Editor’s Note: One of the hottest — and most controversial — subjects presently discussed in law enforcement and political circles is the expanding role of local police in immigration enforcement. In the article that follows, PoliceOne Legal Columnist examines the legal nuances and some of their ramifications. What do you think? Let us know by adding your comments below.
About a year ago, I had the opportunity to address this subject during the annual meeting of the Southern Police Institute Alumni Association in New York City. While mainly addressing the liability concerns engendered through such enforcement efforts, I have since then been able to discuss this subject in broader terms with police executives.
It is certainly a subject that does not lend itself to a universal response other than that police involvement in this area is more prevalent than it had been. The events of September 11, 2001 changed our collective worldview and expanded the mission of U.S. law enforcement. But that mission in many respects has not been well defined, at least not in the manner to which police are accustomed: responding through investigation and apprehension.
U.S. courts have shown a strong presumption in favor of certain Executive and Legislative branch powers related to homeland security. This presumption does not extend to local law enforcement activities that may be tied to national security measures, such as immigration enforcement. This is especially true when there is no cooperation agreement between the national and local government.
Yet it is the local communities patrolled by our nation’s officers that are impacted most directly by these immigration concerns, many of which extend well beyond homeland security considerations to much more readily apparent issues such as crime, poverty, unemployment, gangs and drugs. This has been the American experience since the late nineteenth century.
Discussions regarding homeland security and law enforcement’s response eventually moves onto the subject of illegal immigration. Police agencies throughout the United States have become more actively involved in this area, some with federal training and in cooperation with federal authorities, and others taking on the effort with disastrous public relations and legal results.
The federal immigration code is not a simple singular statute to enforce like larceny or assault. There are several differing statuses of immigrants, some of whom may be illegal overstays subject to a civil enforcement order, while others may be subject to criminal sanctions. The role of local police in this area should be carefully considered by any police executive susceptible to the community and political pressures exerted by this subject.
In June 2006 the Major Cities Chiefs Immigration Committee Recommendations for Enforcement of Law by Local Police Agencies adopted a nine point position statement which sought to lay primary immigration enforcement where it belongs, with the federal government.1 Concerns as to familiarity with the complex immigration laws, liability issues and officers being diverted from their primary patrol and service missions were at the core of the committee’s position statement.
Prior to the statement of the Major Cities Chiefs, Congress attempted to involve local law enforcement in the immigration enforcement effort by sponsoring the CLEAR Act. Otherwise known as Clear Law Enforcement for Criminal Alien Removal Act of 2003 (HR2671), the legislation was aimed at providing state and local law enforcement full authorization to investigate, apprehend or remove aliens in the United States. This authority included interstate transportation to detention centers.
Among the provisions in the CLEAR Act were the withholding of federal funding for detention assistance for those states not in compliance within two years of the Act’s enactment, increased criminal penalties and forfeiture provisions under the Immigration and Nationality Act, an NCIC base of immigration violators, liability coverage and immunity to law enforcement officers and agencies involved in immigration enforcement efforts. The CLEAR Act met with strong opposition from immigration rights groups and the American Civil Liberties Union and is still not law.
Presently, law enforcement administrators are left with contradictory opinions as to the efficacy of adding immigration enforcement to their officers’ duties. In 2002 the Justice Department’s Office of Legal Counsel rendered a written opinion stating Congress did not preempt the states’ “inherent arrest authority” over criminal and civil violations of immigration laws.2 The OLC opinion buttresses prior federal court interpretations of local law enforcement’s criminal arrest authority but contradicts court decisions regarding the civil enforcement authority. The last thing an administrator wants to do is to leave a decision on civil enforcement efforts up to the vagaries of the various reviewing courts.
In United States v. Brignoni-Ponce, 422 U.S. 873 (1975) the Supreme Court stated that police officers may not arrest individuals for immigration enforcement purposes except upon probable cause. In the same decision the Court stated a person’s foreign appearance cannot be the basis of probable cause. The Ninth Circuit federal court of appeals in a 1983 decision said the police may enforce criminal provisions of the Immigration and Nationality Act (INA) but the civil provisions are complex, and such comprehensive federal regulatory schemes should be left to the federal government.3 The broad arrest authority of police officers in immigration cases has been recognized by other federal circuits.4 Yet, other federal circuits have predicated such efforts upon state legislation authorizing it.5 But this area remains a murky underwater for police officials with several well-publicized examples providing unwanted attention for local municipal administrators.
