State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 17, September 2008

In this Issue:
Behind the Headlines
Local Legislation
IRLI Tip of the Month

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Behind the Headlines

Denver, Colorado
In Denver, Colorado voters passed ballot initiative 100 which allows police officers to impound a vehicle operated by an "illegal alien."

The amendments to Denver Charter section 54-811 create two new grounds to impound a vehicle. First, a vehicle can be impounded as a "pubic nuisance" if the driver is "an illegal alien or may be reasonably suspected of being an illegal alien." Colorado state law already bars issuance of driver's licenses to illegal aliens. The definition of "illegal alien" in the Charter amendment appears to include illegal entrants, and aliens "residing" illegally after overstaying their period of authorized presence. This definition is not taken from federal law and thus nonstandard, so the City would be well advised to adopt policies that expressly require verification of status with federal immigration authorities.

Second, if a driver in Denver is found operating a Colorado-registered vehicle using a "foreign" license, without also carrying proof that he or she "is in the country legally," a notice of impoundment is issued to the vehicle owner, who must present proof that the driver was not an illegal alien within thirty days, and post a $2500 bond within sixty days to release the vehicle. Again, the drafter's use of nonstandard language regarding immigration status could create potential liability for the City, unless verification procedures provided by federal law are carefully incorporated into the guidelines that Denver uses to implement the new ordinance.

Poor drafting by the sponsor may have also unnecessarily limited the practical utility of this measure, to the sure frustration of the large majority of citizens who voted for Proposition 100. The ballot description erroneously stated that impoundment would be required, while the language of the amended ordinance merely authorizes officers to act at their discretion.

For an example of an impoundment statute that requires impoundment of vehicles driven by illegal aliens, see Arizona Code 28-3511.

Santa Ana, California
California day laborers and the Orange County Sheriff's Department have reached an agreement to settle a day labor harassment lawsuit.

The day laborers alleged that their First Amendment rights were violated by deputies not permitting them to solicit work. IRLI believes that localities need to be very wary of attempting to prevent day-laborers from soliciting work without reference to their unauthorized alien status, because First Amendment challenges will be triggered.

The hazards of outlawing a public gesture of readiness to work a safety hazard or nuisance is that they are generally protected expression under the First Amendment. IRLI has developed a model day labor ordinance which avoids these Constitutional pitfalls by expressly conditioning sanctions upon failure to demonstrate work authorization status.

South Carolina Immigration Law Challenged
H 4400 passed both houses and was signed into law by Governor Sanford (as noted in the June Legislation Bulletin). To recap — this comprehensive bill contains provisions providing that a prisoner or person confined in jail shall be checked for lawful status, all employers must enroll in the E-Verify program and prohibits illegal aliens from obtaining public benefits. H 4400 appears to contain similar language to the Oklahoma HB 1804. However, H 4400 includes a few questionable provisions. Although the legislature likely did not intend to directly impose civil sanctions on companies that employ unauthorized aliens — the language calls for such a penalty. IRLI believes that this action is preempted by federal law (see June Legislation on further information why this is not permitted). In addition, H 4400 contains a clause providing which documentation is appropriate for an employee to demonstrate they are authorized to work in this country. This list is not all inclusive — since the Immigration Reform and Control Act (IRCA) has a more expansive list of acceptable documents to demonstrate authorized status. IRLI believes, H 4400 will likely be subject to a legal challenge because the bill attempts to limit and contradicts federal law (or the I-9 requirements, 8 U.S.C. §1324a(b)(1)(B)).

Currently, this newly enacted law, which has been touted as one of the toughest immigration laws in the nation may be challenged because it conflicts with federal law. South Carolina legislatures ultimately did not heed the warnings from IRLI or other counsel that this bill might in deed contradict federal law.

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Local Legislation

Bradenton, Florida
Adding to the growing list of localities with cooperative agreements to enforce federal immigration law — five officers in Manatee County have undergone training. The immigration status of all persons detained in county jailed will be checked through the Department of Homeland Security database. If the inmate is determined to be an illegal alien, the Immigration and Customs Enforcement (ICE) shall be contacted for deportation.

Houston, Texas
The Harris County Sheriff's Office has nine officers participating with ICE. The officers who have completed the training will focus on checking the lawful status of all persons booked in the county (see article). Under the supervision of federal agents, the officers will vet an inmate's identity through a database and detain them for the deportation process.

