By: Kristina Bergman

Impacts of SB1718

“Over 425,000 citizens in Florida live with a family member who is undocumented.” – Silvana Caldera, ACLU[1]

The Florida legislature enacted SB1718 on July 1, 2023, inspiring a wave of fear and concern among immigrant communities, immigrants’ rights advocates, business owners, and Florida residents.[2] Among the immigrant-unfriendly changes created by SB1718 is the criminalization of transporting immigrants into Florida who have entered the country in violation of federal immigration law and have not been subject to federal inspection.[3] Penalties include 5 -15 years in prison.[4] At least three people have already been arrested pursuant to this law during traffic stops.[5] Many parents fear being arrested while taking their children to school or heading to the grocery store.[6]

“Being a migrant is not a crime.”- Juan Sabines, Mexican Consul in Orlando, says after Mexican citizens were arrested pursuant to SB1718 in Hernando County during a traffic stop.[7] The individuals traveled to Florida to work.[8]

FWAF et. al. v. Ron DeSantis et. al.

Standing & Causes of Action

On July 17, 2023, Farmworkers Association of Florida (FWAF) and some of the organization’s members filed a complaint in Florida’s Southern District Court against Governor Ron DeSantis, Florida Attorney General Ashley Moody, Florida Statewide Prosecutor Nicholas Cox, and each of the State Attorney’s for Florida’s Circuit Courts,[9] alleging Section 10 of SB1718 is impermissibly vague and is preempted by federal immigration law.[10]

The complaint asserts that SB1718 injures FWAF’s members by interfering with their ability to travel, live, and work.[11] Furthermore, SB1718 injures FWAF as an organization by enabling unlawful arrest of their members, making it more difficult for the organization to carry out its mission because it is dealing with the effects of SB1718 on its members, and deterring members from paying dues as well as participating in membership activities.[12]

The plaintiffs argue Section 10 of SB1718 violates the U.S. Constitution’s Supremacy Clause because it conflicts with federal immigration law.[13] Congress explicitly granted the Federal government power to create immigration policy through the Immigration and Naturalization Act.[14] SB1718 is therefore “an impermissible state regulation of immigration.”[15] The Department of Justice is currently suing Texas for a similar bill, SB 4, also on preemption grounds.

Additionally, FWAF et al. argue Section 10 of SB1718 violates the Fourteenth Amendment Due Process Clause by being impermissibly vague.[16] The law’s confusing use of terms, such as “inspection,” in a seemingly different way than they are used in federal immigration law leaves the public unclear about what conduct is prohibited and may result in “arbitrary and discriminatory enforcement.”[17]

Dismissal of claims against DeSantis

On December 21, 2023, Judge Altman dismissed the claims against defendant Governor DeSantis without prejudice for lack of standing and because of sovereign immunity.[18] The judge agreed with the governor’s argument that because the governor does not enforce the law, unlike the other defendants, the requested remedy (here, an injunction against him), would not redress the plaintiffs’ harms and fails to satisfy the Ex Parte Young sovereign immunity exception for “the state official….responsible for enforcing the allegedly unconstitutional scheme.”[19]

Dismissal of motion for plaintiffs to proceed anonymously

On February 9, 2024, Judge Altman issued an order denying a motion for the individual plaintiffs to proceed anonymously because the plaintiffs’ right to privacy did not outweigh the “customary and constitutionally-embedded presumption of openness in judicial proceedings.[20]” Under the totality-of-the-circumstances Chiquita test used to evaluate the plaintiffs’ privacy interests, the judge determined (1) the plaintiffs are challenging government activity; (2) would not be compelled, absent anonymity, to disclose information of utmost intimacy, which is reserved for highly personal circumstances such as abortion; and (3) would be compelled, absent anonymity, to admit intent to engage in illegal conduct and thus risk criminal prosecution.[21] This, paired with how there are no minor plaintiffs or “real threat” of physical harm absent anonymity, resulted in the decision that the plaintiffs’ privacy interests did not outweigh the presumption that the plaintiffs will use their real names.[22]

Paths Forward

Plaintiffs proceeding without anonymity

Understandably, individual plaintiffs may not want to proceed without the protection of anonymity for fear of harassment and violence. Anyone who witnessed Marjorie Taylor Greene at the recent State of the Union address may feel the state of immigration-related rhetoric during this hyper-polarizing election season should rise to the level of social stigma that the court could recognize as worthy of protecting through use of fictitious names. However, precedent suggests the balancing test would likely only tip in favor of plaintiffs’ privacy interests if they could assert that violence toward undocumented immigrants is prevalent and rising.[23]

The defendants have not challenged FWAF’s standing as an organization. If they were to do so, the judge would likely side with the plaintiffs because they assert the injury of diverting resources from its intended mission, like the organization in Georgia Latino Alliance for Human Rights v. Governor of Georgia, who had standing in the face of a similar law due to its service to the Latino community and diverting time and resources to educating affected members about the new law.[24]

Other forms of advocacy

Many of the individuals affected by this bill do not have the ability to vote to advocate for their interests. Therefore, anyone who can vote to decide Florida lawmakers, please consider who voted for and against SB1718 when asserting your right.

Additionally, pressure your lawmakers to stop using undocumented immigrants as a political bargaining chip and develop a path to citizenship for undocumented Americans so fewer people are vulnerable to bigoted bills like SB1718.

Lastly, donate or volunteer with the nonprofit organizations who serve the communities most affected by SB1718, such as Americans for Immigrant Justice, American Immigration Council, ACLU of Florida, Southern Poverty Law Center, Farmworkers Association of Florida, Legal Aid Society of Palm Beach County, and The Guatemalan-Maya Center.

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[1] Silvana Caldera, Florida’s Increasingly Anti-Immigrant Policies Hurt All of Us, ACLU, https://www.aclufl.org/en/news/floridas-increasingly-anti-immigrant-policies-hurt-all-us (last visited 3/10/2024).

[2] Id.

[3] SB1718 Section 10

[4] SB1718

[5]Syra Ortiz Blanes & Mary Ellen Klas, The same FHP troopers have made the only 3 arrests under enhanced human-smuggling law, Miami Herald, https://www.miamiherald.com/news/local/immigration/article280125839.html (last visited March 10, 2024).

[6] Caldera, supra note 1.

[7] Blanes, supra note 5.

[8] Id.

[9] FWAF et. al. Compl. 2-15, ECF No. 1.

[10] FWAF et. al. Compl. 16-26, ECF No. 1.

[11] FWAF et. al. Compl. 6-8, ECF No. 1.

[12] FWAF et. al. Compl. 27, ECF No. 1.

[13] FWAF et. al. Compl. 28-29, ECF No. 1.

[14] FWAF et. al. Compl. 28, ECF No. 1.

[15] FWAF et. al. Compl. 29, ECF No. 1.

[16] FWAF et. al. Compl. 28-31, ECF No. 1.

[17] FWAF et. al. Compl. 30, ECF No. 1.

[18] Order Granting Mot. To Dismiss 1, ECF NO. 84.

[19] Order Granting Mot. To Dismiss 10, ECF NO. 84.

[20] Order Den. Mot. To Proceed Anonymously 18, ECF No. 86.

[21] Order Den. Mot. To Proceed Anonymously 3-14, ECF No. 86.

[22] Order Den. Mot. To Proceed Anonymously 14-18, ECF No. 86.

[23] Id.

[24] Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (C.A.11 (Ga.), 2012).