Federal Judge Hears Arguments in Suit Against SB 4

As protesters chanted outside and reporters struggled with security to get inside San Antonio’s tight federal courtroom Monday, U.S. District Judge Orlando Garcia heard arguments for a preliminary injunction aimed at blocking Senate Bill 4, the “sanctuary cities” law slated to go into effect Sept. 1.

The Mexican American Legal Defense and Educational Fund (MALDEF) is representing The City of San Antonio in the suit. Other plaintiffs include Bexar County, El Paso County and the cities of Houston, Dallas, and Austin. They are seeking a preliminary injunction to stop the law from going into effect while the court case challenging its constitutionality proceeds.

The State’s SB 4 punishes local officials who don’t cooperate with federal immigration authorities and allows local law enforcement officials to question the immigration status of anyone they detain or arrest. Gov. Greg Abbott has argued that SB 4 was created to promote public safety, but attorneys for the plaintiffs Monday said that the law would do the opposite, creating fear among undocumented immigrants and deterring them from reporting crime. In addition, plaintiffs argued that the law would negatively impact the state economically and unfairly targets Latinos.

“El Paso County strongly believes in community policing,” El Paso County Attorney Jo Anne Bernal said. “We can’t effectively protect citizens if local law enforcement makes the immigrant community reluctant to come forward. This [creates] a less safe community.”

Bernal added that around 50% of women seeking protective orders in El Paso are undocumented or don’t have sufficient documentation. In February, Immigration and Customs Enforcement officials entered a courtroom designated for victims of domestic violence and detained a woman seeking a protective order. Affidavits filed in the lawsuit claim many women rescinded their protective orders after learning of the incident.

“Bills [like SB 4] will have a chilling [effect on] victims coming into the courthouse,” she said. “It will frighten people away from participating in the criminal justice system.”

Lawyers for the state and the U.S. Department of Justice argued that what they called the “moderate law” does not require  police officers to request immigration papers, but rather establishes a standard of cooperation with immigration officers. Arizona’s SB 1070, also known as the “show me your papers” law, they added, is an example of more aggressive legislation, which had specific requirements for officials.

State Rep. Ana Hernandez (D-143) wept on the witness stand as she described her experience when the bill was discussed on the House floor. Hernandez and other attorneys said the emotionally charged debate included negative stereotypes about Latinos, racial insults, and other evidence that prove there was a strong racial element to the enactment of SB 4.

“There is no racial focus in SB 4 – it doesn’t create or define a group,” said Brantley D. Starr, the State’s deputy first assistant attorney general. “The only mention of race in SB 4 is to prohibit racial discrimination.”

Attorney Mike Siegel, representing the City of Austin, said that Texas’ economy, tourism, and diplomatic relations will suffer from the implementation of SB 4, adding that it could motivate organizations or conventions to host conventions or events in other states.

Erez Reuveni, senior litigation counsel for the Justice Department, testified that Texas law does not conflict with federal immigration law. Reuevni said SB 4 was “perfectly legitimate.”

“The federal government invites states to participate in immigration enforcement and Texas has accepted that challenge,” Reuveni said. Economic impacts and tourism, the State’s attorneys added, have nothing to do with the constitutionality of SB 4.

Lee Gelernt, a lawyer for the American Civil Liberties Union (ACLU) arguing on behalf of the City of El Cenizo, said SB 4’s “vague and convoluted” nature would blur the lines of what is referred to as “a legal detention,” refuting the State’s claim that the law is “modest” in nature.

The judge asked several questions regarding the implementation of the law, including what would happen if a police officer pulls over a driver for speeding with other passengers in the vehicle.

“Would that officer be permitted to make inquiry of passengers in addition to the driver?” Garcia asked. Gelernt answered that SB 4 provides “blanket authority” to officers and would create unimaginable chaos.

“SB 4 is unclear … it opens up the door,” Gelernt said. “Unguided and unsupervised, officers will take it upon themselves to decide how far they are inquiring.”

Nina Perales, MALDEF’s vice president of litigation, said the “Draconian law” is a “constitutional train wreck,” as it violates the First Amendment.

“SB 4 imposes heavy fines and penalty of removal from elected office for elected officials that want to endorse different policies than what is currently occurring,” she said, adding that the definition of the word “endorse” directly correlates to stating a position or viewpoint. “SB 4 can punish local entities like officers and elected officials, but the term may also encompass other employees of local entities such as a professor or trustee from a community college such as Alamo Colleges.”

Councilman Rey Saldaña (D4) testified that SB 4’s implementation would restrict him from “using my voice for the community I represent,” which includes a high percentage of Hispanic people (more than 80%) and individuals from families composed of people with varied immigration status.

“The largest portion of the city budget – 66 % – [traditionally] goes to public safety,” Saldaña added. “Police officers are stretched thin already when they respond to domestic abuse and other crimes. It would make their jobs harder and break the bridge established in the community.”

Bexar County Judge Nelson Wolff testified that the Bexar County Jail has always recognized detainers, which are formal requests from federal immigration authorities for a local jail to hold non-citizen inmates. SB 4 makes refusing to cooperate with detainer requests a criminal offense.

“It’s considerably expensive to do that,” Wolff said. “We’ve spent $22 to $23 million over the last 11 years with respect to detainers. We have requested reimbursement and not gotten it. Taxpayers pay the cost, so I hope they’re paying attention to this lawsuit because it’ll come right out of their pockets.”

Garcia did not issue a ruling Monday.

“I don’t know when a decision will be issued, but the court will review the law extensively,” he said.