State v. Lopez

• Decision Date: 08 May 2013
• Docket Number: No. 2012 KW 2043.,2012 KW 2043.
• Citation: 116 So.3d 1
• Parties: STATE of Louisiana v. Milton LOPEZ.
• Court: Court of Appeal of Louisiana — District of US

116 So.3d 1

STATE of Louisiana

v.Milton LOPEZ.

No. 2012 KW 2043.

Court of Appeal of Louisiana,

First Circuit.

March 21, 2013.

Rehearing Denied May 8, 2013.

Miguel A. Elias, Kenner, LA, for Relator Milton Lopez.

Camille A. Morvant, II, District Attorney, Jennifer F. Richard, Assistant District Attorney, James D. “Buddy” Caldwell, Attorney General, Colin Clark, Assistant Attorney General, for Respondent State of Louisiana.

Before KUHN, PETTIGREW, and McDONALD, JJ.

PER CURIAM.

[1 Cir. 2]Defendant, Milton Lopez, was arrested on suspicion of driving while intoxicated following a single-vehicle crash. Defendant had no driver's license on his person and was unable to produce documentation of his status in the United States. The State subsequently charged him by bill of information with operating a motor vehicle without proper documentation demonstrating he is lawfully present in the United States, a felony in violation of La. R.S. 14:100.13(A). Defendant filed a motion to quash, asserting that La. R.S. 14:100.13 is unconstitutional because it attempts to regulate immigration and, as such, is preempted by federal law. Following a hearing, the trial court denied the motion to quash. Defendant filed this writ application, seeking review of the trial court's ruling.¹ Finding no error in the trial court's conclusion, for these reasons, we deny relief.

The issue raised in this writ is whether La. R.S. 14:100.13 is preempted by federal law because, as implemented, it results in the regulation of immigration. Because it presents a question of law, it is subject to a de novo standard of review. See State v. Smith, 99–0606 (La.7/6/00), 766 So.2d 501, 504.

The provisions of La. R.S. 14:100.13 were enacted by Acts 2002, 1st Extraordinary Session, No. 46, § 1, in response to the 911 terrorist attacks. The Louisiana legislature found it imperative to enact state laws to complement federal efforts to uncover those who seek to use the highways of this state to commit acts of terror and to gain drivers' licenses or identification cards for the purposes of masking their illegal status in this state. SeeLa. R.S. 14:100.11(A) & (B).

La. R.S. 14:100.13 provides, in part, that:

A. No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.

[1 Cir. 3]B. Upon arrest of a person for operating a vehicle without lawful presence in the United States, law enforcement officials shall seize the driver's license and immediately surrender such license to the office of motor vehicles for cancellation and shall immediately notify the [Immigration and Naturalization Service] of the name and location of the person.

Defendant asks this court to reverse the trial court's ruling on the motion to quash and revisit our position on the relationship between La. R.S. 14:100.13 and federal law, in light of the recent opinion of Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), wherein the United States Supreme Court expressed concerns about the possible detention or holding of persons simply to verify their immigration status. Defendant maintains that La. R.S. 14:100.13 unlawfully infringes on the federal government's plenary power by attempting to regulate the area of immigration and, thus, violates the Supremacy Clause of the United States Constitution. SeeU.S. Const. art. VI, cl. 2.² Although he acknowledges several recent decisions of this court, in support of his position, defendant relies on State v. Lopez, 2005–0685 (La.App. 4th Cir.12/20/06), 948 So.2d 1121,writ denied,2007–0110 (La.12/7/07), 969 So.2d 619.

In Lopez, the fourth circuit determined that La. R.S. 14:100.13 was preempted by federal regulations. In reaching this conclusion, the fourth circuit found that La. R.S. 14:100.13 placed a burden on both legal and illegal aliens that exceeded any standard contemplated by federal immigration law. Lopez, 948 So.2d at 1125.

