JUL 16, 2019

The first legal challenge to Florida’s controversial law banning so-called “sanctuary” cities and counties was filed on Tuesday against Governor Ron DeSantis and Attorney General Ashley Moody in the Southern District of Florida. Leading the federal lawsuit is the City of South Miami.

The new law SB 168 requires local police departments, sheriff’s offices and Corrections Departments to use their “best efforts” in assisting federal immigration officials for enforcement of immigration law. It also allows the Governor or Attorney General to sue or even remove a local official from office if they don’t comply with the terms of the law, which went into effect on July 1.

Law enforcement departments are required to enter into formal agreements with Immigration and Customs Enforcement under the new law. WLRN found that only 41 of 67 counties in the state had entered into those agreements after the law went into effect, though ICE said more agreements were in the process of being reached.

Immigrant rights and civil rights groups have previously dennounced the new law as unconstitutional, arguing it thwarts local decision making and forces police to detain people for an additional 48 hours at the request of the federal government, even when local charges are no longer pending and the federal agencies have not established probable cause to hold the individual. The lawsuit incorporates these arguments and expands on them, saying the law will lead to fewer immigrants calling police for legitimate issues in the communities, effectively harming public safety.

“We are asking the court to halt the enforcement of SB 168 because it violates Floridian’s constitutional right to due process and equal protection under the law,” said Alana Greer of the Community Justice Project, which is representing plaintiffs in the case. “The bill forces local police to act as rogue ICE agents, in violation of the supremacy clause of the US Constitution, and prevents local governments from enacting policies necessary to public safety.”

Plaintiffs for the case include the City of South Miami and a slew of non-profit groups from across the state. They include Florida Immigrant Coalition, Farmworker Association of Florida, WeCount!, Guatemalan-Maya Center, Americans for Immigrant Justice, Family Action Network Movement, QLatinx, Westminster Presbyterian United Church of Gainesville, and Hope CommUnity Center.

Representing them are attorneys from the Southern Poverty Law Center, the Community Justice Project, the Florida immigrant Coalition and the University of Miami School of Law Immigration Clinic.

The City of South Miami argues that the new state law is at odds with a local resolution it passed in 2017, which stated the city would not honor detainer requests or “entangle” the South Miami Police Department with federal immigration officials “as a matter of course.” The resolution was passed after the police department was previously involved in immigration enforcement enforcement, which the lawsuit describes as “incidents” that it wanted to avoid repeating.

“These incidents involved a request from ICE that [South Miami Police Department] enter a South Miami resident’s home, at gunpoint if necessary, to provide the individual to ICE, ICE participation in SMPD checkpoints for driving under intoxication, a local arrest, and an investigation by SMPD based on suspicion of immigration fraud,” reads the lawsuit.

The city argues that SB 168 is vague in what it is asking of its police department, and that it worries the city might be deemed as not being in compliance, leading to potential lawsuits from the Governor or Attorney General, and even to the Mayor, Vice Mayor or Commissioners being removed from office.

Miami-Dade County, where South Miami is located, does honor detainer requests from ICE. The county government previously declined to honor them, but started honoring them once again after President Trump threatened to block federal funding to any jurisdiction that doesn’t honor them. Those threats have yet to be carried out.

Prior to the passage of the SB 168, the Alachua County Sheriff’s Office did not honor detainer requests from ICE as a matter of policy, because it felt the requests didn’t meet the “probable cause” threshold needed to keep someone in custody. However, the Sheriff’s Office signed an agreement with ICE in late June.

“We felt that we would get sued,” Art Forgey, a spokesman for the Sheriff’s Office told WLRN. “I don’t believe we would have entered into this agreement without the Governor and Legislature doing this.”

Further, the Sheriff’s Office expressed concern that since it was legally obligated to enter into an agreement with ICE, the federal agency was able to unilaterally dictate the terms of the agreement. ICE declined a previous agreement that was written up by the Sheriff’s Office. “Alachua wanted to be able to produce documents under our public records laws but ICE didn’t like that,” said Forgey. The signed agreement between the Sheriff’s Office and ICE has several public records exceptions, limiting local officials’ ability to disclose its relationship with federal immigrations enforcement.

Attorney General Ashley Moody said in a press conference last month that she wasn’t worried about counties living up to the terms of the new law.

“Fortunately, in Florida most of our counties and cities respect the rule of law and want to follow the law,” she said at a press conference last week in Miami. “I don’t think it’s a problem … this law ensures that we can hold true to the rule of law, which is what this country and this state are founded on.”

Opponents of the law, including plaintiffs in the case, dispute the characterization that federal law currently requires them to honor voluntary requests for cooperation. Under the US Constitution, immigration enforcement is strictly the domain of the federal government.

In a public meeting last week, South Miami City Attorney Thomas Pepe said complying with the new law will cost unknown amounts of money by forcing it to comply with requests for assistance. And he also stressed that compliance with all federal requests could leave the city open to lawsuits, and possibly liable for monetary damages.

“If the city detains someone and there is no warrant, and nine times out of ten there is no warrant other than an administrative warrant, the city could be liable for a due process, equal protection kind of claim,” said Pepe.

Currently, both Miami-Dade County and the Monroe County Sheriff’s Office are facing lawsuits after holding US citizens in detention at the mistaken request of federal immigration officials. Both lawsuits are ongoing.

Read via WLRN here.