Texas asks SCOTUS to let it enforce its new immigration criminal law during appeal

The Fifth Circuit allowed Texas to do so. Will SCOTUS stop them? Also: The Eleventh Circuit said a detective might not get qualified immunity in a long-running case.

At the U.S. Supreme Court on Monday, Texas defended its effort to enforce its new immigration criminal law, S.B. 4, while the appeals of challenges to the law — including from the Biden administration — are argued at the U.S. Court of Appeals for the Fifth Circuit.

Among other provisions, the text of S.B. 4 would create a new Texas criminal law of “illegal entry” and allow for state enforcement of that law, including removal. Despite the U.S. Supreme Court’s 2012 decision in Arizona v. U.S. striking down similar provisions in an Arizona law, Texas insists that its law is fine.

“Not only should this pre-enforcement challenge not be in federal court, but Plaintiffs’ argument misreads Arizona, rests on mischaracterizations of S.B.4, defies federalism, and invites rather than avoids constitutional conflict,” the state’s lawyers argued.

Notably, in its four-paragraph introduction, lawyers for Texas Attorney General Ken Paxton fail even to mention why the justices are being presented with the case. A 114-page preliminary injunction was issued blocking enforcement of the law by the district court on Feb. 29 before it was to go into effect. That would have kept the law on hold during the appeal, but a Fifth Circuit motions panel, on a 2-1 vote two days later, issued an “administrative” stay of the injunction with no reasoning on the basis of only the barest briefing — effectively overruling the district court’s injunction during the appeal.

In short, the Fifth Circuit issued an order allowing a new law to go into effect — that has never gone into effect — before the appeals court even heard the state’s appeal in the case after it lost in the court below.

Merely stating what has happened raises questions about the Fifth Circuit’s actions.

Because of that Fifth Circuit order, the Justice Department went to the Supreme Court last week asking the justices to vacate the Fifth Circuit’s stay, arguing that allowing SB4 to go into effect would “profoundly alter[] the status quo that has existed between the United States and the States in the context of immigration for almost 150 years.” Organizational plaintiffs challenging the law filed a similar request.

Justice Sam Alito, the circuit justice for the Fifth Circuit, ordered Texas to respond — to the related organizational request as well — and kept the law on hold until Wednesday with his own “administrative stay” of the Fifth Circuit’s administrative stay.

In Monday’s filing, Texas argued that the injury the state would face if not allowed to enforce the law is key ”because Texas is the nation’s first-line defense against transnational violence and has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”

The Justice Department (and organizational plaintiffs) likely will file a reply by 5 p.m. Tuesday. Because of the limits of Alito’s current order, a further order extending the administrative stay from him or the court — or an order granting DOJ’s request to vacate the Fifth Circuit’s stay — would have to come by 5 p.m. Wednesday to keep the law on hold.

[Update, 11:30 a.m. March 12: On Tuesday morning, Justice Sam Alito extended the administrative stay until 5 p.m. Monday, March 18. As with the prior stay, the stay will need to be extended by then or the court would need to grant the underlying request to vacate the stay by then in order to keep the law from going into effect.]

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Eleventh Circuit qualified immunity decision

A unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit¹ ruled on Monday that Keith Sylvester’s lawsuit against an Atlanta police detective can proceed for an arrest that Sylvester says violated the Fourth Amendment and resulted in him spending more than a year in pretrial custody before all charges against him were dismissed in 2020.

It is the rare case where a federal appeals court reversed a district court that granted law enforcement’s request to have a case thrown out based on qualified immunity.

This is a high-profile case out of Atlanta, though, that has led to significant media attention over the past 6 years in between Sylvester’s December 2018 arrest in connection with the July 2018 fire and strangulation killings of his mother (Deborah Hubbard) and step-father (Harry Hubbard); Sylvester’s release in March 2020, exoneration, and the arrest of another man; the lawsuit; and Monday’s appellate ruling that means Sylvester’s can keep pressing his case against the man who had him arrested.

The standard in malicious prosecution challenges like the one brought by Sylvester, Judge Andrew Brasher wrote for the court, is that the prosecution leading to his detention “is constitutionally infirm if the officer who provided the probable cause affidavit intentionally or recklessly made misstatements or omissions necessary to support the warrant.”

Brasher, a Trump appointee, was joined by Judges Charles Wilson, a Clinton appointee, and Jill Pryor, an Obama appointee, in the ruling.

“There were material facts omitted from the warrant affidavit,” he wrote regarding the legal question embedded in that standard. “When those omissions are corrected, the affidavit fails to establish even arguable probable cause.” This was so, Brasher explained, because the affidavit did not include “the full timeline,” which would have been the end of the warrant:

After then also holding that “a reasonable jury could find that Detective [James] Barnett intentionally or recklessly left out information that exonerated Sylvester,” the court concluded: “[I]f a jury finds such misconduct, qualified immunity will not shield Detective Barnett from liability.”

The decision reversed a 2022 ruling from U.S. District Judge Leigh May, an Obama appointee.

Barnett could seek to appeal this ruling, either en banc or to the Supreme Court. Even if he doesn’t, however, the case still needs to return to the district court for trial — meaning Sylvester, more than four years after the criminal charges against him were dropped, still has a significant road ahead of him in this case seeking accountability for that case.

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On upcoming SCOTUS arguments

As I discussed in a note over the weekend, the coming two months include several high-profile oral arguments at the Supreme Court.

Check out the full note, and stay tuned to Law Dork for all the latest.

1. This was corrected after initial publication to correct the circuit at issue. (It was correct elsewhere.)