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City of El Cenizo v. State of Texas

United States Court of Appeals, Fifth Circuit

May 8, 2018

CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo; TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; MAVERICK COUNTY, Plaintiffs - Appellees Cross-Appellants
STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his Official Capacity, KEN PAXTON, Texas Attorney General, Defendants - Appellants Cross-Appellees CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS, TEXAS; THE CITY OF HOUSTON, Intervenors - Plaintiffs - Appellees Cross-Appellants EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; JO ANNE BERNAL, El Paso County Attorney in her Official Capacity; MOVE San Antonio, Plaintiffs - Appellees Cross-Appellants TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY COMMISSIONERS, Intervenor - Plaintiff - Appellee Cross-Appellant
STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney General; STEVE MCCRAW, Director of the Texas Department of Public Safety, Defendants - Appellants Cross-Appellees CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in his Official Capacity as San Antonio City Councilmember; TEXAS ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT; CITY OF EL PASO, Plaintiffs - Appellees Cross-Appellants CITY OF AUSTIN, Intervenor Plaintiff - Appellees Cross-Appellants
STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor of the State of Texas, Defendants - Appellants Cross-Appellees

          Appeals from the United States District Court for the Western District of Texas

          Before JONES and SMITH, Circuit Judges.


         We withdraw our prior opinion of March 13, 2018, City of El Cenizo v. Texas, 885 F.3d 332 (5th Cir. 2018), and substitute the following, the purpose of which is to eliminate reference to United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), given that decision's abrogation by the Supreme Court in Sessions v. Dimaya, 138 S.Ct. 1204 (2018).[1]

         Texas cities, counties, and local officials challenge Senate Bill 4 ("SB4"), a Texas law that forbids "sanctuary city" policies throughout the state. SB4 prohibits local authorities from limiting their cooperation with federal immigration enforcement, and it requires local officers to comply with Immigration and Customs Enforcement ("ICE") detainer requests. In their pre-enforcement lawsuit, the plaintiffs alleged a battery of constitutional violations: (I) SB4 is preempted by federal immigration law, (II) SB4's "endorse" prohibition violates the First and Fourteenth Amendments, (III)SB4's ICE-detainer mandate violates the Fourth Amendment, and (IV)SB4's phrase "materially limits" is unconstitutionally vague under the Fourteenth Amendment. The district court issued a preliminary injunction, enjoining several of the law's provisions. Texas appeals the injunction, and the plaintiffs cross-appeal the district court's refusal to issue a broader injunction. With one exception, SB4's provisions do not, on their face, violate the Constitution. For the following reasons, we uphold the statute in its entirety except for the application of the "endorsement" prohibition, Tex. Gov't Code § 752.053(a)(1), to elected officials.


         I. Senate Bill 4

         In May 2017, the Texas Legislature enacted Senate Bill 4 to prohibit sanctuary city policies. The law imposes duties on certain state officials and provides civil and criminal liability for violations of those duties. Three parts of the law are critical to this case: (A) the immigration-enforcement provisions, (B) the ICE-detainer mandate, and (C) the penalty provisions.

         A. Immigration-Enforcement Provisions

         As codified at Texas Government Code § 752.053(a)-(b), SB4 forbids local entities from limiting the enforcement of federal immigration law. Subsections (a)(1) and (a)(2) of Section 752.053 provide broad prohibitions. Under subsection (a)(1), a local entity may not "adopt, enforce, or endorse a policy under which [it] prohibits or materially limits" immigration enforcement. Id. § 752.053(a)(1). After subsection (a)(1) deals with anti-cooperation "policies, " subsection (a)(2) further prohibits any "pattern or practice" that similarly frustrates enforcement. Id. § 752.053(a)(2).

         Following the general prohibitions in (a)(1) and (a)(2), subsection (b) enumerates concrete examples of immigration-enforcement activities that a local entity may not "prohibit or materially limit." Id. § 752.053(b). These include (b)(1) "inquiring into the immigration status" of lawfully detained individuals, (b)(2) sharing immigration-status information with federal agencies, and (b)(3) "assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance." Id. § 752.053(b)(1)-(3).[2]

         The prohibitions in Section 752.053 apply broadly to any "local entity or campus police department." Id. § 752.053(a)-(c). SB4 defines "local entity" to include the governing bodies of counties and municipalities as well as officers or employees of those authorities, including "a sheriff, municipal police department, municipal attorney, [ ] county attorney[, ] . . . district attorney or criminal district attorney." See id. § 752.051(5)(A)-(C). But SB4 excludes hospitals, school districts, and certain community centers-as well as officers employed by these institutions-from the law's requirements. See id. § 752.052(a)-(f).

