United States v. South Carolina

Citation840 F.Supp.2d 898
Decision Date22 December 2011
Docket NumberCivil Action Nos. 2:11–cv–2958,2:11–cv–2779.
CourtU.S. District Court — District of South Carolina
PartiesUNITED STATES of America, Plaintiff, v. State of SOUTH CAROLINA and Nikki R. Haley, in her official capacity as the Governor of the State of South Carolina, Defendants, Lowcountry Immigration Coalition, et al., Plaintiffs, v. Nikki R. Haley, in her official capacity as the Governor of the State of South Carolina, et al., Defendants.

840 F.Supp.2d 898

UNITED STATES of America, Plaintiff,
v.
State of SOUTH CAROLINA and Nikki R. Haley, in her official capacity as the Governor of the State of South Carolina, Defendants,
Lowcountry Immigration Coalition, et al., Plaintiffs,
v.
Nikki R. Haley, in her official capacity as the Governor of the State of South Carolina, et al., Defendants.

Civil Action Nos. 2:11–cv–2958, 2:11–cv–2779.

United States District Court,
D. South Carolina,
Charleston Division.

Dec. 22, 2011.






Preempted


S.C.Code 1976, §§ 16–9–460, 16–17–750, 17–13–170.

[840 F.Supp.2d 904]

William Norman Nettles, Barbara Murcier Bowens, U.S. Attorney's Office, Columbia, SC, Arthur Robert Goldberg, William Scott Simpson, U.S. Department of Justice, Washington, DC, for Plaintiff.


James Emory Smith, Jr., Robert Dewayne Cook, SC Attorney General's Office, Columbia, SC, for Defendant.

ORDER

RICHARD MARK GERGEL, District Judge.

This matter comes before the Court on motions for preliminary injunction filed by plaintiffs in the two above-captioned matters. These actions arise out of legislation adopted by the South Carolina General Assembly on June 27, 2011 (hereafter referred to as “Act 69” or “the Act”). Act 69 attempts to address a broad range of immigration related issues through, inter alia, the adoption of various state criminal provisions, employer sanctions and mandates to local law enforcement regarding the identification and apprehension of persons unlawfully present in the United States. Plaintiffs in the two separate actions assert similar, but not identical, constitutional challenges to various sections of Act 69 and seek to preliminarily enjoin the implementation of portions of the challenged state statute, which will otherwise become effective on January 1, 2012. All parties to this action have submitted extensive briefs relating to the pending motions for preliminary injunction, and the

[840 F.Supp.2d 905]

Court heard several hours of oral argument on December 19, 2011. The Court addresses these motions below.

Factual Background

The South Carolina General Assembly took up the matter of state immigration legislation in the 2011 legislative session because of a perceived failure of the United States to “secure our southern border,” which “really jeopardize[s] our national security.” (Dkt. No. 29–25 at 13).1 The Act was designed to deal with “issues regarding folks being in South Carolina unlawfully [and] not having proper identification.” ( Id. at 2). The South Carolina Senate conducted four public hearings across the State in the fall of 2010 regarding local problems with unlawful immigration. ( Id.)

In the course of legislative debate, legislators acknowledged that the proposed legislation might be subject to legal challenge. One of the Senate sponsors of the bill stated during floor debate that “we get real close to the line in some respects,” and a supporter stated, “since there is a severability clause, I want to go ahead and be as muscular and push as hard as we can in terms of what our state rights are.” (Dkt. No. 29–25 at 11; Dkt. No. 29–26 at 24). Another senator, who opposed the legislation, stated during floor debate that the bill was “clearly unconstitutional” and would “subject [ ] this state government to attorneys' fees.” (Dkt. No. 29–26 at 37–38).

One of the bill's sponsors acknowledged during Senate floor debate that the State had the option of entering into a written agreement with the federal government regarding immigration enforcement (known as “287(g) agreements”) and that “it would be much better” if an agreement “had been entered into between the Chief of SLED 2 and the federal government.” (Dkt. No. 29–25 at 14). Rather than attempting to enter into a 287(g) agreement with the federal government as expressly authorized by the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1357(g)(1), the State elected to go forward with its own immigration bill, which included state criminal sanctions, because it was “really important” to have State “control.” (Dkt. No. 29–25 at 14). Supporters of the bill voiced the hope that the Act would encourage persons unlawfully present in South Carolina to find “a different state to go to.” (Dkt. No. 16–1 at 4 & n.1; Dkt. No. 29–26 at 4). Supporters also stated their expectation that the Act would make the federal government's “phone ring [ ] off the hook.” (Dkt. No. 29–25 at 24).

The final bill for Act 69 contained twenty separate sections. Several sections closely track existing federal statutes relating to the harboring and sheltering of unlawfully present persons, possessing alien registration materials and making counterfeit picture identification materials. See Act 69, §§ 4(B) and (D), 5 and 15. The Act allows state enforcement and prosecution of what previously were exclusively federal offenses. Other provisions of the Act, apparently unique in American law, make it a state crime for unlawfully present persons to shelter, harbor or transport themselves. Id. § 4(A) and (C).

[840 F.Supp.2d 906]

Another section of the Act directs all state and local law enforcement officers making a traffic stop or arrest and having a “reasonable suspicion” that the person may be unlawfully present in the United States to “make a reasonable effort, when practicable, to determine whether the person is lawfully present in the United States.” Id. § 6(A). This section goes on to identify various “valid” forms of identification which create a presumption that the person is lawfully present in the United States. Id. § 6(B). If the person being arrested or stopped does not have one of these state-approved forms of identification in his or her possession, then the law enforcement officer “shall make a reasonable effort, when practicable, to verify the person's lawful presence in the United States.” Id. § 6(C). If the person is determined to be unlawfully present, state or local law enforcement officers are authorized to “securely transport the person to a federal facility in this State.” Id. § 6(C)(4).

