Most Americans are unaware that being Hispanic, speaking Spanish, and being present in an area alleged to have a density of undocumented residents can now be enough to justify brief detention and questioning by immigration officers. This practice is being referred to as a “Kavanaugh stop,” named after a 2025 concurring opinion by U.S. Supreme Court Justice Brett Kavanaugh that established the legal precedent.
Under this standard, if my brother and I, who are Hispanic, were walking on the Eastside of Austin and ICE officers overheard us speaking Spanish, that could be grounds for detention. If either of us could not immediately prove citizenship, we could be physically detained and transported to an ICE holding facility. This is a nightmare scenario, but it is now a very real possibility.
These concerns are heightened by the Austin Police Department’s recent announcement that it is loosening restrictions on cooperation with ICE. APD Chief Lisa Davis has stated that local officers will now be permitted to contact ICE freely and may ask individuals about their immigration status during encounters. Under this policy, there is little to prevent a local police officer from reporting that they saw two Hispanic individuals speaking Spanish in a Latino neighborhood, which could trigger physical detention of U.S. citizens who have committed no crime.
Chief Davis attributed this shift to compliance with Texas Senate Bill 4 from 2017. However, the policy change appears to go beyond what the 2017 law requires, effectively positioning the city between the statute and the newer 2023 SB 4, whose legal future remains uncertain and may raise constitutional concerns. Austin should not go out of its way to build policy on a law of questionable legality – especially when doing so risks undermining residents’ safety and civil rights.
2023 SB 4 creates new state criminal offenses for entering Texas outside a lawful port of entry, authorizes state law enforcement officers to arrest individuals for these offenses, and empowers state judges to order removal from the country following conviction. It also prohibits state courts from pausing these prosecutions even when federal immigration proceedings are pending. In practical terms, Texas has attempted to construct a parallel immigration enforcement and removal system operating alongside the federal one. This is not a symbolic law. It is a structural shift in how immigration enforcement would occur inside Texas.
The constitutional issue is straightforward. Immigration enforcement and removal authority have long been recognized as core federal powers. The Supreme Court has already held that states may not create their own immigration crimes or deportation systems because doing so interferes with national immigration policy, foreign relations, and the constitutional principle of federal supremacy. 2023 SB 4 directly challenges that framework by authorizing Texas officers to arrest, detain, prosecute, and remove people based on state law alone.
Federal courts have already recognized that 2023 SB 4 raises serious constitutional questions. In July 2025, a panel of the U.S. Court of Appeals for the 5th Circuit affirmed a district court injunction blocking it from taking effect. The panel recognized that Texas had attempted to build a parallel immigration enforcement regime inside a domain traditionally reserved for the federal government.
Aligning local policing with SB 4 before the courts finish their review invites civil rights violations, costly litigation, and erosion of public trust.
That panel ruling, however, is not the final word. In August 2025, the 5th Circuit voted to rehear the case en banc, vacating the panel opinion. The injunction against enforcement remains in place while this rehearing proceeds, but the ultimate constitutionality of the law is still under judicial review.
That uncertainty matters for Austin. Aligning local policing with SB 4 before the courts finish their review invites civil rights violations, costly litigation, and erosion of public trust.
Public safety is not served by expanding police authority into legally uncharted territory. It is served by ensuring that law enforcement operates within clear and lawful bounds. Until the courts determine whether SB 4 can stand, Austin should prioritize the rights and safety of its residents over premature compliance with a deeply contested law.
Ricco Miguel Garcia is an attorney and a former chief of staff for Texas Sen. Carol Alvarado. He served as general counsel for state Rep. Toni Rose when SB 4 was passed in 2017.
Samuel Garcia is a Harvard Law graduate and currently teaches at the University of Pennsylvania’s Law School.
Got something to say? The Chronicle welcomes opinion pieces on any topic from the community. Submit yours now at austinchronicle.com/opinion.
This article appears in January 30 • 2026.