         B. ICE-detainer Mandate

         As codified at Texas Code of Criminal Procedure article 2.251, SB4's ICE-detainer mandate requires law-enforcement agencies to comply with detainer requests submitted by ICE. An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security ("DHS") as soon as practicable before an alien is released and (2) to maintain custody of the alien for up to 48 hours beyond the preexisting release date so that DHS may assume custody.[3] As of April 2017, ICE must make this request using Form I-247A, which must be accompanied by a signed administrative warrant. Form I-247A states that DHS has determined that there is probable cause that the subject of the request is a removable alien, and ICE officers check one of four boxes on the form to indicate the basis for probable cause. [4]

         SB4's ICE-detainer mandate applies whenever "[a] law enforcement agency [ ] has custody of a person subject to" an ICE detainer. Tex. Code Crim. Proc. art. 2.251(a). Under subsection (a), the mandate requires law enforcement agencies to "comply with, honor, and fulfill" ICE's requests. Id. It also requires that the individual in custody be informed he "is being held pursuant to" an ICE detainer. Id. art. 2.251(a)(2).

         Subsection (b) provides a lone exception to the detainer mandate: law enforcement agencies need not comply with detainers if shown "proof that the person is a citizen of the United States or . . . has lawful immigration status." Id. art. 2.251(b). Subsection (b) states that such "proof" could include a Texas driver's license or similar government-issued ID. Id. art. 2.251(b).

         C. Penalty Provisions

         SB4 is enforced through civil and criminal penalties by Texas's Attorney General. Private citizens may file complaints with the Attorney General, alleging by sworn statement that a local entity is violating the enforcement provisions. See Tex. Gov't Code § 752.055(a). Upon determining that such a complaint is valid, the Attorney General may file suit in state court to enforce the law. See id. § 752.055(b). If a court finds there has been a violation, local entities may be subject to fines of $1, 000 to $1, 500 for a first violation and $25, 000 to $25, 500 for subsequent ones, with each day of continuing violation constituting a separate violation. See id. § 752.056(a)-(b). If the Attorney General is presented with evidence that a public officer has violated the enforcement provisions, SB4 requires the Attorney General to file an enforcement action. See id. § 752.0565(b). Public officers found guilty of violating the law are subject to removal from office. See id. § 752.0565(c).

         SB4 makes certain officials' failure to comply with SB4's ICE-detainer provision a misdemeanor. See Tex. Penal Code § 39.07(a)-(c). SB4 further requires Texas to indemnify local entities against any claim arising out of their good-faith compliance with an ICE-detainer request. See Tex. Gov't Code § 402.0241.

         II. Prior Proceedings

         Before SB4 could go into effect, several Texas cities, counties, local law-enforcement and city officials, and advocacy groups challenged the law in three consolidated actions. The plaintiffs sought a preliminary injunction, and the district court found the plaintiffs likely to prevail on the following claims:

• Section 752.053(b)(3)'s assistance-cooperation provision is field and conflict preempted by federal immigration law;
• Section 752.053(a)(1)'s "endorse" prohibition violates the First and Fourteenth Amendments because it is overbroad, discriminates on the basis of viewpoint, and is unconstitutionally vague;
• Section 752.053(a)(1) and (a)(2)'s "materially limits" prohibitions are unconstitutionally vague under the Fourteenth Amendment; and
• Article 2.251's ICE-detainer mandate violates the Fourth Amendment.

         Enjoining these provisions, the district court nevertheless rejected the plaintiffs' claims that SB4 was preempted more generally.

