The federal District Court of Nebraska in Omaha has issued an important opinion in the consolidated cases of Keller v. City of Fremont and Martinez v. City of Fremont.  The Court upheld most of Fremont’s pioneering citizen enforcement law, enacted by popular referendum in 2010, against twin lawsuits engineered by the ACLU and MALDEF.  Read the full decision below.

On February 20, 2012, federal judge Laurie Smith-Camp upheld all of the employment provisions of the Ordinance, which was designed with assistance from IRLI attorneys. Judge Smith-Camp also found that the City could lawfully all renters to obtain occupancy permits and verify the immigration status/citizenship status of all renters.  However, in a partial setback, the Court narrowly enjoined the part of the Ordinance which authorized the revocation of an occupancy license on the basis of that person’s unlawful immigration status.

The Court explained that although Congress wanted and intended for cities to assist in identifying those aliens who are not lawfully in the country, taking the additional step of revoking occupancy licenses for unlawfully present aliens would conflict with Congress’ intent and thus be preempted.  The Court reasoned that by revoking the occupancy licenses of these individuals, the federal government would no longer be able to identify the address where the unlawfully present alien resides.  The Court also held that the revocation sanction violated the Fair Housing Act under a theory of “disparate impact”— that the law disproportionately affected Latinos and Hispanics because the Court believed that those groups made up the majority of illegal aliens. 

The City has now decided to implement the employment provision of the Ordinance, but continue to delay enforcement of the occupancy license provision until after pending appeals from this judgment are heard by the Eighth Circuit Court of Appeals.  Notice of the City's appeal was filed on March 26, 2012.

During the appeal process, the City is now permitted to enforce nearly all of the Fremont Ordinances, with the important proviso that it cannot revoke occupancy licenses of illegal aliens.