In Reversal, Federal Judge Clears South Carolina Immigration Law’s ‘Show Me Your Papers’ Provision

A South Carolina federal judge today cleared a previously blocked provision of the state’s immigration law that requires police to check the immigration status of lawfully stopped individuals if they have reason to believe the individual is in the country illegally.

U.S. District Judge Richard Gergel reconsidered his December 2011 ruling in light of the U.S. Supreme Court’s decision in June allowing the similar “show me your papers” provision in Arizona’s immigration law to stand — for now. Gergel held today that he was obligated to unblock the provision in light of the U.S. Supreme Court’s precedent, but he made clear that the high court’s decision left the door wide open for future challenges once the law goes into effect:

The Court explained that, where “[t]here is a basic uncertainty about what the law means and how it will be enforced,” it would be “inappropriate to assume [the provision] will be construed in a way that creates a conflict with federal law.” As a result, the Supreme Court held that enjoining the Arizona statute on the basis of a facial challenge was not proper, though the Court made a point not to “foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” [… ]

This litigation is only at the preliminary injunction stage, and this Court’s decision to dissolve the injunction regarding these status-checking provisions does not foreclose a future as applied challenge based upon subsequent factual and legal developments.

The upshot of Gergel’s ruling is that if an officer has proper grounds to stop somebody suspected of other criminal activity, and in the course of that stop, develops “reasonable suspicion” that the person is in the country illegally, the officer is required to make “reasonable efforts” to determine that person’s immigration status. But the Supreme Court made clear in its June decision that this provision should not be used to stop people because they are suspected to be in the country illegally, nor should a officer prolong a police stop solely to determine immigration status. The Supreme Court explained:

To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

One of the main concerns about “show me your papers” provisions is that they will almost certainly lead officers to racially profile. This argument was not at issue in either of these decisions, but it is likely to be a basis for future challenges.

Gergel also upheld injunctions on several other provisions, including those that would make it illegal not to carry immigration papers, and criminalize transporting or housing illegal immigrants. The parts of the law left in place after Gergel’s initial ruling went into effect Jan. 1, including a provision that requires businesses to check the immigration status of new employees through a federal system. The ruling now clears the way for the state to begin police checks, at least until another lawsuit challenges that the state’s enforcement of that provision.