In DeCanas v. Bica, 424 U.S. 351 (1976) the Supreme Court held that any state or local law, ordinance, rule, or directive seeking to “regulate” immigration violates the Supremacy Clause of the U.S. Constitution (Article VI, clause 2) and can be preempted by federal law. A New Hampshire case involving a local officer who arrested an individual for trespass under a state statute based on the individual’s status as an illegal alien falls within the realm of federal preemption discussed in DeCanas. A neighboring town’s police chief had his officers similarly enforce the state’s trespass statute and arrest aliens based on their status.
The arrests were eventually nullified and the criminal case dismissed by the New Hampshire Superior Court based on preemption and constitutional issues.6 In another high profile case the City of Danbury, Connecticut’s mayor and individual police officers are being sued in federal district court for alleged immigration enforcement related civil rights violations.7
During a 2006 sting operation round-up of alleged illegal immigrant day laborers an undercover officer posed as a contractor. The officer, operating a truck, picked up several individuals who, once they were in the undercover truck, were surrounded by law enforcement officers and taken into custody. The detainees were subsequently transported to detention centers around the country. The lawsuit, undertaken by a Yale Law School legal clinic, alleges a pattern of racial profiling by the city against Latino immigrants.
The plaintiffs in this case have become known as the “Danbury 11.” Part of the pattern of police and government abuse alleged is the pre-textual vehicle and traffic stops made to run the names of Latino vehicle operators to see if they were wanted through NCIC and subsequently arresting them on civil immigration detainers. The complaint refers to the local officers’ lack of authority to enforce civil immigration detainers and references the Danbury Corporation Counsel’s Office warning to the mayor as to this lack of authority. The above is not meant to indicate that all localized efforts in the area of immigration are forbidden. If a state or local law has a limited or peripheral attachment to immigration it may withstand constitutional scrutiny. Immigrant outreach, safety programs and designated day labor pick up points are but a few examples of allowed encroachments within this federal arena.
Local law enforcement, however, has not been totally foreclosed from proactive immigration enforcement. In 1996 §287(g) was added to the Immigration and Nationality Act. This little-known provision has received much greater attention in the last few years. This addition to the INA provides cross-designation for local police and correction officers. A local agency requesting §287(g) designation enters into a Memorandum of Understanding (MOU) with Immigration and Customs Enforcement (ICE). Four weeks of training is provided at an ICE facility in Charleston, South Carolina. Once the training is complete, local officers are authorized to enforce immigration laws and access ICE databases.
There are two distinct advantages to §287(g) cross-designation. First, local officers are provided extensive training in federal immigration laws. Section 287(g)(2) requires law enforcement officers performing under agreement with the federal government to have knowledge of and adhere to federal law relating to their function. Additionally, the agreement with the Justice Department must contain a written certification that officers have adequate training in the area. This provides protection for liability premised upon a failure to train or inadequate training.
Second, the federal government provides indemnification for liability claims.8 This second aspect, while important, is still untested. To date I have not found any examples of the extent of federal liability protection or cases where such federal indemnification has occurred. Cross-designation under §287(g) does provide “clear authority” for local agencies to be involved in immigration enforcement.
The federal complaint for the “Danbury 11” cites the Connecticut Governor’s Office refusal to apply for §287(g) cross-designation for any state of local law enforcement officers, which makes for a compelling argument for lack of “clear authority.” The concept of “clear authority” provides an additional liability shield in that it removes a potential claim based on a violation of civil rights under 42 USC §1983.9 Other examples of “clear authority” derived from the law, aside from §287(g), are when there is a “mass immigration emergency” as determined by the U.S. Attorney General under 8 USC §1103(a)(10) and 8 USC §1324(c) which authorizes arrests for smuggling, transporting, or harboring illegal criminal aliens by “officers whose duty it is to enforce criminal laws.”