The Act further addresses employer sanctions, establishing an elaborate scheme of employer licenses and making it unlawful for an employer to knowingly employ “an unauthorized alien.” Id. §§ 8–14. Another provision mandates the determination of whether any person arrested and detained at a jail or prison facility in South Carolina is unlawfully present in the United States. Id. § 7. An additional provision authorizes private rights of action against any political subdivision enacting an ordinance interfering with enforcement of Act 69 or violating the law intentionally. Id. § 1. The Act also establishes an Illegal Immigration Enforcement Unit within SLED and provides that the “director shall negotiate the terms of a memorandum of agreement with the United States Immigration and Customs Enforcement [ (“ICE”) ] pursuant to Section 287(g) of the federal INA as soon as possible after the effective date of this act.” Id. § 17(A) and (E). Finally, the Act contains a savings clause, severability clause and a section establishing the effective date of the Act. Id. §§ 18–20.

Act 69 was considered and approved by the South Carolina General Assembly during a time period in which a number of states adopted similar immigration statutes and then faced legal challenges to the newly adopted legislation in federal court. The first state to adopt a comprehensive immigration statute was Arizona. Portions of its statute relating to the failure to carry registration materials and the verification of immigration status of persons questioned in the course of traffic stops were preliminarily enjoined by the district court, and that decision was subsequently affirmed 2–1 by a panel of the Ninth Circuit. United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz.2010), aff'd,641 F.3d 339 (9th Cir.2011). The United States Supreme Court recently granted certiorari in that case. Arizona v. United States, No. 11–182, ––– U.S. ––––, 132 S.Ct. 845, 181 L.Ed.2d 547, 2011 WL 3556224 (U.S. Dec. 12, 2011).

On June 24, 2011, an Indiana federal district court temporarily enjoined portions of a new Indiana state law limiting the use by foreign nationals of consular I.D.s for identification and authorizing the making of warrantless arrests for non-criminal conduct. Buquer v. City of Indianapolis, 797 F.Supp.2d 905 (S.D.Ind.2011). Three days later, on June 27, 2011, a federal district court in the Northern District of Georgia temporarily enjoined portions of a newly adopted Georgia statute that created state criminal sanctions for harboring and transporting unlawful aliens and mandated verification of the immigration status of any person suspected of committing a crime. Ga. Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317 (N.D.Ga.2011). Subsequently,

[840 F.Supp.2d 907]

the Alabama district court and the Eleventh Circuit temporarily enjoined portions of an Alabama state immigration statute prohibiting the harboring or transporting of unlawfully present aliens and requiring the carrying of alien registration documents. United States v. Alabama, 813 F.Supp.2d 1282 (N.D.Ala.2011) and Hispanic Interest Coal. of Ala. v. Bentley, No. 11–2484, ––– F.Supp.2d ––––, 2011 WL 5516953 (N.D.Ala. Sept. 28, 2011), injunction pending appeal granted in part and denied in part,Nos. 11–14532, 11–14535, 2011 WL 4863957 (11th Cir. Oct. 14, 2011). The district court and the Eleventh Circuit, however, declined to grant a temporary injunction regarding a portion of the Alabama statute allowing for the verification of the immigration status of persons stopped by law enforcement officers. Id.

In the above-captioned action brought by the United States, only four of the twenty sections of Act 69 are challenged. The challenged sections include provisions in which the State of South Carolina essentially adopts federal statutes and creates new state criminal sanctions relating to the harboring and transporting of unlawfully present persons (Subsections 4(B) and (D)), the...

To continue reading

Request your trial
28 cases
  • In re Chrysler-Dodge-Jeep Ecodiesel Mktg.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 15, 2018
    ..., 732 F.3d at 1022–23."The regulation of immigration is the quintessential example of field preemption." United States v. S. Carolina , 840 F.Supp.2d 898, 913 (D.S.C. 2011) ; see also Pharm. Research & Mfrs. of Am. v. District of Columbia , 406 F.Supp.2d 56, 64–65 (D.D.C. 2005) (noting that......
  • Bauer v. Summey
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • October 21, 2021
    ...the relative 568 F.Supp.3d 585 positions of the parties until a trial on the merits can be held." United States v. South Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ). "A plaintiff seeking a p......
  • Rhoades v. Savannah River Nuclear Solutions, LLC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 3, 2021
    ...merely to preserve the relative positions of the parties until a trial on the merits can be held." United States v. South Carolina , 840 F. Supp. 2d 898, 914 (D.S.C. 2011), modified in part , 906 F. Supp. 2d 463 (D.S.C. 2012), aff'd , 720 F.3d 518 (4th Cir. 2013) (citing Univ. of Tex. v. Ca......
  • People v. Fuentes-Espinoza
    • United States
    • Court of Appeals of Colorado
    • January 17, 2013
    ...of unlawfully present aliens was preempted, based upon a very similar analysis. Id. at 1285–88.¶ 80 In United States v. South Carolina, 840 F.Supp.2d 898 (D.S.C.2011), modified, 906 F.Supp.2d 463 (D.S.C.2012), the court held that a South Carolina statute criminalizing the transportation of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT