Why Immigration Attorneys Believe the Anti-Sanctuary Cities Bill Is Unconstitutional

United We Dream rallied outside the Harris County Sheriff's Office to ask former Sheriff Ron Hickman to stop facilitating deportations by cooperating with ICE.
United We Dream rallied outside the Harris County Sheriff's Office to ask former Sheriff Ron Hickman to stop facilitating deportations by cooperating with ICE. Gilbert Bernal
Last week, hundreds of people flocked to the Texas Capitol to testify or protest against SB4, the anti-sanctuary cities legislation. There were children of undocumented parents, who told of growing up living in the shadows. There were police chiefs and sheriffs who believed the law would impede their ability to build trust with minority communities and even solve crimes.

And there were immigration attorneys, who warned lawmakers that the anti-sanctuary cities bill violated the Constitution.

The Texas Senate gave the bill, authored by Senator Charles Perry (R-San Angelo), preliminary approval Tuesday night, with a 20-11 vote along party lines. But legal concerns about the bill are bound to continue as the bill makes its way over to the House.

The immigration attorneys' testimony against the bill had raised enough concern among lawmakers that Texas Attorney General Ken Paxton addressed their arguments in a letter to the Senate Committee on State Affairs on Tuesday, just as the Senate floor was gearing up for yet another hours-long debate about the bill. He assured the Senate not to worry: They were voting on a perfectly legal, constitutional bill — but that opinion clashes with that of other immigration law experts.

As four immigration attorneys wrote to Senator Joan Huffman, chairwoman of the Senate Committee on State Affairs: "[Paxton's] legal reasoning is flawed and should be rejected."

So here's why SB4 is controversial in the first place: Under the threat of punishment, the bill would require every local jurisdiction to honor requests from federal immigration officials to detain anyone suspected of being an undocumented immigrant (many counties already do this). It would allow street patrol officers to ask questions about someone's immigration status during an arrest and then share that information with U.S. Immigration and Customs and Enforcement, which may then place a detainer on that person (many law enforcement agencies do not do this. The Houston Police Department prohibits it). And it would strip state grant money from any law-enforcement agency that does not fully comply with all of the above — even though immigration detainers are, under the law, optional requests from ICE.

Here's why some immigration attorneys are concerned about the legality of all this: ICE can ask (remember: just ask) sheriffs to detain people in the jail even after a judge has cleared them for release, whether on bail, after charges against them have been dismissed or after their case has been adjudicated. But merely existing in the country as an undocumented immigrant is not in and of itself a crime — it is a civil offense. And that's why attorneys say — and the U.S. Supreme Court and federal courts have ruled — that being undocumented does not qualify as probable cause to keep someone in jail under the Fourth Amendment, especially when judges have cleared people for release.

"SB4 has provisions that say probable cause [for ICE's immigration detainers] should be 'presumed.' But probable cause of what?" said immigration attorney Lance Curtright. "The problem is most immigration detainers are referring to civil offenses."

Curtright pointed to a January 17 opinion by a Dallas federal judge, in a lawsuit in which more than a dozen undocumented immigrants sued Dallas County for continuing to detain them at ICE's request, even after they posted bond or were otherwise cleared for release. While the case is still ongoing, U.S. District Judge Sidney A. Fitzwater denied the county's motion to dismiss the case last month, concluding the plaintiffs' allegations raise plausible Fourth Amendment violations.

Paxton wrote this off by citing a different U.S. Supreme Court case, which gave ICE the authority to detain undocumented immigrants during a 90-day period in which their deportation is pending. But as Curtright and three fellow attorneys noted in their letter to Senator Huffman, this case has nothing to do with ICE detainers placed on people in the custody of local law enforcement agencies.

"The Supreme Court’s decision in Zadvydas does not authorize Texas law enforcement agencies to detain non-citizens for potential immigration offenses," the attorneys wrote, referring to the case.. "Zadvvdas is entirely inapposite to the issue altogether."

Curtright said state lawmakers' claims that SB4 is intended to make Texas safer ignores these legal arguments that he sees as obvious impediments to the law's passage. State GOP leaders have repeatedly argued that if law enforcement does not detain undocumented immigrants for ICE, then public safety is at risk.

Travis County Sheriff Sally Hernandez became the first sheriff to expressly say she would not honor ICE detainers unless the feds had a court order or warrant (or unless the person was charged with capital murder, aggravated sexual assault, or continuous human smuggling) — and she found herself on the receiving end of the fiery wrath of Governor Greg Abbott. He said Hernandez was "playing political Russian roulette — with the lives of Texans at stake." The state has since rescinded $1.5 million in criminal justice grants from Travis County — but a GoFundMe has already been launched to help the county get back the money.

"[GOP lawmakers] are trying to use scare tactics to get people to ignore the Constitution," Curtright said. "Undoubtedly, there's probably some cases  [Abbott] can cite. That doesn't mean that's the norm — but even if it were, you can't just swallow the Constitution and the Fourth Amendment. The Constitution is there to protect us, and if you start passing laws which violate it, then everyone else is going to have less freedom and less protection."

Police chiefs and sheriffs from Texas's largest counties have already come out against the bill, including Houston Police Chief Art Acevedo and Harris County Sheriff Ed Gonzalez, who each submitted letters to the Senate Committee on State Affairs.

Acevedo noted that the law asks already-strapped local departments to do more to investigate or detain undocumented immigrants — yet instead of providing more funding, threatens to take it away. In addition, he asked senators to consider the distrust that a bill allowing police to ask intimidating questions about immigration status would create within immigrant communities.

"Broad mandates for local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and the diverse communities they serve," he wrote. "This will lead to less cooperation from members of the community and foster the belief that they cannot seek assistance from police for fear of being subjected to an immigration status investigation."

Citing Acevedo's letter during the Senate hearing on Tuesday, Senator John Whitmire (D-Houston) asked senators, "Once again, who do we listen to? Police chiefs of our major cities? Or opinions on the Senate floor?"
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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