State Attorneys: Senate Bill 4 Is ‘Moderate’ Compared to Arizona’s ‘Papers, Please’ Law

Opponents of the law told a federal judge Monday that SB 4 is a "constitutional trainwreck" that will lead to "mass deputization" of local police.


Activists gather outside a federal courthouse in San Antonio to protest the state’s new ban on so-called sanctuary cities.  Kolten Parker

State and federal attorneys on Monday defended Texas’ Senate Bill 4 as a “moderate law” that falls within the legal precedent set by the U.S. Supreme Court’s ruling on Arizona’s notorious “papers, please” law.

U.S. District Judge Orlando Garcia heard about seven hours of oral arguments in San Antonio as lawyers representing several Texas cities asked Garcia to issue a preliminary injunction.

“Senate Bill 4 is a constitutional trainwreck,” said Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund (MALDEF).

The “sanctuary cities” law, set to take effect September 1, would fine any local official who “adopts, enforces, or endorses a policy” that “prohibits or materially limits the enforcement of immigration laws.” It would also jail sheriffs and other law enforcement leaders who refuse to honor immigration detainers. SB 4 also allows police officers to inquire about a person’s immigration status during a legal detention, such as a traffic stop.

The plaintiffs’ arguments centered on the First, Fourth and 14th amendments.

Prohibiting public employees — or elected officials — from voicing their critical opinion regarding SB 4 is “viewpoint discrimination” that violates the First Amendment, said Perales, adding that the word “endorse” is too broad.

The state argued that the language should be taken in the context of the law and not interpreted as its literal definition. Darren McCarty, a lawyer with the Texas Attorney General’s Office, said SB 4’s “purpose is to avoid a patchwork of immigration laws.”

Bexar County Judge Nelson Wolff said the provision causes a “chilling effect for what I can say” as an elected official.

Wolff pointed out that Bexar County is home to more than 70,000 undocumented immigrants, and argued that SB 4 is going to lead to racial discrimination and a “world of confusion.”

“I am Anglo. You think they’re gonna stop me? Nuh-uh!” Wolff testified.

The state argued that racial discrimination is already illegal in state law, and specifically prohibited in the so-called sanctuary cities ban.

Andrea (left) and Lizbeth (right) stand with several lawmakers, activists and law enforcement officials who oppose SB 4.  Sam DeGrave

Senator Jose Rodriguez, an El Paso Democrat who was in the courtroom for the hearing’s entirety, told the Observer that the law is “racist” and will lead to “anti-Latino” discrimination.

State attorneys repeatedly pointed to Arizona’s Senate Bill 1070, the controversial anti-immigrant law that was partially struck down by the U.S. Supreme Court in 2012, as proof that some provisions in SB 4 are constitutional.

“[SB 4] does exactly what Arizona v. U.S. says it can do,” said McCarty, adding that Arizona’s SB 1070 “is a far more aggressive law.”

Lee Gelernt, an attorney with the ACLU representing the plaintiffs, disagreed.  

“We don’t think it’s close because the law was very different,” Gelernt told the Observer after the hearing. “That is an essential part of their argument, that the courts have already dealt with this in Arizona.”

Gelernt said that the “papers, please” provision of SB 1070 was ultimately upheld by the Supreme Court, but that it is substantially different from SB 4. For example, the Arizona law required officers to inquire about immigration status when a reasonable suspicion existed that the person is in the country without documentation.

Texas’ law allows, but doesn’t require, police officers to inquire about immigration status during any legal detention, which doesn’t require reasonable suspicion. Texas’ law makes an exception for a victim of a crime or a person who is reporting a crime.

Gelernt said the Arizona law levied fines on agencies, while the Texas law levies fines against individual public officials.

The judge asked both parties what an officer inquiring about someone’s immigration status should do if the person is undocumented. Neither the state nor the plaintiffs had a direct answer, as the law does not address that part of the process. The state said the bill “doesn’t allow for arrest” of someone who does not have proof of citizenship by local police.

Opponents said that was further proof that the law invites constitutional violations and would create “mass deputization” of local police.

Perales said the state’s attorneys were defending the law by “ignoring, dismissing or reading away” certain provisions. She said the law is written so broadly that non-law enforcement public employees could be subject to violations under SB 4.

Garcia told the court at closing that he would review the evidence but wasn’t sure when a ruling could be expected. There is a major redistricting case in his court in July that may push back a decision, he said.