the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary. 

But a separate panel in New Orleans ruled the detainer provision could stand until an ultimate determination is made. The panel also determined that law enforcement officers, including campus police, with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers. That ruling is what’s on the books until a decision on Tuesday’s arguments is reached.

Judge Edith Jones, who was appointed to the post by President Ronald Reagan, asked Texas Solicitor General Scott Keller Tuesday about the “endorsement” provision and whether that section of the law was too far-reaching.

“An elected official, like a sheriff or a county judge, certainly have more latitude to speak [against state policies], don’t they?” she asked.

But Keller said the state has modified several times what the definition of “endorse” means and that it applies to actions officials take in a “governmental capacity” to prevent enforcement of immigration laws.

“It has to be a use of government power to sanction or ratify a policy,” he said. “Let’s say an official were to say they disagreed that with the policies underlying SB 4. That would not be sanctioning or ratifying a [government policy].”

Keller also pushed back against the claim that the language of the law was too vague and didn’t provide enough guidance to law enforcement officials. He said the plaintiffs’ own admissions that current practices would be upended should SB 4 go into effect proved they know what the law does and doesn’t do.

“Here plaintiffs have conceded that various policies that they have would in fact be prohibited by SB 4,” he said. “That concession alone means a facial vagueness claim cannot stand.”

But Lee Gelernt, an attorney with the American Civil Liberties Union representing the city of El Cenizo, a small municipality in Webb County, said the state of Texas keeps changing it’s definition of what constitutes “materially limiting” cooperation, which implies the state knows the language is flawed.

“One of the critical aspects is that Texas has never been able to settle on an interpretation of the law,” he said. “Every time Texas comes to court, they say it’s 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.”

The panel also raised the issue of whether SB 4 was unconstitutional because immigration enforcement is largely under the purview of the federal government. Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which represents several of the plaintiffs, said there is federal guidance on what local law enforcement can do but that SB 4 exceeds that.

“It’s written, it specifies the officers, it provides training, and of course, always federal control and oversight,” she said, referring to the text of the federal government code. “SB 4, through its very heavy penalties, compels local employees to enforce immigration law [without a written agreement].”

On the issue of detainers, Keller said that provision should be allowed to be implemented because the federal government informs state and local governments that they have probable cause to make the request.

“When the federal government is making an express request to state to detain for 48 hours additionally, when the federal government is telling us they have probable cause to believe an alien is removable, local officials can legitimately rely upon that.”

It’s unclear when the panel will issue a decision or even if that will be the final word on the matter. Both sides can ask the United States Supreme Court to consider Garcia’s injunction later.

Texas Attorney General Ken Paxton, who was in the courtroom but did not present arguments, said after the hearing he was confident the panel would side with state lawmakers.

“I am encouraged by the judges’ responses to our arguments that Senate Bill 4 is lawful, constitutional and a public safety issue,” he said in a statement. “Sanctuary policies risk the safety of law enforcement officers and the safety of law-abiding Texans by releasing dangerous criminals back onto our streets.”

Gelernt was also confident and said he felt the judges asked all the necessary questions they needed to make a fair decision.

“It was, as expected, a very thorough examination of the issues, the court was very prepared, as we expected, and asked tough question of both sides,” he said. “We’ll await the ruling and we’ll just have to see how it goes.”

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