The constitutional areas likely to be subject to civil claims are Fourth and Fourteenth Amendment violations predicated upon enforcement and detention efforts. Immigration detentions are authorized only on the authority designated by the U.S. Attorney General. Further authority is provided under 8 USC §1357(d) for aliens arrested for controlled substance violations provided prompt notification is made to ICE and there is reason to believe the individual is illegally present and unlawfully admitted. Under 8 USC §1252(c) a police officer has arrest and temporary detention authority over an illegal alien if three conditions are met:
1.) the arrest is permitted by state and local law;
2.) the alien has been deported or left the U.S after a previous felony conviction; and
3.) prior to the arrest the police officer obtains “appropriate confirmation” of the alien’s removal status from ICE.
As the prior cited statutes indicate, the authority of police officers to enforce immigration laws is not unqualified. Allegations of racial profiling, as outlined in the “Danbury 11” lawsuit, are also a preeminent concern in this area. Enforcement efforts aimed at a particular group will not survive constitutional scrutiny if two factors can be shown: “1) the person, compared with others similarly situated, was selectively treated, and 2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.”10
This is an area where police agencies and their legal officers need to fashion policies that are neutral with regard to race, or do not use race as an impetus for procedural or enforcement actions which otherwise would not be taken. Once again, the “Danbury 11” lawsuit can be instructive with reference to the abovementioned allegation regarding vehicle stops of Hispanic vehicle operators and file checks for NCIC hits. If there were are an inordinate amount of stops of a particular group, and it is verified through tangible data, such as stop and frisk reports as in New York City, a cause of action can accrue for selective enforcement. Add to this the post-9/11 expansion of profiling to potential claims based on religion, and the street officer is faced with myriad new concerns that were never envisioned during academy training.11
The debate over illegal immigration has festered in this country for years. The role of local law enforcement has also been bantered about but now the dialogue has the added impetus of homeland security and the ever-present drug trade. Though immigration remains a federal issue, the impact of illegal immigration is felt locally in the communities you police. Sound administrative plans for how your agency will respond to those issues within the applicable limits of the law are key to good community-police relations and avoiding the unnecessary distraction of a civil law suit.
Footnotes:
1 www.houstontx.gov/police/pdfs/mcc_position.pdf
2 Attorney General’s Remarks on the National Security Entry-Exit Registration System, Washington D.C., 06/06/02
www.cis.org/articles/2006/OLCopinion2002
3 Gonzalez v. City of Peoria, 722 F.2d 468 (9th Cir, 1983)
4 See eg., United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir., 1999): “[p]re-existing general authority of state and local police officers to investigate and make arrests for violations of federal law including immigration laws.”; United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir., 2001): federal law “evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing immigration laws.”
5 See eg., Davida v. United States, 422 F.2d 528 (10th Cir., 1970); United States v. Janik, 732 F.2d 537 (7th Cir., 1983); United States v. Swavorski, 557 F.2d 40 (2nd Cir., 1977)
6 New Hampshire v. Barros-Batistele, et al., 05-CR-1474, et seq.
7 Barrera v. Houghton, 2007CV01436 (DC CT)
8 See eg., City of Oklahoma v. Tuttle, 471 U.S. 808 (1995), first U.S. Supreme Court case to address municipal liability for failure to train; allegations were that the city was liable for improper training of police officers in the use of force; City of Canton v. Harris, 489 U.S. 378 (1989), set liability standard of “deliberate indifference” for failure to train cases.
9 42 USC section 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
10 See, Zahra v. Town of Southold, 48 F.3d 694 (2d Cir, 1995)
11 DWA (“Driving While Arab”) and FWA (“Flying While Arab”) have entered the post-9/11 vernacular. See eg., Driving While Arab by Mike Odetalla, 05/18/04 at www.muslimwakeup.com/may/archive/2004/05/driving-while-a.php; and Driving While Muslim by Spencer Ackerman, 09/21/06 at www.thenation.com/doc/2006/009/spencerackerman. Additionally, numerous law journal articles have explored the potential legal impact of religious profiling as applied to the Muslim faith. See eg., Stephen H. Legomsky, The Ethnic and Religious Profiling of Noncitizens: National Security and International Human Rights, 25 b.c. Third Wolrd L.J. 161, 178-79 (2005); Aliah Abdo, The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf, 5 Hastings Race & Poverty L.J. 441(2008)
