Two weeks ago, the Houston City Council enacted an ordinance clarifying the extent to which local police may cooperate with federal immigration enforcement. When police detain a pedestrian or driver, the ordinance says, they may not prolong the stop after its purpose has been accomplished simply because a background check reveals a civil administrative warrant issued by Immigration and Customs Enforcement (ICE).
That ordinance irked Texas Gov. Greg Abbott, who threatened to withhold $110 million in state public safety grants unless it is repealed. The ordinance also provoked a lawsuit by Texas Attorney General Ken Paxton, who argues that it violates a state law saying “a local entity” may not “prohibit or materially limit” a “peace officer” from “assisting or cooperating with a federal immigration officer as reasonable or necessary.” But on its face, the ordinance merely requires that the Houston Police Department (HPD) comply with the Fourth Amendment.
“During a field encounter,” the ordinance says, “officers may temporarily detain an individual only as long as reasonably necessary to complete the legitimate purpose of the initial stop or investigation. An ICE administrative warrant is civil in nature and, alone, does not justify a stop, arrest, or continued detention by local law enforcement, like HPD. If independent reasonable suspicion of a criminal offense sufficient to justify arrest or continued detention does not exist, the individual must be released.”
That policy is surely inconvenient for ICE, but it is consistent with what the Supreme Court has said about the limits that the Fourth Amendment imposes on police stops. In the 2015 case Rodriguez v. United States, the Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
That case involved a motorist who was pulled over for driving on a highway shoulder 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 “a seizure justified only by a police-observed traffic violation…’become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.” The stop can be prolonged past that point, the Court said, only if the officer has “reasonable suspicion of criminal activity.”
The Houston City Council decided that police needed to be reminded of that rule in light of incidents where officers had transformed traffic stops into immigration arrests. Last July, Houston police stopped a driver based on an expired registration. After a database search found an immigration warrant, the officers contacted ICE, which asked them to take the driver 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 likewise helped ICE make an arrest by transporting a driver to a police station after a stop for running a red light.
In those cases, there was no “reasonable suspicion of criminal activity,” since the basis for prolonging the seizures was an alleged civil violation, and no probable cause for an arrest, since local police officers have no authority to enforce federal immigration law unless they have been deputized for that purpose. “If a local officer was engaging in immigration enforcement when they did not have any legal authority to do so, that could amount to a constitutional violation,” University of South Carolina law professor Seth Stoughton told the Houston Chronicle. “The officer has effectively no more authority than any random community member to detain someone.”
That much seems 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 only authorize federal immigration authorities to take custody of an alleged deportable noncitizen for immigration proceedings,” the authors of the Houston ordinance noted. “Administrative immigration warrants do not provide a basis for local law enforcement agencies, like HPD, to arrest, detain, or transport someone to jail.”
In addition to ruling out such arrests, the ordinance reversed a short-lived HPD policy that instructed officers to wait half an hour after contacting ICE before releasing an alleged immigration violator. That policy likewise seemed to run afoul of the principle recognized in Rodriguez.
The expectation that police officers refrain from violating the Fourth Amendment was too much for Abbott, who on Monday averred that “refusing to collaborate with federal immigration officials is deadly.” It also irritated Paxton, who portrayed the Houston ordinance as a state-prohibited “sanctuary city” policy “designed to limit local law enforcement’s cooperation with ICE.”
Cardozo School of Law professor Lindsay Nash, who has studied the history of administrative warrants as a tool for immigration enforcement, says the position taken by Abbott and Paxton seems unprecedented. “I’m not aware of any other state or municipality attempting to mandate arrests solely on the basis of these administrative warrants,” Nash told The New York Times. When a local police officer prolongs a stop for that reason, she said, it clearly “violates the Fourth Amendment.”
Houston Mayor John Whitmire initially supported the ordinance, which he viewed as a restatement of existing policy. But he is ready to fold in the face of Abbott’s financial threat. “I voted for the [ordinance] believing it affirmed our original policy,” Whitmire said last week. “Houston enforces state and local law—not federal law, and we are not ICE. However, Governor Abbott disagrees.”
On Tuesday, Whitmire proposed a revised ordinance aimed at placating Abbott and Paxton, which he presented as an urgent response to the “public emergency” created by the governor’s threat. “During a field encounter,” it says, “officers may temporarily detain an individual as long as reasonably necessary to complete the legitimate purpose of the initial stop or investigation and for other legitimate purposes discovered during the detention” (emphasis added).
Does facilitating an ICE arrest count as a “legitimate purpose”? That seems doubtful, since Whitmire’s version says the ordinance is aimed at “ensuring continued compliance by Houston Police Department officers with all local, state and federal laws, including the 4th Amendment of the U.S. 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 “commanding the arrest of an individual either to conduct removal proceedings or for removal.” The existing ordinance is vaguer on the function of the warrants, saying they are issued “for civil immigration violations.”
The current version already says “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,” which looks like a reference to the grant conditions that Abbott says require Texas cities to assist ICE.
Will these changes be enough to assuage Abbott’s wrath? Maybe, but the new language seems deliberately ambiguous. And no matter how the Houston City Council tweaks the ordinance, it cannot authorize what the Fourth Amendment prohibits.
