Under a proposed settlement in a lawsuit between the state and civil rights groups, a cop in South Carolina would not be able to detain you if he or she believes you might be in the country illegally. In 2011, Gov. Nikki Haley signed a controversial ‘papers please’ law that would allow law enforcement officers to do just that. A court fight over it could soon be over if a judge approves the settlement.
A federal judge in Charleston had earlier blocked some provisions of South Carolina’s law — a copy cat version of one in Arizona — but revised his ruling in the wake of a U.S. Supreme Court decision that stripped out much of the Arizona law. Today’s proposed agreement will permanently block certain parts of the South Carolina law. Members of the civil rights groups that challenged it are cheering.
The agreement comes with an opinion from Republican Attorney General Alan Wilson that draws guidelines around what local law enforcement officers can and can’t do when it comes to enforcing immigration laws, says Karen Tumlin, managing attorney at the National Immigration Law Center.
“Even if they know the person is in the country illegally, they cannot detain them just on that basis,” she told the City Paper.
The lawsuit, which was brought by a coalition including Tumlin’s group, charged that South Carolina’s law subjected anyone within the state’s borders, including U.S. citizens and lawful permanent residents, to unlawful search and seizure, and interfered with federal power and authority over immigration issues.
The lawsuit also stated the law unconstitutionally mandated police to demand documents that show citizenship or immigration status during traffic stops when they have “reasonable suspicion” that a person is not in the country legally. And it made having everyday interactions with undocumented individuals a crime for state residents, which could include something as simple as giving someone a ride home or letting them crash on your couch.
In the fall of 2011, the National Immigration Law Center, Southern Poverty Law Center, ACLU, Mexican American Legal Defense and Educational Fund, and other civil rights groups filed the class action suit, which became Low Country Immigration Coalition v. Haley.
The U.S. Justice Department also challenged South Carolina’s law as it had in Arizona and Alabama. “It is understandable that communities remain frustrated with the broken immigration system, but a patchwork of state laws is not the solution and will only create problems,” said U.S. Attorney General Eric Holder at the time. The DOJ said such laws preempt the federal government’s authority over immigration issues.
At the time, Republican Attorney General Alan Wilson said the state had “a strong opinion this law is constitutional and we’re prepared to defend it to the U.S. Supreme Court if we have to.”
Wilson spokesman Mark Powell declined to comment on the agreement today, but pointed to a section of it summarizing the state’s view. That part essentially said that while state officials didn’t agree with earlier court rulings about the issue they entered into the agreement only because they recognize the futility of further litigation.
State Sen. Larry Martin (R-Pickens), who pushed the bill, essentially agrees. “It’s probably going to just cost us more to litigate it for what we would receive in the end,” he says, adding that the U.S. Supreme Court’s decision on the Arizona law already affected the South Carolina legislation. He says that while cops who think someone might be in the country illegally can’t detain them for that reason alone, they should still make a phone call and run their name or address through the federal Immigration and Customs Enforcement database if they can. “I’ve always maintained that we ought to call them anyway and at least make them answer the phone,” he says.
Plaintiffs in the lawsuit are calling the agreement a victory.
“It was a draconian law,” says Victoria Middleton, director of the American Civil Liberties Union of South Carolina. “We’re glad that it makes very clear that local law enforcement have to respect the Constitution. It’s taken a long time to work this out, but I think it will be good for the people who were potentially going to be profiled or maybe unduly fearful of being detained improperly.”
For Andre Segura, a staff attorney at the Immigrants’ Rights Project at the ACLU, what’s happened here is more indication that states are rearing back from once ambitious efforts to pass anti-immigrant-related laws. In 2011, five states other than South Carolina passed laws similar to Arizona’s, but since then no state or locality has passed anything similar, he says.
“What’s notable is that since then the wave has sort of gone the other way,” he says. “It’s sort of a sea change.” For instance, Segura says for the longest time only three states granted drivers licenses without regard to immigrant status, and by last year nearly a dozen states were doing it.
Not everyone is pleased about such changes.
Upon hearing of the proposed agreement on South Carolina’s law, Upstate activist Roan Garcia-Quintana said it was “a sad day in South Carolina.” The outspoken Cuban-born U.S. citizen runs an Upstate group called Americans Have Had Enough, and he vocally supported passage of the 2011 bill.
“It neuters the whole law,” he says about the recent agreement. “We’ll have to pass a new law to counter this crap again.”
For his part, Garcia-Quintana doesn’t think South Carolina’s leadership has been doing enough to keep illegal immigrants out of the state as it is. He referenced a recent town hall event U.S. Rep. Mick Mulvaney (R-Indian Land) held about immigration reform entirely in Spanish to a group of Latinos, and accused the congressman of talking to “a bunch of illegal aliens.”
Garcia-Quintana made headlines last year when media reported he was working on a steering committee for Haley’s re-election campaign while a lifelong member of the Council of Conservative Citizens, and told the City Paper he didn’t condone interracial marriage. (He says he’s not a member of the CCC anymore, mainly because they haven’t been active enough and are full of hot air.)
U.S. District Judge Richard Gergel of Charleston must approve the agreement before anything in it can go into effect.
This post has been updated.
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