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Why local police should resist federal efforts to make them arms of ICE

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Minnesotans are contacting their mayors, city councils, police chiefs, and sheriffs to suggest that they should preserve our Fourth Amendment freedoms and resist the federal government’s attempt to commandeer state and local resources.

“Major Strasser has been shot! Round up the usual suspects.”

John Gordon

It was funny when the police captain said it in the 1942 movie "Casablanca" because the shooter was standing in front of him with the murder weapon still smoking. It’s not so funny now.

Why? Because the president is trying to bully Minnesota law enforcement officials into rounding up the usual suspects — immigrants — in a way that makes us less safe, harms police-community relations, wastes money, distracts from local priorities, and violates the Constitution. 

The president threatens to withhold billions of dollars in grants from “sanctuary jurisdictions,” jurisdictions that he claims “willfully violate federal law.” But the term “sanctuary jurisdiction” has no legal meaning. Hundreds of counties and cities and five states could be labeled as “sanctuary” jurisdictions, according to the Immigrant Legal Resource Center. They include Minneapolis, St. Paul, Ramsey County, and Hennepin County. These jurisdictions have established policies that limit their involvement in federal immigration-law enforcement, and that refuse to comply with “detainers.”

Both policies make sense. They do not prevent the police from pursuing criminals, do not prevent immigration agents from doing their jobs, and do not violate federal law.

'Detainers' are requests, not warrants

Here’s why: Immigration and Customs Enforcement (“ICE”) has issued hundreds of thousands of “detainers,” which request local jurisdictions to hold prisoners longer than any state criminal charges would otherwise justify. But these detainers are nothing but requests. They’re not warrants signed by judges based on probable cause, as required by the Fourth Amendment. Courts have repeatedly held that local jurisdictions are free to disregard detainers, and that compliance with them violates the Fourth Amendment right to be free from unreasonable arrests. 

To make matters worse, detainers are often based on misinformation. According to the Transactional Records Access Clearinghouse, ICE has illegally issued detainers for hundreds of U.S. citizens, although it has no jurisdiction to do so. And during a recent 50-month period, more than 77 percent of detainers were issued to individuals with no criminal record.

Not surprisingly, law enforcement agencies that comply with ICE detainers have been sued for violating the Constitution. Because of rulings by judges in Minnesota and elsewhere, local jurisdictions have paid substantial sums in damages to victims. 

But holding people in violation of their constitutional rights is not just wrongful and expensive: It makes us less safe. Community policing requires trust and engagement between police and the communities they protect. It’s obvious — and studies show — that when people know that the police are acting as immigration-enforcement agents, they hesitate even to communicate — much less cooperate — with the police.

And then there’s the bullying: ICE issues weekly lists accusing hundreds of jurisdictions of declining to honor ICE detainers, and the president has threatened to withhold billions of dollars in grants to “sanctuary jurisdictions.”

A 10th Amendment violation

Withholding grants from states that don’t want to allocate resources to enforcing federal immigration laws would violate the 10th Amendment to the Constitution, which forbids the federal government from conscripting local governments into performing federal functions. Thanks in part to opinions by the late Justice Antonin Scalia (overturning part of the Brady gun-control act) and Chief Justice John Roberts (overturning part of the Affordable Care Act), the federal government cannot hold a “gun to the head” of states that want to spend state money on state priorities instead of federal priorities.

Why should we care? Because local law enforcement officials need our support and encouragement to do the best they can to protect and serve us by doing the jobs they were hired to do. Minnesotans are contacting their mayors, city councils, police chiefs, and sheriffs to suggest that they should preserve our Fourth Amendment freedoms and resist the federal government’s attempt to commandeer state and local resources. This resistance is not a recipe for breaking the law. It’s a recipe for following the law and protecting our communities from crime.

The website peoplepower.org has suggestions for how to get involved. If we get together with our state and local governments to pursue the common-sense goals of following the Constitution and focusing on local law enforcement, the final line of "Casablanca" will turn out to be true: “This could be the start of a beautiful friendship.”

John Gordon is the interim legal director of the American Civil Liberties Union of Minnesota.

