- Philip Jankowski American-Statesman Staff
The nation’s toughest state immigration law will take effect in Texas on Friday, marking a new era for members of local law enforcement now empowered to become to some degree an immigration cop.
The implementation of Senate Bill 4, the so-called sanctuary cities ban, has local opponents fearful of what it will mean for immigrant communities in Austin and beyond. But while local law enforcement across the state have denounced the law as one that will make their jobs harder, several members of those agencies said they were making a few preparations in anticipation of the law — which Austin and other cities have asked a judge to block from taking effect.
Williamson County Sheriff Robert Chody, a conservative who has publicly supported the spirit of SB 4, said Tuesday that local implementation has temporarily taken a back seat to response efforts to Hurricane Harvey.
SB 4 “is not our priority right now,” Chody said as he prepared to accompany deputies who are rescuing people from the catastrophic flooding in Houston. “The hurricane has really distracted us.”
SB 4 creates civil and criminal penalties for any elected official who prevents local cooperation with federal immigration detention requests, or “detainers,” placed on county jail inmates suspected of being in the country illegally. It also empowers local police to investigate a person’s immigration status during routine police interactions, such as traffic stops.
Supporters of SB 4 believe the law will take criminals off the streets. Opponents say the law will lead to racial profiling; create distrust between residents and police; and break up immigrant families.
When it was drafted, SB 4 seemed aimed at Travis County Sheriff Sally Hernandez, who announced in late January that the Travis County Jail would ignore most of the detainer requests by Immigration and Customs Enforcement. The policy created unprecedented acrimony between Hernandez, who was elected in 2016, and Gov. Greg Abbott, who vowed to have the sheriff tossed from office.
Barring an 11th hour injunction, which could come down Thursday from a federal court that heard Austin’s challenge to SB 4, Abbott would have that tool to pave the way for Hernandez’s ouster.
However, a sheriff’s spokeswoman said Hernandez would follow the law and begin honoring all ICE detainers on Friday. Jail staffers have been preparing for the law, but no solid policy has been formalized on deputies inquiring about immigration status.
“We haven’t landed on anything, but our command staff are researching all options,” spokeswoman Kristen Dark said. “Right now, since litigation is pending, we are not going on record to say anything.”
The Austin Police Department will roll out a new policy Friday that outlines compliance with SB 4, interim Police Chief Brian Manley said. That will not undo a previous mandate that prevented Austin’s cops from detaining people solely because of their immigration status.
Officers will have to fill out a report when they investigate a person’s citizenship that will indicate why an officer made an inquiry and what questions were asked, Manley said.
“This is an attempt of us to be fully transparent about when we ask questions related to a person’s immigration status,” Manley told the American-Statesman.
But because it adds paperwork, Austin police union President Ken Casaday said some officers might avoid asking about a person’s immigration status.
“I would say that some officers would probably think that, (but) not everybody,” Casaday said. “If there is a good reason to ask, I would want them to ask. But you know just stopping someone on the side of the road, I don’t see a reason to ask their immigration status.”
SB 4 prohibits such questioning in certain circumstances, including when officers are working on details for churches, hospitals or schools. Those limits are reflected in the Police Department’s new policy. The policy also states that while officers can ask, they cannot “compel” a person to answer, Manley said.
Round Rock police said things will remain largely unchanged at their department. Like most other police departments in the area, it has no policy preventing officers from asking about a person’s immigration status.
Austin Homeland Security and Emergency Management on Wednesday posted a notice on Twitter saying no one at city shelters for Harvey evacuees would be checking for papers or immigration status. Mayor Steve Adler has made similar assurances.
State House Representative Eddie Rodriguez, D-Austin, on Tuesday called for state lawmakers to delay enforcing SB 4 and direct local law enforcement to prioritize disaster relief over immigration enforcement.
“To have to remind people to save their own lives and be safe … really does underscore the trust factors that have been really damaged by this law,” Rodriguez told the Statesman on Wednesday.
Opponents of the provision in SB 4 empowering officers to become proxy immigration cops say it will encourage racial profiling. SB 4 contains a provision that prohibits racial discrimination, but it provides no guidance as to how to walk the line between enforcement and the potential for overenforcement on the state’s large Hispanic population.
Jessica Vaughan, director of policy studies for the conservative Center for Immigration Studies, said that the premise that SB 4 will encourage racial profiling is flawed. Vaughan said officers will find reasons to be suspicious of a person’s immigration status beyond the color of their skin or English language proficiency before investigating their immigration status.
Something stricter was attempted in Arizona in 2010 with the passage of a controversial comprehensive immigration enforcement law. That law not only encouraged but also demanded law enforcement investigate anyone’s immigration status if an officer found “reasonable suspicion” that they might be in the country illegally. A court settlement in 2016 required the state to stop demanding its law enforcement officers to ask for the papers of people they might suspect of being in the country illegally.
“Texas’ law is not that strict, and this is the balancing act the lawmakers had to perform,” Vaughan said. “If you want to completely avoid racial profiling, you ask everybody. But they had to balance that against not wanting to require officers to do it all the time.”
Texas doesn’t issue driver’s licenses to anyone who cannot provide proof of U.S. citizenship. As a result, when a driver is unable to provide a license during a traffic stop, it is often a signal that the person might be in the country illegally, Vaughan said.
“I think (an officer’s decision to ask about immigration status) is going to be personal,” local immigration attorney Kate Lincoln-Goldfinch said. “Cops are going to ask or they’re not. I don’t know how many cops in APD are racist.”
Austin’s police union president said he isn’t worried by the law.
“It is not like we are going to be hauling in people because they are illegal,” Casaday said. “We deal with people every day that we know are illegal immigrants, and we don’t do anything with them.”