Let’s call them ‘constitutional cities,’ not ‘sanctuary cities,’ okay?

President  Trump speaks during a meeting at the White House on March 22. (Chip Somodevilla/European Pressphoto Agency)

Or perhaps “Fourth Amendment-abiding cities,” or “PSR cities” (police-state resistant). Calling them “sanctuary cities” is misleading, because it makes it sound as though they’re taking some extraordinary step, drawing a line in the sand and declaring that the law cannot enter inside the boundary, in the manner of, say, the “sanctuary” provided by churches in the Middle Ages.

That’s emphatically not what the cities targeted as “sanctuary cities” by the Trump administration (in the president’s executive order, and in Jeff Sessions’s remarks earlier this week) are doing.

President Trump in February in the White House. (Saul Loeb/Agence France-Presse via Getty Images)

There’s a lot of complicated law here, with many variations on exactly how and what cities are doing, and many important issues — constitutional and statutory — involved. Co-blogger Ilya Somin has provided (here and here) an excellent roadmap and summary for anyone who wants to understand the full constitutional dimensions of the issue.

But we shouldn’t let the legal complexity obscure just how terrible, and how violative of cherished constitutional principles, the administration’s policies are.

Let’s start with first principles. Suppose that law enforcement officers in some local jurisdiction — let’s call it “Allentown, Pa.” — and take someone — let’s call him “Ernesto Galarza” — into custody for violating some provision of Allentown’s criminal law.***  They need, of course, to have probable cause to believe that Galarza has committed the crime with which he is being charged before they can “seize” him, and they will have to persuade a neutral magistrate — typically a state court judge — that such probable cause exists before the seizure is deemed to be compliant with the constitutional requirements of due process.

*** See Galarza v. City of Allentown (CA 3, 2014) where the U.S. Court of Appeals for the 3rd Circuit held that Allentown had acted unconstitutionally (and was liable for monetary damages) for complying with the kind of order (an Immigration and Customs Enforcement detention request) that Trump/Sessions are trying to resuscitate, as discussed below.

Probable cause, with judicial oversight. If there is a more fundamental constitutional protection against abusive and tyrannical prosecutorial/police actions, I’m not aware of it.  The cops can’t just toss you in jail because they think you have committed a crime, or because they don’t like you, or because they think that you might have information about someone else’s commission of a crime. The involvement of an independent judicial overseer is our first line of protection against police and prosecutorial overreach.

There are places, of course, where the police and prosecutors do have the power to take you into custody without judicial (or any other) acquiescence. We call those places, appropriately enough, “police states.”

Back, then, to our “sanctuary cities.” Sessions complained about (and threatened to de-fund) “states and cities [that] have adopted policies designed to frustrate the enforcement of our immigration laws”:

“This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws. For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement (ICE) detainer requests with respect to individuals charged or convicted of a serious crime.  The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder.”

These “ICE detainer requests” are, not to put too fine a point on it, end runs around those basic constitutional protections against arbitrary prosecutorial action. Here’s how they work. ICE enters into agreements with local law enforcement agencies under which it (ICE) is provided with identifying information — name, Social Security Numbers, fingerprints — concerning individuals who have been arrested in the local jurisdiction.  If ICE believes that the individual has violated federal immigration law, it issues a detainer request to the local law enforcement agency under 8 CFR 287.7:

(a) Any authorized immigration officer may at any time issue a Form I–247, Immigration Detainer … to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible… .

(d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

So there you have it.  Even if the alien has not been “otherwise detained” by local law enforcement, he/she shall be held in custody just on the say-so of the police (!), for up to 48 hours.  No warrant required! No probable cause required! No need to deal with those pain-in-the-ass judges, who keep insisting on “due process” and the like.  Hey, it’s just 48 hours — and they’re aliens, for crying out loud, and who give a damn about their constitutional rights?

If that doesn’t scare the bejeezus out of you, you have a very different attitude toward police power, and police states, than I do.  Jurisdictions that refuse to honor such requests are not providing “sanctuary” for people who break the law; they are providing “constitutional protections” for those individuals. The administration has started publicizing those jurisdictions here, on the ICE website, to try, I suppose, to shame them into compliance. But to my eyes, the list — Ithaca N.Y.; Travis County, Tex.; Boulder County, Colo.; Iowa City Iowa; Bernalillo, N.M. — is an honor roll of sorts of cities and counties that will not let themselves be swept up into Trump-induced hysteria about undocumented immigrants. More power to them.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/30/lets-call-them-constitutional-cities-not-sanctuary-cities-okay/


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