CA5: TX sanctuary cities law is not enjoined pending trial; law not shown unconstitutional in all its applications

Texas’s sanctuary cities law (SB4) is not enjoined pending trial. Plaintiffs do not show that the law is unconstitutional in all its applications. City of El Cenizo, Texas v. State of Texas, 17-50762 (5th Cir. Mar. 13, 2018):

… Bringing a facial challenge, it is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate will often cause Fourth Amendment violations. They must establish that the mandate “is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008).

The plaintiffs suggest that the Supreme Court’s recent decision in City of Los Angeles v. Patel, has lowered the bar for facial Fourth Amendment challenges, but they misconstrue the case. 135 S. Ct. 2443 (2015). Patel rejected the contention that facial Fourth Amendment challenges are “categorically barred or especially disfavored.” Id. at 2449. The Court did not overrule the Salerno standard but merely clarified that, under the unconstitutional-in-all-of-its-applications analysis, a court must “consider[] only applications of the [challenged] statute in which it actually authorizes or prohibits conduct.” Id. at 2451 (emphasis added). In other words, a facial challenge does not fail merely because exigent circumstances or a warrant could independently justify some applications of the challenged statute. Id. Thus, the plaintiffs must establish that every seizure authorized by the ICE detainer mandate violates the Fourth Amendment. They have not satisfied this exacting standard.

It is undisputed that federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability. Abel v. United States, 362 U.S. 217, 233-34, 80 S. Ct. 683, 694 (1960). It is also evident that current ICE policy requires the Form I-247A to be accompanied by one of two such administrative warrants. On the form, an ICE officer certifies that probable cause of removability exists. Thus, an ICE-detainer request evidences probable cause of removability in every instance. Under the collective-knowledge doctrine, moreover, the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability. See United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017) (“Under the collective knowledge doctrine, an officer initiating the stop or conducting the search need not have personal knowledge of the evidence that gave rise to the reasonable suspicion or probable cause, so long as he is acting at the request of those who have the necessary information.”). Compliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself provides the required “communication between the arresting officer and an officer who has knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).

Nevertheless, the plaintiffs make several arguments why this cooperation constitutes a per se violation of the Fourth Amendment. …