HB 4156 (Immigration) is Likely Unconstitutional

HB 4156 enacted two new statutes (21 O.S. §1795 and 22 O.S. §988.25) effective July 1, 2024. The first statute established a new State criminal charge which could be filed against any illegal alien who was found within the State. HB 4156 has drawn strong criticism from law enforcement, including expressions of concern about the potential for allegations of racial profiling. The Constitutionality of HB 4156 was also questioned in light of a United States Supreme Court opinion which held that States have no authority to enact State statutes which criminalize violations of Federal immigration laws. Arizona v. United States, 567 U.S. 387 (2012).

A Federal Judge recently issued a preliminary injunction which bars enforcements of the new HB 4156 statutes. United States v. Oklahoma, No. 24-CV-511 (W.D. Okla. June 28, 2024). A preliminary injunction is just that – preliminary (and not final). It will stay in place until a final ruling is issued regarding the constitutionality of HB 4156. It is expected that Oklahoma will appeal the issuance of the preliminary injunction to the 10th Circuit Court of Appeals. It is also expected that the 10th Circuit will not disturb the injunction during the appellate process. While the 10th Circuit has no authority to overrule a United States Supreme Court precedent, the 10th Circuit’s final ruling can be appealed to the United States Supreme Court. It is worth noting that Texas adopted similar legislation and is also involved in similar litigation. A preliminary injunction was issued against Texas in February. Texas’ appeal related to that injunction is pending before the 5th Circuit Court of Appeals.

We may know within the next year whether the United States Supreme Court will agree to hear an appeal related to the Oklahoma and/or Texas legislation. If it does, a final decision may not be issued until late 2025 or early 2026. For time being, HB 4156 is unenforceable.

Law Enforcement Value Added Services

OMAG is committed to being the go-to resource for our member law enforcement agencies to mitigate law enforcement claims and lawsuits. In recent times, law enforcement related claims and lawsuits have increased dramatically. To mitigate law enforcement liability, OMAG offers many Value Added Services (VAS) to its members. Some of these include:

• Lexipol Police Policy Manual: Lexipol provides Oklahoma-specific, customizable Police Policy Manuals, along with timely updates, based on federal and state law, regulations, and best practices.

• Lexipol Daily Training Bulletins (DTBs): These are short, scenario-based training modules, modeled after your Department’s Policy Manual, which are designed to provide training specific to your Department’s Policy Manual.

• ABLE Oklahoma: ABLE is a national hub for training, technical assistance, and research, all with the aim of creating a police culture in which officers routinely intervene and accept interventions, as necessary, to prevent misconduct, avoid police mistakes, and promote officer health and wellness. OMAG strongly encourages all OMAG law enforcement agencies to become an ABLE certified agency and will assist your agency to become ABLE certified.

• OMAG LELA Training Series: This is an intensive training series on law enforcement liability for select law enforcement personnel around the State. The OMAG LELA Training Series is typically held twice a year and each series consists of three training sessions, each consisting of traditional classroom training and roundtable discussions, utilizing case law, body cam, and other materials from real-life incidents.

• Online training through LocalGovU: Courses are available for public safety and law enforcement employees, many of which offer CLEET credit.

• Police Officer/Dispatcher Background Investigation Forms: Background investigations are vital to ensure that a Police Department is hiring qualified, competent, honest, and capable officers. OMAG has put together some sample forms, letters, checklists, questionnaires, etc. to make the background investigation easier for our members.

• Onsite training: Our law enforcement training is specifically tailored to the needs of police departments.

For all your law enforcement needs or questions, contact Kevin J. Katz, Law Enforcement Specialist, at kkatz@omag.org or (405) 657-1400 or Ambre C. Gooch, Associate General Counsel, at agooch@omag.org or (405)657-1447.

OMAG's Police Liability Update (August 2024)