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Comments (3)

Still illegal

I’d like the author to answer a simple question: is coming to America without proper documentation illegal? Since I can’t imagine any other answer but ‘yes,’ the next question is how is it possible, both legally and morally, to prohibit law enforcement agencies from stopping illegal activities?

Now, the author claims that the policies in question “do not prevent the police from pursuing criminals, do not prevent immigration agents from doing their jobs, and do not violate federal law “do not prevent the police from pursuing criminals, do not prevent immigration agents from doing their jobs, and do not violate federal law.” So are the cases when criminals were released by local authorities and then committed crimes all fiction? Hasn’t it ever happened that local law enforcement agencies let people go just to prevent ICE from arresting them? Isn’t helping illegal aliens a crime? And logically potential victims of illegal aliens let out by local officials should be able to sue those local officials…

Aren’t states supposed to comply with all federal laws? If Arizona was sued for trying to enforce the federal law that federal government didn’t want to, how can refusal to enforce that federal law is not a crime? Since federal laws preempt state laws, there should be a mechanism to force the states to comply with those federal laws… For example, I think when the feds reduced the legal alcohol limit, how did they force the states to comply? Wasn’t forcing lower interstate speed limit similar?

“But holding people in violation of their constitutional rights is not just wrongful and expensive: It makes us less safe. Community policing requires trust and engagement between police and the communities they protect. It’s obvious — and studies show — that when people know that the police are acting as immigration-enforcement agents, they hesitate even to communicate — much less cooperate — with the police.” What studies show this? And who is afraid to cooperate with police – witnesses? Victims? But they are not the ones to be afraid to be deported because their status doesn’t need to be checked…

Glad you asked

I'm going to assume that you really want answers to your questions, despite their tone, so here goes:

"Is coming to America without proper documentation illegal?" Although you say you "can't imagine" any answer other than "yes," the answer is in fact other than a simple "yes." There are lots of ways people end up here without breaking the law, including being brought here as a child who is too young to form any criminal intent, as well as entering legally and overstaying a visa. Those are only examples. Second, many of the people who did commit the misdemeanor (yes, that's all it is) of entering without documentation entered so long ago that the statute of limitations has expired; therefore, they can no longer be prosecuted for it. Finally, even if a person committed a misdemeanor when they entered, remaining here without papers is not a crime at all. Courts have so held over and over. In short, many people subject to deportation are simply not criminals.

"Are the cases when criminals were released by local authorities and then committed crimes all fiction?" Actually, many of them are fiction. And you can find criminals in every demographic in this country, including rich people and poor people, tall people and short people, urbanites, suburbanites and farmers, old and young, native-born and immigrant, and every racial and religious and ethnic group you can think of. But you don't have to conclude that no one released from ICE custody has ever committed a crime to conclude that the costs--social, monetary, and otherwise--of holding people indefinitely outweigh the advantages, not to mention the fact that i hope all of us believe that our rights under the Constitution should be respected. In general, many immigrant populations tend to be more, not less, law-abiding than many native-born populations.

"Isn’t helping illegal aliens a crime?" No, it's not. 8 U.S. Code § 1324 criminalizes the bringing in and harboring of certain aliens in certain circumstances, but it's a lot narrower than you suggest. And releasing people from custody when the Constitution requires it can hardly be defined as 'helping" them.

"Aren’t states supposed to comply with all federal laws?" I confess I don't know what this means. States are definitely not required to spend their own money to help ICE conduct its duties. In fact, the Tenth Amendment to the Constitution guarantees the states' freedom from incurring such costs.

"Who is afraid to cooperate with police – witnesses? Victims?" Yes. All of the above. For example, simply Google the phrase "fear of ice cuts reporting domestic violence" or any similar phrase. The relevant results go on for page after page. Check it out.

Thanks for your questions. Hope this was helpful.

Illegal immigrants.

Regardless of how they are enacted or what form they take, sanctuary policies place a greater emphasis on the interests and welfare of criminal aliens than citizens and legal residents. Local law enforcement has to have the right to enforce immigrant laws. We did when I was a cop in Hennepin County and they should now.