Civil Rights Groups, Fearing Racial Profiling, Sue Texas Over SB 4

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And so it begins: Civil rights groups and local government leaders have sued Governor Greg Abbott and the great state of Texas over the so-called “show me your papers” bill, Senate Bill 4.

Alongside El Paso County and its sheriff, Richard Wiles, the Texas Civil Rights Project filed the federal lawsuit on behalf of the Texas Organizing Project Education Fund, alleging that SB 4 is a discriminatory, unconstitutionally vague bill that encourages racial profiling and violates protections against unlawful search and seizure. The plaintiffs have also named Attorney General Ken Paxton and Texas Department of Public Safety Director Steve McCraw as defendants.

“For over a quarter-century, TCRP has successfully challenged discriminatory laws targeting immigrant communities in Texas. SB4 is no different,” Efrén C. Olivares, the racial and economic justice director with the Texas Civil Rights Project, said in a statement. “All Texans, regardless of their immigration status, deserve to live free of harassment and discrimination. The ‘show me your papers’ law targets communities that have been attacked by both the state and federal governments already, further upending the lives of immigrant families throughout Texas.”

Slated to go into effect in September, SB 4 prohibits law enforcement agencies from adopting any policy that “discourages” officers from asking people about their immigration status. Police can ask about immigration status not just during an arrest, but while detaining someone for any purpose. The law also requires all sheriffs and police chiefs to honor ICE detainers, which are requests that suspected undocumented immigrants be held in the county jail until federal agents can pick them up. Should police leaders fail to “enforce immigration law,” they can be removed from office and charged with a crime; their jurisdictions can also face a steep civil fine. As the plaintiffs argue, “immigration law” is too vague for such a high price to be paid. The law even says police can’t “endorse” policies that conflict with SB 4, which seems to indicate that even just voicing a dissenting opinion publicly can cause police to lose their badge. Plaintiffs argue this chills First Amendment rights.

The real crux of the lawsuit, though, is its focus on how SB 4 could invite racial profiling, therefore violating the equal protection clause of the Constitution.

TCRP pulled no punches in introducing SB 4, saying that “SB 4 invites racial profiling, permitting officers to demand ‘papers’ from virtually any person in Texas at any time. History and logic supports that all Texans will not be equally subject to this harassment: Texans of Hispanic heritage and immigrants and their families, particularly those from Mexico, Central America and other Spanish-speaking countries, will be targeted.”

“We’ve joined this lawsuit because SB4 would be destructive and hurtful, not only to the people of color who will be subject to increased racial profiling, but to the state’s economy and safety,” said Michelle Tremillo, executive director of the Texas Organizing Project. “It seems everyone in this state, except the white men who voted for SB4, is aware that nothing good will come from this law.”

In El Paso, more than 82 percent of residents are Hispanic, according to the lawsuit. As police leaders from El Paso, Houston, Austin, San Antonio, Dallas and Arlington have made clear to lawmakers, they believe that SB 4 actually poses a public safety threat given that it will erode trust between police and immigrant communities, possibly causing them to fear reporting crimes and cooperating with police as witnesses. (Houston Police Chief Art Acevedo, in fact, railed against the law during an impassioned speech last month.)

“It is insulting to the people and leaders of El Paso that the Texas Legislature continues to erode the policy decision-making and sovereignty of local communities based on irrational, unfounded ‘fears’ of immigrants,” TCRP wrote in the lawsuit. Taking away local police leaders’ ability to create their own policies related to immigration, TCRP also argues SB 4 violates separation of powers.

Last week, city leaders from all of those cities announced their support for litigation, indicating that they would be launching a coordinated protest against SB 4 through lawsuits and organized action this summer.

Like every highly controversial piece of legislation that comes out of the Texas Lege, be it voting rights restrictions, reproductive rights restrictions or LGBT rights restrictions, the legal battles are bound to extend for months or years.

This time, in fact, Paxton was, oddly, the first to take legal action regarding SB 4, asking a federal court to declare the law constitutional so that advocacy groups would have to settle down. Apparently, that hasn’t slowed them down.

This story originally appeared 5/23/2017 in the Houston Press.

El Paso County files lawsuit seeking to halt Texas “sanctuary” law

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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.”

“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.

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.

This story originally appeared 5/22/2017 in the Texas Tribune.

County files suit over SB 4’s constitutionality

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El Paso County on Monday filed a federal lawsuit against the state of Texas in an attempt to block the implementation of Senate Bill 4, the so-called “sanctuary cities” or “show me your papers” legislation.

