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Louisiana Courts Dismiss Charges

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Immigrants' Rights Update, Vol. 21, Issue 3, April 25, 2007

Louisiana Courts Dismiss Charges under Law Prohibiting Driving without Lawful Presence, Citing Preemption and Enforcement Problems

By Melissa Crow

In Dec. 2006, the Louisiana Fourth Circuit Court of Appeal issued a landmark ruling affirming a lower court decision that threw out criminal charges against a man who had been charged under a Louisiana statute, LSA-R.S. 14:100.13, which makes it a felony for “alien students” and “nonresident aliens” to drive a vehicle without documentation demonstrating that their presence in the United States is lawful. The Fourth Circuit has jurisdiction over much of the greater New Orleans area — Orleans, St. Bernard, and Plaquemines Parishes.

Violators of the statute, which was enacted in 2002, face up to a year in jail, a fine of $1,000, or both. Through contacts with public defenders’ offices in Louisiana, as well as with private lawyers, immigrant rights advocates, and individuals charged with driving without lawful presence (“DWLP”), NILC has monitored the enforcement of the statute over the past approximately eight months. Existing evidence, including numerous police reports, strongly suggests that some police officers throughout the state are using the statute as a pretext to specifically target Latinos when the officers make traffic stops and arrests — to decide whom to stop based on whether or not they “look” Latino.  Many of those who have been stopped and arrested under the statute are Latinos who migrated to the New Orleans area to perform post–Hurricane Katrina cleanup and reconstruction jobs.

In its Dec. 20, 2006, decision granting a motion to quash DWLP charges against Neri Lopez, the Fourth Circuit reasoned that the DWLP statute “places a burden on both legal and non-legal aliens which exceeds any standard contemplated by federal immigration law” — i.e., it imposes a requirement regarding who must carry documents that exceeds what federal law requires, and the penalties it imposes are harsher than those provided for in federal law. State of Louisiana v. Neri Lopez, 948 So. 2d 1121 (La. Ct. App. 4th Cir. 2006). Accordingly, the court held that the statute is preempted by federal law.  Nevertheless, the New Orleans Police Dept. continued to make arrests under the statute until Feb. 6, 2007, when Police Superintendent Warren Riley issued a directive prohibiting them. The state government has asked the Louisiana Supreme Court to review the Fourth Circuit’s decision, a request that defendant Lopez has opposed. As of April 19, 2007, the Louisiana Supreme Court had not decided whether or not to hear the case.

The Louisiana Fourth Circuit’s decision has not put an end to enforcement of the DWLP law outside the circuit court’s judicial district, however. NILC, together with the Advancement Project, the Immigrants’ Rights Project of the American Civil Liberties Union Foundation, the ACLU Foundation of Louisiana, Friends and Families of Louisiana’s Incarcerated Children, the New Orleans Workers’ Center for Racial Justice, and Safe Streets–Strong Communities, submitted amici briefs in two DWLP cases pending in criminal courts in Jefferson Parish, which is to the immediate west of the three parishes that comprise the Fourth Circuit’s district and includes part of greater New Orleans.  These briefs elaborate on the reasons why the DWLP statute unlawfully infringes on the federal government’s plenary power over immigration, thus violating the Supremacy Clause of the U.S. Constitution.  

In De Canas v. Bica, 424 U.S. 351 (1976), the U.S. Supreme Court set forth three tests for determining whether a state statute dealing with non–U.S. citizens is preempted by federal law.  Briefly, such a state law must be invalidated if it (1) regulates immigration, which is the exclusive domain of the federal government under the Immigration and Nationality Act (INA), (2) operates in a field which Congress has occupied, or (3) otherwise conflicts with federal law.  A state statute that fails any one of these tests is preempted.

The Louisiana DWLP statute regulates immigration by requiring state and local law enforcement officials, who lack the expertise and training of federal officials in applying immigration law and verifying the authenticity of immigration-related documents, to make independent determinations about drivers’ immigration statuses and report drivers whom they arrest to the U.S. Dept. of Homeland Security (DHS). To do this, officers must first ascertain — through unspecified means — whether a driver qualifies as a “nonresident alien” or “alien student,” raising serious concerns about whether agents are engaging in racial or ethnic profiling in deciding whom to stop for alleged traffic violations in the first place. Neither of these categories is succinctly defined by federal immigration law, and many nonresident noncitizens and noncitizen students, as defined by the state statute, have lawful immigration status. After somehow concluding that a driver is an “alien student” or “nonresident alien,” an officer attempting to enforce the DWLP statute must determine whether the driver is carrying proof of lawful status. In most cases, officers construe a driver’s inability to produce immigration documents upon demand to mean that the driver lacks lawful immigration status, in which case the officer arrests the driver. And although the stated purpose of the DWLP statute is to fight terrorism, its true purpose is evident from the requirement that Louisiana law enforcement officers notify DHS of the names and locations of individuals whom they have arrested so that DHS can initiate removal proceedings against them.

The DWLP statute also fails the other De Canas tests, the amici briefs argue. With respect to the second test, the statute reflects overreaching by the Louisiana state legislature into the field of immigration regulation, which Congress occupied by enacting the INA. As for the third test, the DWLP statute interferes with the federal scheme for identifying individuals who are subject to removal and reporting them to the federal authorities.

In Jan. 2007, a court in Jefferson Parish issued an imported decision in which it adopted the arguments set forth in the amici brief, holding that the DWLP statute constitutes “an impermissible attempt to regulate immigration and conflicts with federal immigration law.” State of Louisiana v. Omar Barrientos, No. 06-1726 (La. 24th Jud. Dist. Ct. Jefferson Parish Jan. 31, 2007).

In a subsequent decision in State of Louisiana v. Juan Herrera, No. 467-763 “K” (La. Crim. Dist. Ct. Orleans Parish Feb. 1, 2007), a court in Orleans Parish focused on the use of racial profiling to enforce the DWLP statute. The decision includes excerpts of testimony from a New Orleans police officer who confessed that his training in immigration law was limited to a one-day seminar in 2006. The officer testified that he had arrested four or five Latino drivers pursuant to the statute, but that he did not know how many, if any, white, black, Asian, Middle Eastern, Indian, or Pakistani drivers he had arrested. He implied that he was most likely to ask Latino drivers about their immigration status, although he could not determine whether other drivers were lawfully present in the United States. Based on this testimony, the court concluded that “the defendant’s arrest pursuant to LSA-R.S. 14:100.13 was made without probable cause, because it was the result of a selective enforcement policy profiling, targeting and arresting Latino drivers.” The court deferred ruling on the preemption issue pending a decision by the Louisiana Supreme Court in the Lopez case.

Copies of the amici briefs mentioned above are available by contacting Karen Tumlin in NILC’s Los Angeles office.