On October 12, 2011, a coalition of immigrant rights groups and individual immigrants filed a class action lawsuit in the U.S. District Court for the District of South Carolina, Charleston Division, against the State of Carolina and Charleston County. The plaintiffs, represented by the ACLU of South Carolina, the national ACLU's Immigrants' Rights Project, the Southern Poverty Law Center, the National Immigration Law Center, the Mexican American Legal Defense and Educational Fund (MALDEF), the South Carolina Appleseed Legal Justice Center, LatinoJustice PRLDEF, and private counsel, filed their suit under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, claiming that South Carolina's comprehensive immigration law, Act 69, violated the federal Constitution.

Specifically, the plaintiffs challenged Sections 1, 4, 5, 6 and 7 of the Act, which require state and local law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest whenever they have a "reasonable suspicion" that the individual lacks immigration status, require them to determine the immigration status of all people being detained in prisons or jails, allow them to arrest individuals solely for failing to carry registration documents, make it a crime to harbor or transport an undocumented immigrant or to be harbored or transported by others if one is an undocumented immigrant, and impose civil liability on the police for failing to enforce its provisions to the maximum extent possible. They claimed that these sections are preempted by federal law and in violation of the Fourth and Fourteenth Amendments, and further claimed that the Act as a whole is preempted. The plaintiffs sought a declaration that the Act violated the Constitution and a peremptory injunction barring its enforcement before it came into effect on January 1, 2012.

(In passing Act 69, South Carolina joined Utah, Indiana, Georgia and Alabama in enacting immigration laws similar to Arizona's Senate Bill 1070. For the case challenging the Arizona law, see United States v. Arizona (IM-AZ-0015); for the case challenging Utah's HB 497, see Utah Coalition of La Raza v. Herbert (IM-UT-0002); for the case challenging Indiana's SEA 590, see Buquer v. City of Indianapolis (IM-IN-0002); for the case challenging Georgia's HB 87, see Georgia Latino Alliance for Human Rights v. Deal (IM-GA-0007); and for cases challenging Alabama's HB 56, see United States v. Alabama (IM-AL-0005), Hispanic Interest Coalition v. Bentley (IM-AL-0006), and Parsley v. Bentley (IM-AL-0007).)

The district court (Judge Richard M. Gergel) originally issued an order directing the parties to brief the issue whether the United States should be joined as a necessary party; the court set the issue aside when the United States filed a related action. See United States v. South Carolina (IM-SC-0002).

After a joint hearing on motions for summary judgment by plaintiffs in this case and by the federal government in United States v. South Carolina (IM-SC-0002), on December 22, 2011, the Court (Judge Richard M. Gergel) issued an order in large part granting both motions. Lowcountry Immigration Coalition v. Haley, No. 2:11-cv-02779, 2011 WL 6973241, 2011 U.S. Dist. LEXIS 151549 (D.S.C. Dec. 19, 2011). It enjoined Sections 4, 5 and 6 of the Act, but declined to enjoin Sections 1 and 7 or the Act as a whole, finding that the plaintiffs did not have standing to challenge them.

Defendants appealed to the Fourth Circuit, but the case was stayed until the Supreme Court issued its decision in United States v. Arizona (IM-AZ-0015), which dealt with a very similar statute in Arizona. That occurred in June 2012, 132 S. Ct. 2492 (2012); the Court struck down much of the Arizona statute, but declined to facially review the "show me your papers" provision. Shortly thereafter, the Court of Appeals issued a "limited remand" in this matter, directing the district court to decide in the first instance if its order should be adjusted in light of the Arizona opinion.

On November 27, 2012, the district court left in place most of its prior preliminary injunction, again the sections of the law that aimed to criminalize unlawful presence and giving a ride or renting an apartment to an undocumented immigrant. But the district court followed the Supreme Court's lead on the "show me your papers" provision. It noted: "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. In the course of this litigation, the parties will have the opportunity to conduct discovery regarding the actual practices and procedures associated with the implementation of Sections 6(A) and 6(C)(1), and this Court can then address these issues with the benefit of a full record."

On December 7, 2012, the State of South Carolina filed an interlocutory appeal, challenging the district court's November 27 order. On July 13, 2013, the Fourth Circuit, per Judge Davis, upheld the preliminary injunction issued by the lower district court. The order would enjoin enforcement of Sections 4, 5, and 6(B)(2) of the law. Section 4 made it unlawful for a person who was illegally present in the United States to conceal, harbor, and transport herself from detection, and it made it illegal for a third party to assist in that endeavor. Section 5 made it illegal to fail to carry and illegal alien registration card, and 6(B)(2) made it illegal to display false identification.

South Carolina tried to argue that the Plaintiffs did not have a private right of action under the Supremacy Clause. Judge Davis dismissed this argument, pointing out that there is a long history of citizens seeking, and obtaining, injunctive relief against state laws that are preempted by federal laws. South Carolina also argued for Younger abstention, a doctrine which provides that federal courts should not exercise their jurisdiction over a matter if significantly interferes with a state judicial proceeding or prosecution. Judge Davis pointed out that no such proceeding or prosecution was ongoing here. He further argued that injunctive relief is particularly compelling where constitutional rights are at issue as they are here.

On the merits, Judge Davis affirmed the lower court's finding that all three sections were preempted. Judge Dvais noted that there was no presumption against preemption because immigration is regulated heavily by the federal government. Judge Davis then established that each section of the law at issue was preempted.

Section 4 of the Act was preempted because the Supreme Court in Arizona v. United States stated that unlawful presence is not a criminal offense. Section 4 made it illegal for unlawful aliens to shelter, harbor, or conceal oneself. This essentially criminalized unlawful presence. Judge Davis noted that Congress is unwilling to do this; instead; it has established a civil proceedings system that facilitates the removal of unlawful aliens. For the subsections of Section 4 dealing with third parties aiding unlawful residents, Judge Davis agreed with the district court that this area is so heavily regulated by federal law that there is no room left for this state regulation.

Judge Davis also found Section 5 to be preempted. The Supreme Court reviewed a similar statute in Arizona v. United States and there held that there was federal law governing the registration of unlawful aliens. It was thus unnecessary for there to be state law on the same issue. Judge Davis also found Section 6 to be preempted by a host of federal laws governing false and fraudulent identification.

After about 6 more months of litigation, Judge Gergel issued final judgment. Judge Gergel permanently enjoined South Carolina from enforcing Sections 4, 5, and 6(B)(2) of Act 69. Section 7 and the remainder of Section 6 would be enforced according to the guidelines stipulated in a memo by South Carolina's Attorney General. The memo stipulated that, under Section 6, officers could not prolong stops based on a suspicion of a person's immigration status. It also said that, under Section 7, officers could not prolong the detention of an individual to ascertain their immigration status or hold individuals in detention because of a belief about their immigration status. Not even to transfer them to federal custody. The plaintiffs agreed to dismiss their claims against Sections 6 and 7 without prejudice.

On July 7, 2014, Judge Gergel granted a motion to award $98,000 in attorneys' fees to the plaintiffs' lawyers.

Christopher Schad - 11/29/2012
Salvatore Mancina - 04/10/2017


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