Los Angeles City Council
The Los Angeles City Council approved an ordinance that requires large home improvement stores in the area to furnish day labor accommodations (see the article). The ordinance will require all home improvement stores constructing new additions or making alterations to submit day labor operating standards if the store is deemed to have an existing day laborer presence.

IRLI believes this ordinance violates several federal and state laws. If you live in the Los Angeles area and are disgusted with this attempt to further solidify the City's stance as a sanctuary city, please contact IRLI.

Los Angeles County
The Los Angeles County Board of Supervisors has requested that more police officers focus on illegal alien gang members in the community (see the article). Apparently, the County has been engaged in a 287(g) agreement with ICE for over 3 years now.

San Francisco, California
Further fueling the on-going controversy over San Francisco's sanctuary policies, the Immigrant Rights Commission approved a resolution urging the city to allow juvenile offenders to stay in the city. The commission, which is a conduit for political patronage to militant immigrant and far-left organizations, was upset by Mayor Newsom's recent change in immigration policy to hand over these juvenile illegal aliens to federal immigration officials (see the article).

Tucson, Arizona
The police chief has updated his department's policy on illegal immigration. The new policy mandates that officers shall not inquire into a person's immigration status if they are reporting a crime, are victims of a crime or have been stopped for minor traffic violations (see the article). Restricting an officer's discretion to ask about citizenship status affects public safety. If the law enforcement officers who pulled over six of the 9/11 hijackers in 2001 for traffic violations had the discretion to ask their immigration status, the attacks might have been averted or disrupted. In legal terms, a local policy which denies officers discretion to collect or report information about immigration violations in the course of their official duties violates two federal statutes 8 U.S.C. 1373 and 1644. Police officers who are forbidden to individually support immigration enforcement can sue municipalities to protect their constitutional rights. IRLI has worked with police officers and patrolman associations to fight these gag orders, and can provide more detailed information in individual cases.

Hartford, Connecticut
The City of Hartford is now facing similar legal liability. Mayor Perez recently signed an ordinance that bars police officers from arresting or detaining an individual solely because of their immigration status. The ordinance does provide that the federal immigration authorities shall be notified if the arrested person is determined to be an illegal alien, but this exception of arrestees still conflicts with federal law (see the article).

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IRLI Tip of the Month:

Debate Over Means to Challenge Birthright Citizenship

The ability of illegal aliens to obtain immediate U.S. citizenship for their children born in the United States presents one of the greatest challenges to the civil rights of American citizens and the privileges and immunities of citizenship. IRLI regularly receives requests for assistance or advice on challenging birthright citizenship through legislation or legal action. Here are the main options in our view:

1. Constitutional amendment: Adding a phrase to the 14th Amendment's citizenship clause or alternatively to the Naturalization Clause would be the most effective action in legal terms, but is the most difficult in political terms, as it would require both a Congressional resolution and ratification by state legislatures.
2. Act of Congress: Amend the Immigration and Nationality Act to provide a statutory definition of the phrase "subject to the jurisdiction [of the United States]" in Section 301, which defined who is a citizen at birth. This is the approach taken by Rep. Nathan Deal, in H.B. 1940. It would not require state ratification, but certainly would face a challenge in federal court. Opponents might argue that the meaning of this phrase could only be determined by federal judiciary, and only by means of a constitutional amendment. The U.S. Supreme Court has never ruled directly on the question of birthright citizenship for children of illegal aliens. The most relevant cases date from the late 1800s, before the legal definition of unlawful entry was clearly established in federal law.
3. State legislation: A state law directly refusing to treat "anchor babies" as U.S. citizens would likely be challenged on preemption grounds, with a claim that Congress has completely occupied the field of citizenship law. An alternative goal for a state statute would be bring the question before the courts in an advantageous manner. In this case, a state measure statute which distinguished between anchor babies and other births in an area of law where state authority was clearest would be needed, for example the collection of vital statistics.
4. State ballot measure: In those states which provide for legislation by citizen initiative, a ballot measure would face the same constraints as a state law, with the added complication that any technical flaws in the ballot language would be much more damaging, as the legislature would be unable to cure them.
5. Private legal action: A private lawsuit could be the source of a dispute over birthright citizenship which might lead to the ultimate consideration of the question by the Supreme Court. Keep in mind that relying on a lawsuit before the Supreme Court to restrict citizenship to children born to citizens and legal resident aliens without a significant number of lower court decisions defining the legal issues could be "throwing the dice." An example of where a birthright citizenship question might arise in a lawsuit would be a family or estate law case in a state court, where obtaining custody of a child, or family assets, or a bequest might turn on the citizenship status of a party.