Coalition Files Lawsuit to Stop Escondido's Anti-Immigrant Ordinance
In response to a flagrantly unconstitutional ordinance passed by the Escondido City Council on October 18, 2006, a coalition of civil rights groups filed a federal lawsuit November 3, 2006. The complaint seeks to invalidate the ordinance that requires landlords to determine the legal status of their tenants, or face fines and suspension of business licenses.
The suit was filed only after a demand letter delivered to the city attorney failed to yield a positive response from the city. A request for a temporary restraining order was filed on November 7, 2006, and a hearing on that request is scheduled for November 16, 2006. The declarations that accompanied the TRO request and the Escondido City Attorney's staff report are available on this site as well.
On November 20, 2006, the TRO was obtained from US District Judge Houston.
The ordinance is riddled with constitutional flaws and ignores the subtleties, complexities, and primacy of federal immigration law. The ordinance will have, and has already had, the effect of compelling landlords to deny housing to persons based on their race or national origin. Anyone who looks or sounds foreign — regardless of their citizenship or immigration status—stands to be excluded from living in Escondido as a result of this ordinance.
The ordinance places landlords in the impossible position of either violating the ordinance and facing unreasonable penalties, or violating state and federal laws if they comply with the ordinance.
Members of the Coalition
The coalition is comprised of the American Civil Liberties Union (ACLU, both the affiliate of San Diego & Imperial Counties and the Immigrants' Rights Project of the national ACLU), the Fair Housing Council of San Diego, the Mexican American Legal Defense and Educational Fund (MALDEF), People for the American Way, and two law firms, Cooley LLP, and Rosner & Mansfield, LLP.
Background
On August 16, 2006, at an Escondido City Council meeting, Councilmember Marie Waldron introduced the concept of adopting an ordinance making it illegal for landlords to rent to "illegal aliens." The council directed the city attorney to prepare an ordinance and/or policies "to regulate overcrowding, renting to illegal aliens, and on-street parking restrictions." The only one of these issues addressed by the city attorney's office was renting to illegal aliens, or, in the words of the ordinance, "harboring illegal aliens."
The council voted 3-2 to approve the ordinance at first reading on October 4, 2006, with minor amendments. On October 18, 2006, an amended version of the ordinance received one more reading, and was adopted, again by a 3-2 vote. Voting in favor of the ordinance were Councilmembers Marie Waldron, Sam Abed and Mayor Pro Tem Ed Gallo. Voting to oppose the ordinance were Mayor Lori Holt Pfeiler and Councilmember Ron Newman.
The council majority declared that civic ills such as crime and overcrowded neighborhoods were due to the presence of "illegal aliens," though the data they said they relied on provides no evidence or support for that conclusion at all.
The ordinance was patterned largely after portions of an ordinance adopted in Hazelton, Pennsylvania on July 13, 2006. That ordinance's enforcement has been suspended by a court order pending a federal lawsuit challenging it on several constitutional grounds.
Provisions of the Ordinance
Any of the following activities would violate the ordinance, if done with "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of the law, unless such harboring is otherwise expressly permitted by federal law":
- To "let, lease or rent a dwelling unit to an illegal alien";
- To "suffer or permit the occupancy of the dwelling unit by an illegal alien";
- Within five business days after receiving written notice from the city demanding whatever information it asserts is necessary to comply with the demand, to fail "to provide the City with identity data needed to obtain a federal verification of immigration status" of a tenant;
- Within ten business days after receiving written notice from the city of a violation, to fail to correct the violation.
The ordinance would deny or suspend the Escondido business license of a rental property owner who is alleged to be in violation of the ordinance, without any hearing prior to a denial or suspension of the license. This provision prevents a landlord from collecting any rent or other form of compensation. If a landlord is found to be in violation more than once (which could result from not taking action more than one day after required to do so by the ordinance, since each day that passes and each alien that is "harbored" constitutes a separate violation), s/he would be fined up to $1000 per violation per day, or a jail term of six months, or both.
Additionally, if a landlord actually removes an "illegal alien" from a rental property, the denial or suspension of the landlord's business permit continues until one day after the landlord submits an affidavit to the city that confirms that the violation has ended and also includes the new "address and other adequate identifying information for the illegal aliens who were the subject of the complaint." (The idea with this provision is that the "illegal aliens" will be hounded from any apartment within Escondido that they moves to, until they leave Escondido altogether.)
