Two weeks ago, the Houston City Council passed an ordinance clarifying the extent to which local police can assist federal immigration enforcement. When police detain a pedestrian or driver, the ordinance says, they cannot extend the stop after its purpose has been served because a background check reveals a civil administrative warrant issued by Immigration and Customs Enforcement (ICE).
That ordinance drew the ire of Texas Gov. Greg Abbott, who threatened to withhold $110 million in state public safety grants unless it was repealed. The ordinance has also sparked a lawsuit by Texas Attorney General Ken Paxton, who argues that it violates state law that a “local entity” cannot “prohibit or physically limit” a “peace officer” from “assisting or assisting.” But on its face, the ordinance only requires the Houston Police Department (HPD) to comply with the Fourth Amendment.
“During a territorial encounter,” the ordinance says, “officers may temporarily detain a person only as long as reasonably necessary to accomplish the legitimate purpose of an initial stop or investigation. An ICE administrative warrant is civil in nature and does not, alone, justify a stop, arrest, or continued detention by local law enforcement, if the HPD’s independent cause warrants a criminal detention. If the arrest or continued detention does not justify the person’s release, the person must be released.”
That policy is certainly inconvenient for ICE, but this is what the Supreme Court has said about the limits of police stops by the Fourth Amendment. In the case of 2015 Rodriguez v. United StatesThe court held that “a police stop longer than necessary to handle the matter being stopped is a violation of the Constitution’s shield against unreasonable coercion.”
That case involved a motorist who was pulled over for driving on the shoulder of a highway and detained for an additional “seven or eight minutes” after he received a written warning to facilitate the deployment of a drug-detecting dog. The majority concluded that “seizures were made only from traffic violations observed by the police . . . .”[s] Illegal if it takes longer than a reasonable time to complete[e] Mission to issue tickets for violations. The arrest may last longer than that point, the court said, if the officer has “reasonable suspicion of criminal activity.”
The Houston City Council decided it needed to remind police of that rule in light of incidents where officers turned traffic stops into immigration arrests. Last July, Houston police pulled over a driver for an expired registration. After a database search turned up an immigration warrant, officers contacted ICE, who directed them to the Jersey Village police station, about 20 miles from the location of the traffic stop. ICE arrested him there. The following month, a Houston officer also helped ICE make an arrest by transporting a driver to a police station after he stopped for running a red light.
In those cases, there was no “reasonable suspicion of criminal activity,” since the basis for the extradition was an alleged civil violation, and there was no probable cause for an arrest, since local police officers do not have the authority to enforce federal immigration law unless they are assigned for that purpose. “If local officials engage in immigration enforcement even though they have no legal authority to do so, that could be a constitutional violation,” said Seth Stoughton, a law professor at the University of South Carolina. Houston Chronicle. “An officer effectively has no more authority to arrest someone than any random community member.”
That seems pretty clear even without considering the question of whether arrest warrants issued by ICE itself, as opposed to a judge, are consistent with the Fourth Amendment. “Administrative immigration warrants are civil in nature and authorize federal immigration authorities to detain an alleged nondeportable for immigration proceedings,” the Houston ordinance’s authors noted. “Administrative immigration warrants do not provide a basis for local law enforcement agencies, such as HPD, to arrest, detain or take someone to jail.”
In addition to denying such arrests, the ordinance reversed a short-lived HPD policy that directed officers to wait half an hour after ICE contact before releasing an alleged immigration violator. That policy also seemed to be running on recognized principles Rodriguez.
Expecting police officers not to violate the Fourth Amendment was too much for Abbott, who said Monday that “refusing to cooperate with federal immigration authorities is fatal.” It also angered Paxton, who characterized the Houston ordinance as a state-prohibited “sanctuary city” policy “designed to limit the cooperation of local law enforcement.” ICE.”
Lindsey Nash, a professor at the Cardozo School of Law who has studied the history of administrative warrants as a tool in immigration enforcement, says the positions Abbott and Paxton have taken seem unprecedented. “I’m not aware of any other state or municipality attempting to order an arrest based solely on these administrative warrants,” Nash said. The New York Times. When a local police officer extends a stop for that reason, she said, it clearly “violates the Fourth Amendment.”
Houston Mayor John Whitmire initially supported the ordinance, which he saw as a restatement of existing policy. But he is ready to face Abbott’s economic threat. “I voted [ordinance] Believing it reaffirms our original policy,” Whitmire said last week. “Houston enforces state and local law — not federal law, and we’re not ICE. However, Governor Abbott disagrees.”
On Tuesday, Whitmire proposed a revised ordinance aimed at appeasing Abbott and Paxton, which he described as an immediate response to the “public emergency” created by the governor’s threats. “During a field encounter,” it says, “Authorities can temporarily detain a person for long periods of time Reasonably necessary to fulfill the legitimate purpose of the initial stop or research and for other legitimate purposes discovered at the time Custody” (emphasis added).
Does facilitating an ICE arrest count as a “legitimate purpose”? This seems dubious, since Whitmire’s version says the purpose of the ordinance is to “ensure continued compliance by officers of the Houston Police Department with all local, state and federal laws, including the Fourth Amendment to the United States Constitution.”
In tension with that goal, Whitmire’s proposed ordinance deletes the statement that “ICE administrative warrants are not reviewed by a neutral magistrate or judge and are not probable cause for a criminal arrest.” His version describes those warrants as “Ordering the arrest of a person or carrying out removal Proceedings or for removal.” The existing ordinance is vague on the function of warrants, stating that they are issued “for civil immigration violations.”
The current version already states “Nothing in this section shall be construed to prohibit or materially limit cooperation with federal immigration authorities as required by state law.” Whitmire wants to add “or by agreement” that appears to be a reference to the grant terms that Abbott requires Texas cities to cooperate with ICE.
Will these changes be enough to assuage Abbott’s wrath? Maybe, but the new language seems intentionally vague. And no matter how the Houston City Council tweaks the ordinance, it cannot authorize what the Fourth Amendment prohibits.
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