The 29-page lawsuit, filed in the U.S. District Court for the Western District of Texas in San Antonio, alleges SB 4 is a discriminatory law that impedes public safety.

In the lawsuit, El Paso County seeks to enjoin and declare SB 4 unconstitutional and to recover court costs and attorney’s fees.

The San Antonio-based law firm Garza Golando and Moran PLLC filed the lawsuit Monday afternoon on behalf of El Paso County, El Paso County Sheriff Richard Wiles and the Texas Organizing Project Education Fund, with the assistance of the Texas Civil Rights Project.

The civil lawsuit was filed against the state of Texas, Texas Gov. Greg Abbott, Texas Attorney General Ken Paxton and Texas Department of Public Safety Director Steve McCraw.

“This law is just another version of a continuing attack on the immigrant community from Austin,” Jose Garza, the county’s lead attorney, said at a news conference Monday afternoon at the El Paso County Courthouse. “This particular bill is even more egregious because it has the potential effect of undermining public safety and undermining the authority of local jurisdictions to set policies for their own communities.”

El Paso County Sheriff’s Office Cmdr. Robert Flores, who spoke on behalf of Wiles during the news conference, said SB 4 does not make the community safer by forcing local law enforcement to act as immigration officials.

“We believe that this is totally contrary to any community policing philosophy, and our relationship with our community has been a big part of our organization for many, many years,” Flores said. “This bill is going to prevent people from coming forward and report crimes, and we feel that is going to be unsafe for our community.”

Abbott and supporters in the Republican-dominated Legislature argue that the law is necessary to keep Texas communities safe.

“Texans expect us to keep them safe, and that is exactly what we are going to do by me signing this law,” Abbott said on Facebook Live before signing the bill into law May 7.

Garza said local officials are in the best position to know how best to police their communities and keep them safe. He said SB 4 takes policy decisions out of the hands of local officials.

“This law seeks to federalize local enforcement of immigration laws, something that’s exclusively reserved to the federal government. It’s unconstitutional,” Garza added.

Garza said SB 4 was adopted with a discriminatory intent. He said SB 4 is similar to Texas legislation dealing with voter participation, the voter ID law and redistricting laws that have been found to discriminate against Hispanics.

“El Paso County is over 800,000 people — more than 82 percent Hispanic. More than 25 percent of the population of El Paso is foreign born. This is the population that is targeted by SB 4,” Garza said.
El Paso County is a unique plaintiff in the fight against SB 4 as it has adopted policies that might violate the enacted bill, the lawsuit states.

Under SB 4, El Paso County would violate a 2006 federal court settlement in which it agreed to bar sheriff’s deputies from enforcing immigration law. That came after complaints that deputies were conducting checkpoints, including stopping a public bus, in an attempt to snare undocumented immigrants.

SB 4, which is set to go into effect Sep. 1, requires local police to cooperate with federal immigration agents and allows them to ask people they’ve detained for immigration documents. Under SB 4, local governments will not be able to instruct or create policies to prevent their police officers from asking people about their immigration status.

Carl Starr, the plaintiff in the 2006 lawsuit against El Paso County, has said he would sue again if sheriff’s deputies begin asking detainees about their immigration status.

The law places severe penalties on local officials and governments if the attorney general decides that they are not complying with the provisions of SB 4, Garza said.

Because of the uniqueness of the claims, El Paso County has filed its own case and did not join the League of United Latin American Citizens in its lawsuit.

LULAC and the small border community of El Cenizo, Texas, filed a lawsuit against the state over the sanctuary cities ban May 9.

El Paso County filed its lawsuit in the same court as LULAC’s to make sure that the judge assigned to hear LULAC’s case hears the county’s case as well, Garza said.

He anticipates other lawsuits will be filed in the near future either in San Antonio or across the state, he said.

“There is a possibility that the first order of business for the federal court is to determine where these issues will be litigated,” he said. Garza said he expects a consolidation of all the cases filed against SB 4.

Brooke Bischoff, an attorney with the Texas Civil Rights Project in El Paso who represents the Texas Organizing Project Education Fund, said the fund is joining the county’s lawsuit against the state because SB 4 would be a “huge” imposition on its work to improve the lives of low- and moderate-income Texans through community organizing and civic engagement.

“They would no longer have the ability to do this important job with the same capacity because SB 4 directly targets both the employees of TOPEF, TOPEF as an organization and the clients that TOPEF represents, which include Latino noncitizens and citizens,” Bischoff said. “The implementation of what is essentially a ‘show me your papers’ law would undoubtedly lead to racial profiling just as SB 1070 did in Arizona.”

This story originally appeared 5/22/2017 in USA TODAY.