Similarly, the ordinance does not provide a tenant or subtenant that the city believes to be an "illegal alien" with any notice or with a chance to be heard as to their right to be present in the United States.
Why the Ordinance is Unconstitutional and Illegal
- Federal Preemption
The coalition maintains that the ordinance is unconstitutional and preempted by federal law, since the federal government exclusively is charged with enforcing immigration laws. The ordinance turns landlords into de facto cops and snitches, giving them federal law enforcement responsibilities that neither police officers nor sheriffs must bear.
- Due Process
The ordinance violates state and federal due process rights by failing to provide any procedures for a landlord or tenant to dispute any alleged violation before sanctions are imposed. If a violation is alleged, a landlord has only 10 business days to "correct" the violation, presumably by evicting the tenant, or face fines and other sanctions. Neither the landlord nor the tenant is given any means to contest the claim that the tenant is not lawfully present in the United States.
- Anti-Discrimination and Fair Housing Laws
Most people who are likely to lose their housing because of this ordinance are Latinos, who, as of 2004, represent 42% of the city's population. The ordinance, then, will have a disproportionate adverse impact on Latinos and other minority communities, and will have the effect of segregating the city. Both these factors represent the violation of multiple state and federal laws.
- State Law Preemption and Impairment of Contracts
Even if a tenant has fully paid rent and/or holds a lease agreement, and even if there are members of the family who live in the housing unit who are citizens or lawful residents, the ordinance gives landlords only ten days to "correct the violation," presumably by evicting the tenant who is allegedly not lawfully present in the US. This is in direct conflict with the procedural rights set forth in California's Constitution and statutes and imposes a new basis for eviction proceedings that is not authorized by state law. The ordinance, then, is in direct conflict with landlord-tenant laws that contain strict standards for evictions. The California Constitution holds that non-citizens have the same property rights as citizens. The US Constitution's contracts clause protects both parties who enter into a contract in good faith.
- Abuse of Police Power and Equal Protection
The ordinance creates offensive discrimination on a pretextual justification that undocumented immigrants are responsible for social problems such as overcrowding and crime. In fact, the only study on which the City purports to rely says nothing about citizenship or immigration status and says instead that Escondido needs more affordable housing. Also, crime has been falling in Escondido.
Backers of the ordinance might say that the it specifically prohibits complainants from basing their suspicions that a tenant might not be lawfully in the United States on race or ethnicity. But people who live in the real world are clear that there would be very few other factors that would lead someone to question a resident's legal status. In any event, because the ordinance prohibits only complaints based "solely" or "primarily" on race, it does not rule out enforcement based in large part on race and thus opens the door to race-based complaints.
Plaintiffs
- Roy and Mary Garrett, husband and wife, own multiple rental units in Escondido. The Garretts do not know the immigration status of their present tenants, nor do they feel they are capable of making such determination. As a matter of policy, they do not intend to ask their tenants or tenant applicants their immigration status, or gather any identity data. They use written lease agreements that expressly state the terms and conditions under which they can evict a tenant or terminate a tenancy.
- Jane Doe 1 arrived in the United States from Mexico in or about 1994. She rents an apartment in Escondido, in which she has lived since 2001. She has minor children who are US citizens and who attend school in Escondido. She is gainfully employed.
- Jane Doe 2 arrived in the United States from Mexico in or about 1987. She rents an apartment in Escondido, in which she has lived since 1996. She has three minor children who are US citizens and who attend school in Escondido. She is gainfully employed.
- The Escondido Human Rights Committee (EHRC) advocates for the human rights of all persons in Escondido, educates the community regarding human rights, and violates human rights violations in the city. The organization does not require its members to prove their citizenship, residency or immigration status as a condition to membership. Since the ordinance has created great hostility towards the Latino community in Escondido, it adversely affects the work and mission of the organization. EHRC has received numerous reports from its members and other Escondido residents that they have been subjected to discrimination since the ordinance was adopted, including some landlords demanding proof of citizenship or demanding that tenants leave the premises for fear that the landlords may be found to violate the ordinance.