After ruling on Texas' "sanctuary cities" law, opponents say they're down but not out

After opponents of Texas’ immigration-enforcement law were delivered what they said was a “punch to the gut” by a federal appellate court, they stressed Wednesday that they weren’t completely out of the fight.

A panel of three 5th U.S. Circuit Court of Appeals judges ruled Tuesday that most of Senate Bill 4 can remain in effect while the case plays out. That came after it was partially blocked by U.S. District Judge Orlando Garcia in San Antonio last summer.

Attorneys and immigrants' rights groups who fought against SB 4 said their next move isn’t clear but that they're considering seeking a hearing before the entire 5th Circuit.

“There are a lot of parties [involved], so we are coordinating on this,” Efrén Olivares, the racial and economic justice director for the Texas Civil Rights Project, told reporters during a conference call. “But procedurally, the next step would be to request an en banc hearing.” There is also the possibility of asking the U.S. Supreme Court, he said.

The plaintiffs' attorneys admitted Wednesday that they were not surprised at the ruling due to the 5th Circuit’s conservative leanings, so it’s unclear how much faith they will have in pleading their case before the entire court. But, they said, there remains the option to show that in its implementation, SB 4 leads to several constitutional violations.

The legislation prohibits law enforcement supervisors from preventing their local law enforcement officers from questioning the immigration status of people they detain or arrest. It also punishes local government department heads and elected officials who don’t cooperate with federal immigration "detainers" — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000, and it prohibits local entities from pursuing “a pattern or practice that 'materially limits' the enforcement of immigration laws” or prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.

Olivares said that while the next step in the appeals process is being considered, the lawyers and their supporters will also prepare for the case to head back to San Antonio. Tuesday’s ruling was only on the temporary injunction of SB 4; now, the district court is set to consider the law itself.

In a statement released after Tuesday's ruling, Texas Attorney General Ken Paxton said the decision shows the law doesn't run afoul of the U.S. Constitution. 

"I’m pleased the 5th Circuit recognized that Senate Bill 4 is lawful, constitutional and protects the safety of law enforcement officers and all Texans,” he said. “Enforcing immigration law prevents the release of individuals from custody who have been charged with serious crimes."

One of the most controversial components of SB 4, what opponents call the “papers please” provision, was never halted and has been law since September. In his August ruling, Garcia allowed that part of the law to go into effect but said officers cannot prolong a stop for longer than necessary and can’t make an arrest solely based on immigration status.

Olivares said he’s already heard this hasn’t always been the case and said that’s one of the challenges to the law that could be presented to the district judge.

“Police officers are prolonging the stops on purpose just to allow for Border Patrol or [Immigration and Customs Enforcement] agents, and that is unconstitutional,” he said. “We know that is happening around the state and particularly in border areas, so we are keeping track of that.”

Another option is for local governments to adopt or continue policies where being charged for an alleged misdemeanor doesn’t trigger automatic arrest, said Bob Libal, the executive director of Grassroots Leadership, an Austin-based immigrant rights and private-prison watchdog group.

“Local officials need to act swiftly to stop the arrest-to-deportation pipeline that will be accelerated by SB 4,” Libal said. “They can start by enacting policies that end discretionary arrests while ensuring that scarce public resources are not wasted on unnecessary immigration enforcement actions that terrorize the immigrant community.”