         Following the district court's order, Texas moved this court to stay the injunction pending appeal. The stay panel granted the motion in part, finding Texas likely to prevail on the Fourth Amendment and preemption claims, and stayed the injunction as to article 2.251's ICE-detainer mandate and Section 752.053(b)(3)'s assistance-cooperation provision. City of El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, at *2 (5th Cir. Sept. 25, 2017) (per curiam). The stay panel left the injunction in place as to the "endorse" and the "materially limits" prohibitions, concluding that possible limiting constructions of these terms "are best left for the time when this court's ruling would have more finality." Id. Texas now appeals the preliminary injunction, and the plaintiffs cross-appeal the district court's refusal to enjoin SB4 completely.


         "To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations omitted). This court "review[s] a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo." Texans for Free Enter. v. Tex. Ethics Comm'n, 732 F.3d 535, 537 (5th Cir. 2013) (citations omitted). Because the issues raised by the parties substantially overlap, we discuss the appeal and cross-appeal together.


         I. Preemption

         Under the federal Constitution, "both the National and State Governments have elements of sovereignty the other is bound to respect." Arizona v. United States, 567 U.S. 387, 398, 132 S.Ct. 2492, 2500 (2012). Because dual sovereignty allows for conflicts between state and federal legislation, the Constitution's Supremacy Clause provides that federal legislation "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Congress may preempt state legislation "by enacting a statute containing an express preemption provision, " Arizona, 567 U.S. at 399, 132 S.Ct. at 2500-01, but this case does not involve express preemption. Rather, the plaintiffs allege two forms of implied preemption: field preemption and conflict preemption.

         A. Field Preemption

         Field preemption occurs when "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Arizona, 567 U.S. at 399, 132 S.Ct. at 2501. Although the Supreme Court has recognized field preemption claims, it has indicated courts should hesitate to infer field preemption unless plaintiffs show "that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was 'the clear and manifest purpose of Congress.'" De Canas v. Bica, 424 U.S. 351, 357, 96 S.Ct. 933, 937 (1976) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S.Ct. 1210, 1219 (1963)); see also Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 560 (5th Cir. 2013) (en banc) (Higginson, J., specially concurring) (noting that De Canas forecloses sweeping field preemption claims). Analyzing the relevant federal legislation, we conclude that the plaintiffs have not satisfied this standard. Congress has not preempted the field that SB4 regulates.

         The district court found only one provision of SB4 field preempted. According to the district court, Section 752.053(b)(3)'s assistance-cooperation provision impermissibly regulates the field of "immigration enforcement, " which Congress fully preempted through comprehensive regulation. The plaintiffs now argue that SB4 is field-preempted in its entirety because Congress occupied the field of "federal-local cooperation in immigration enforcement."

         As evidence that Congress has comprehensively regulated the relevant field, the plaintiffs point to federal statutes regulating local cooperation with immigration enforcement. See 8 U.S.C. § 1324(c) (permitting local officers to make arrests for crimes of immigrant smuggling, transporting, or harboring); id. § 1252c (authorizing local officers to make arrests to enforce criminal reentry provisions following INS "confirmation" of an individual's immigration status); id. § 1103(a)(10) (authorizing local officers to enforce immigration law if the Attorney General has "determine[d] that an actual or imminent mass influx of aliens . . . presents urgent circumstances"); id. §§ 1373, 1644 (requiring that state and local jurisdictions permit their officers to send, receive, and maintain "information regarding the citizenship or immigration status" of individuals).

         In addition to these provisions, the plaintiffs rely heavily on 8 U.S.C. § 1357, which specifies immigration-officer functions and describes circumstances under which state and local officers can perform those functions. Under Section 1357, immigration-officer functions include the power "to interrogate" and "to arrest" aliens without a warrant. Id. § 1357(a)(1)-(2). Section 1357 further provides that states and political subdivisions can enter into written agreements with the Federal Government, so that state and local officers can perform immigration-officer functions. Id. § 1357(g). These "287(g)"[5] agreements require that local officers must be "determined by the Attorney General to be qualified"; that they receive appropriate training; that their powers and duties are set forth in a written agreement; and that they are "subject to the direction and supervision of the Attorney General." Id. § 1357(g)(1)-(5). States and municipalities may not be required to enter into these agreements. Id. § 1357(g)(9).

         Section 1357 also contains a critical savings clause. Id. ยง 1357(g)(10). Because the parties' analysis focuses ...

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