By contrast, in an en banc decision rendered subsequent to Lopez, this court addressed and rejected similar preemption arguments. See State v. Ramos, 2007–1448 (La.App. 1st Cir.7/28/08), 993 So.2d 281 (en banc), writ denied,2008–2103 (La.12/18/09), 23 So.2d 929. Noting that under 8 U.S.C. § 1304(e), federal law requires aliens eighteen years of age or over who are legally present in the United [1 Cir. 4]States to carry documentation of proof of alien registration at all times, this court disagreed with the fourth circuit's conclusion that La. R.S. 14:100.13 placed a burden on both legal and illegal aliens that is not contemplated by federal immigration law. Ramos, 993 So.2d at 287 (quoting State v. Reyes, 2007–1811 (La.App. 1st Cir.2/27/08), 989 So.2d 770, 776).

Turning to the U.S. Supreme Court's recent decision, see Arizona, 132 S.Ct. 2492, we note that under scrutiny was the Support Our Law Enforcement and Safe Neighborhood Act (S.B. 1070) enacted by the state of Arizona to address pressing issues related to the large numbers of aliens within its state borders without the lawful right to be present in the country. The United States filed suit against Arizona seeking to enjoin S.B. 1070. The question before the Court was whether federal law preempted and rendered invalid four separate provisions of S.B. 1070. Although the Arizona court concluded that Sections 3, 5(C), and 6 of S.B. 1070 were preempted, it held that it was improper to enjoin Section 2(B) before the Arizona state courts had an opportunity to construe it since there was no showing that enforcement of Section 2(B) in fact conflicted with federal immigration law and its objectives. See Arizona, 132 S.Ct. at 2510.³

According to the provisions of Section 2(B) of S.B. 1070, state officers are required to make a “reasonable attempt ... to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” SeeA.R.S. § 11–1051(B). The law also provides that “[a]ny person who is arrested shall have the person's immigration status determined before the person is released.” Id.; Arizona, 132 S.Ct. at 2507. The Court stated that to detain [1 Cir. 5]individuals solely to verify immigration status raises constitutional concerns, noting that it is a disruption of the federal framework to put state officers in the position of holding aliens in custody for possibleunlawful presence without federal direction and supervision. Arizona, 132 S.Ct. at 2509. While recognizing significant limitations on the authority of state or local enforcement officers to adopt the enforcement mechanism of S.B. 1070, the Court indicated that if Section 2(B) “only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.” Id. at 2509.

In his writ application, defendant specifically contends that because the Arizona court did not foreclose other preemption and constitutional challenges to the Arizona law, it is appropriate for this court to reconsider its position on this issue. Defendant asserts that, unlike the Arizona law, La. R.S. 14:100.13 does not merely afford state officers authorization to conduct a status check or detain a person until their immigration status is determined by federal immigration authorities, it makes it a felony for a person to operate a motor vehicle without documents demonstrating lawful presence. Thus, he urges, the actual effect of La. R.S. 14:100.13, when implemented, criminalizes unlawful presence. As a result, defendant avers that the Louisiana statute criminalizes “non-criminal conduct.”

In opposition to defendant's writ application, the State notes that defendant's entire preemption argument is predicated on the false assertion that La. R.S. 14:100.13 addresses only illegal immigrants. But the State points out that even when a non-resident alien or alien student present in the United States legally fails to carry his or her proof of lawful presence while operating a motor vehicle, that person also violates the statute. Thus, the State maintains there is no requirement [1 Cir. 6]under La. R.S. 14:100.13 that a violator must be an illegal alien since it addresses only proof that the alien motorist has a valid state-issued driver's license.

Federal law does not automatically preempt every state enactment which addresses aliens. A state statute related to immigration is preempted when there is either a constitutional, field, or conflict preemption. See De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 936, 47 L.Ed.2d 43 (1976) (superseded by statute on other grounds as stated in Chamber of Commerce of United States v. Whiting, ––– U.S. ––––, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011)). The mere fact that a state statute pertains to aliens does not mandate a finding of preemption. The Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power. Rather, the Court stressed “the fact that aliens are the subject...