Governor Abbott's Charged Language After Federal Judge Blocks SB4

The Texas Organizing Project is among the many plaintiffs suing the state over SB4.
The Texas Organizing Project is among the many plaintiffs suing the state over SB4. Photo by Meagan Flynn
Just before the state's controversial "anti-sancutary city" law Senate Bill 4 was set to go into effect, a federal judge has blocked the state from enforcing almost all provisions of the law.

U.S. District Judge Orlando Garcia has found SB4—which would prohibit local law enforcement from adopting policies limiting immigration enforcement and allowing them to question people's immigration status while detaining them for any reason—illegally pre-empts federal immigration law.  He found that it violates the First Amendment's protection of free speech, since elected officials can be removed from office or even jailed if they go against SB4 in any way.

Garcia found that SB4 is vague and overbroad, creating a "real danger of arbitrary and discriminatory enforcement; and finally, that it violates the Fourth Amendment's due process protections, since it requires law enforcement to detain suspected immigrants without sufficient probable cause.

“We are so grateful to have courts who protect our rights and freedoms, and keep overzealous legislators in check," said Michelle Tremillo, executive director of the Texas Organizing Education Fund, one of the plaintiffs. "SB4 would have encouraged and legalized racial profiling of Latinos and other communities of color."

Garcia granted a preliminary injunction against the law, saying the plaintiffs have shown immense likelihood that they'll be irreparably harmed, and that protecting their constitutional rights trumps the state's desire to implement SB4.

The plaintiffs, which also include the city of Houston and five other most populous cities in Texas, have repeatedly argued that immigrants already are afraid to report crimes for fears of being interrogated — fears that have only grown worse with the prospect of SB4. During Harvey, city officials stated several times that if undocumented people called 911 for rescues they would not be asked for papers.

But Governor Greg Abbott, saying Garcia's decision will be appealed "immediately," had a different idea about who would be harmed most substantially.

He said: “Today’s decision makes Texas’ communities less safe. Because of this ruling, gang members and dangerous criminals, like those who have been released by the Travis County Sheriff, will be set free to prey upon our communities."

Abbott's statement seems to suggest that Judge Garcia is opening the prison gates and unleashing the state's most violent people onto the streets. That is part of the narrative the governor has pushed all along, that SB4 will somehow stop people from committing violent crimes, suggesting that illegal aliens are the perpetrators of violent crime plaguing the state.

The governor can surely cherry-pick examples to support this idea—namely, the MS-13 gang, whose recently arrested members in Harris County, accused of horrific murders, have in fact been undocumented immigrants from El Salvador. However, as the plaintiffs have argued: There is nothing about SB4 that would stop the state and the feds from arresting, convicting, and ultimately deporting people who, for example, kill or rape someone. Harris County, for example, already honors immigration detainers issued by U.S. Immigration and Customs Enforcement—even if the person is only charged with a low-level misdemeanor (Travis County's sheriff, however, does not honor ICE detainers for low-level offenses; only murders and rapes and human smuggling—which is why Abbott has been in a protracted feud with her).

So let's take a look, then, at why, politics aside, Judge Garcia has found the plaintiffs are likely to show that SB4 is unconstitutional.

SB4 violates freedom of speech and is overly vague. Under the law, any police officer, elected official or city or county employee who creates a policy limiting officers' ability to ask about immigration status or limit their cooperation with immigration officials can be removed from office and charged with a crime. Here's what's so controversial: Even endorsing policies that go against SB4 would qualify as being subject to punishment. So what does "endorse" means? The court found it means even saying something in a public or private setting that goes against SB4.

Garcia cites Senator Charles Perry's own 1984-esque words as the author of the bill, who says in a public hearing what "endorse" means in Texas: "It's a, it's a, it's a more deliberate term that says we are going to endorse, enforce, support, identify with, and it is, it becomes part of our DNA, or culture to endorse that, that we believe enough in it to put our name on it." Apart of our DNA to love and enforce SB4? Perry then said if a police chief wrote an editorial opposing SB4 he could be removed from office and arrested. Here's Garcia:

"Despite the vagueness and overbreadth of the endorsement prohibition, SB 4 makes one thing quite clear—one viewpoint on local immigration policy is banned and the opposite viewpoint is permitted. A person who "endorses" a policy that prohibits or materially limits the enforcement of immigration laws cannot express his/her ideas, thoughts, views and beliefs without the real threat of punishment....This is the epitome of viewpoint discrimination."

SB4 pre-empts federal immigration law. As the plaintiffs have argued, local law enforcement officers are tasked with stopping crime, not enforcing civil immigration laws such as simply being in the country illegally; that is the federal government's authority. When local police want to do the feds a solid and help out with that, they can only do so under "limited circumstances," Garcia noted, such as through the 287(g) program. By requiring police departments to pick up duties of immigration officers without allowing police chiefs and sheriffs to make rules to ensure their officers don't accidentally violate the constitution while enforcing SB4, the state goes beyond the limited circumstances. Here's Garcia:

"Authority to regulate immigration enforcement rests with the Federal Government. Texas cannot—through state law—expand the 'limited circumstances' in which local enforcement officials may perform the functions of immigraiton officers....Federal immigration law involves significant complexities, one of which is the determination of removability. For this reason, Congress has required that enforcement cooperation agreements contains written certification that officers have received adequate training to carry out the duties of immigration officers." Which is something SB4 does not require.

SB4 violates due process protections. The plaintiffs argued that requiring local law enforcement to honor immigration detainers—allowing them to hold suspected undocumented people for up to 48 hours, even if they're not charged with a crime, so ICE can get them—violates due process. Under current federal law, such immigration detainers are only voluntary. But under SB4, they're not, and further, police aren't even permitted to question whether ICE has probable cause to be detaining the suspected undocumented person; it's to be assumed. That's a problem, Garcia says.

Since local officials are not authorized or trained to assess probable cause of removability, they are not capable of making a particularized assessment of probable cause of removability in light of the information available to them at the time of seizure. Despite this, the detainer compliance provisions of SB 4 require them to detain the subject of the federal detainer request for up to 48 hours. The court agrees with Plaintiffs that these provisions likely violate the Fourth Amendment."

Expect Texas to fight this case all the way to the Supreme Court.

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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn