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In a new opinion piece for the Washington Post, Radley Balko reviews the attacks launched yesterday by Attorney General Jeff Sessions against local law enforcement agencies that refuse to act as ICE agents. It is an excellent summary of the current state of the debate over so-called “sanctuary cities” and is a must read. Balko’s entire piece, entitled ‘Trump doesn’t support cops. He supports cops who agree with him’ is available below and online here.
Back in 1970, Congress passed a couple of bills authorizing the “no-knock raid.” This was an issue that President Richard Nixon had pushed during the 1968 presidential campaign. Prior to the late 1960s, police did sometimes enter residences without knocking, but they’d only decide to do so under “exigent circumstances,” such as pursuing a fleeing fugitive or hearing screaming from inside of a house. They would then need to justify their actions to a judge. Nixon wanted cops to be able to get warrants authorizing no-knock raids ahead of time, particularly in drug cases.
This wasn’t something police chiefs or sheriffs were asking for. It wasn’t a tool they thought they needed, at least at the time. Instead, it was the brainchild of Don Santarelli, a young Senate staffer hired by the Nixon campaign to come up with wedge issues to appeal to Nixon’s “silent majority.” Letting cops bust down the doors of suspected drug offenders may have violated a centuries-old principle called the “Castle Doctrine” — the notion that the government should only be able to violate the sanctuary of the home under extraordinary circumstances — but it played well with Nixon’s favorite demographic. (Santarelli has since expressed regret for this policy.) The first bill Congress passed allowed the no-knock for federal agents conducting drug investigations all over the country. The second authorized the no-knock warrant for cops in Washington, D.C. Because Congress has jurisdiction over D.C., Nixon had decided to make the city a guinea pig for his anti-crime policies.
Federal agents embraced the policy, and commenced kicking down doors all over America, often with tragic consequences. But in D.C., it was a different story. Police Chief Jerry Wilson — a man well ahead of his time — thought the policy was dangerous, was reckless and ran roughshod over the civil rights of his constituents. He also feared that it would poison the relationship between police and the city’s residents. So he refused to implement it.
Over Wilson’s tenure, crime dropped in D.C., even as it soared in much of the rest of the country. So the Nixon administration didn’t seem to mind that Wilson hadn’t instituted one of its key policies. It was happy to take credit for the drop in crime. Congress would later repeal both no-knock bills, although the policy would come back in the 1980s and has been with us ever since.
Last week, I thought about Wilson’s stand against an aggressive law-and-order administration when the Trump administration posted the names of police agencies that refused to detain suspected undocumented immigrants long enough for federal officials to take custody of them. This will apparently be a weekly endeavor, an effort to shame local authorities for not sufficiently aiding in deportations. Like the threat to cut federal funding to sanctuary cities, President Trump’s aim here is to punish municipalities for not sufficiently contributing to his deportation goals.
It’s also a direct attack on policing and federalism, two institutions Trump and his administration claim to hold in high esteem. Throughout the 2016 campaign, Trump and his supporters painted him as the candidate who will support cops, who would give police officers the tools they need to do their jobs. Trump would be a stark contrast to the Obama administration, which Trump, Attorney General Jeff Sessions and campaign surrogates reprimanded as too critical of law enforcement and too eager to impose federal authority on local police agencies.
Sessions, for example, called the use of consent decrees between the federal government and police agencies in which the Justice Department has found a pattern of civil rights violations — which increased significantly under the Obama administration — “one of the most dangerous . . . exercises of raw power.” Trump himself has repeatedly argued that the administration’s federal oversight has made police officers afraid to do their jobs, and has blamed President Barack Obama’s Justice Department at least in part for the rise in crime in some American cities.
But the decision among some police agencies to refuse to hunt down or hold undocumented immigrants for federal authorities isn’t a protest for open immigration or a way of undermining Trump. It’s about good policing. First, there’s the problem of complying with the law. As the New York Times argued in a recent editorial, complying with White House demands would likely violate the Constitution:
If a police department is about to release someone who posts bail, it can’t prolong the detention — in essence, arrest that person again — just because ICE asks it to. Federal courts have repeatedly ruled that the local police cannot be forced to honor a detainer in violation of the Constitution. That is, without an arrest warrant from a judge. Which an ICE detainer is not.
The list appears to have been pretty ad hoc and sloppily assembled. It was clearly designed more to shame agencies that have publicly opposed Trump than to be a comprehensive list of those that haven’t complied. For example, more than 60 percent of the ignored detainers listed for the first week were in Travis County, Tex. That county’s sheriff’s department instituted a new policy last month restricting its cooperation with ICE. But there’s a good reason the sheriff’s department there wants to make its own decisions about when to ask for deportations:
Maj. Wes Priddy, of the Travis County Sheriff’s Office, said the agency does detain criminals convicted of serious crimes for immigration officials.
But he said his department does not turn over people awaiting trial.
“We do honor ICE detainers. But we do it selectively and in a manner which we can abide by our policy,” Priddy said, adding that in the past, immigration officials have deported people before trial, depriving defendants of their day in court and, in some cases, denying closure to crime victims. “We want to make sure that justice is served on the local level as well.”
In other words, local officials have determined that in some instances, trying serious crimes in court is more important to the local community than deporting an accused undocumented immigrant. That’s precisely the sort of decision a true federalist would let states and municipalities decide on their own. Instead, Trump wants a one-size-fits-all immigration policy — his policy — for every police agency in the United States.
But it’s worse even than that. Trump also made crime a key part of his campaign. He demagogued and exaggerated the rise in violent crime in some cities. Police officials, especially those in large cities with large populations of undocumented immigrants, aren’t opposing Trump’s immigration policies out of spite or distaste for him. They’re opposing them because they fear those policies will lead to more crime, not less. Over and over, in city after city, law enforcement officials have stated that when you create a climate of fear in immigrant communities, it makes undocumented people, their friends and their families less willing to report crimes, and less likely to cooperate with police investigations. This is why groups such as the Major Cities Chiefs Association have expressed concern about Trump’s threats to sanctuary cities, and why police officers in those cities say Trump is making their jobs more difficult. From the L.A. Times:
“It is my job to investigate crimes,” said [Det. Brent] Hopkins of the Los Angeles Police Department’s Wilshire Division, who also serves on the police union’s communications committee. “And if I can’t do that, I can’t get justice for people, because all of a sudden, I’m losing my witnesses or my victims because they’re afraid that talking to me is going to lead to them getting deported.”
After Trump’s unveiling last week of two executive orders that called for empowering local law enforcement officers to take on the duties of immigration agents, police officers and sheriff’s deputies across the Los Angeles area said in interviews that enforcing immigration laws is not in their job descriptions. Many expressed concerns that immigrants already wary of reporting crimes or being interviewed as witnesses will retreat further into the shadows.
“They should be running to us, not away from us,” said LAPD Deputy Chief Robert Arcos of Central Bureau, which includes Boyle Heights, MacArthur Park, Chinatown and other areas with many immigrant residents. “We are here to be their protectors.”
Besides, some officers said, they are too busy answering 911 calls, arresting robbers, stopping erratic drivers and solving homicides to add federal immigration enforcement to their to-do lists.
“We have enough issues just trying to keep the peace anyway,” said J.C. Duarte, a veteran LAPD officer in Northeast Division. “It’s just going to create a wedge between immigrants and law enforcement. Whether they’re here legally or not, there’s going to be a fear generated.”
The passage above is from an article published in January. The sentiments expressed in that article appear to have been confirmed last week when the Los Angeles Police Department announced in a press release that reports from Hispanics of rape in Los Angeles have fallen 25 percent from last year; reports of domestic abuse are down 10 percent. LAPD Chief Charlie Beck said he believes fear of deportation is behind the drop in reported crimes.
Law enforcement officials from across the country have expressed similar concerns. The police commissioner in Suffolk County, New York, told the New York Times that Trump’s orders will also make it more difficult to fight gang crime. “We solve crimes based on people coming to us,” he told the paper. “It’s that simple. If people think they’re going to get deported every time they speak to a police officer, it’s not helpful.”
Tucson Police Chief Chris Magnus said in November that Trump’s effort to enlist local police agencies for immigration enforcement would “seriously compromise” trust between police and the community, adding, “We will not compromise our commitment to community policing and public safety by taking on immigration enforcement responsibilities that appropriately rest with federal authorities.”
That sentiment was echoed by police and elected officials in border cities and cities with large immigrant populations across the country:
- Citing concerns expressed by police, the San Diego Union-Tribune reported that San Diego’s mayor announced earlier this month that police would not take part in federal immigration-enforcement efforts.
- Last month, New York Police Commissioner James O’Neill told his officers to disregardadministrative warrants from federal immigration officials.
- When asked last month about whether city police would aid Immigration and Customs Enforcement efforts to find undocumented immigrants, Albuquerque’s mayor replied, “we simply don’t have the resources or plans to do that.”
- In El Paso, a county judge called Trump’s plan to enlist local law enforcement “frightening,” and “terrible, absolutely terrible.” Sheriff Richard Wiles added, “Quite frankly, local and county law enforcement are very busy doing the work we are responsible for, which is providing public safety to our community, and there is no reason for us to take on another agency’s responsibility.”
- A Phoenix police spokesman told the Arizona Republic, “We want our victims and witnesses to feel comfortable reporting to police without fear of undue scrutiny. We will continue to follow state law as it pertains to immigration status verification of all arrested people.” The headline for that article: “Help immigration agents with Trump’s new orders? Arizona police not volunteering”
- City and police officials in San Francisco have also vowed not to cooperate.
- As have officials in Chicago.
- Likewise in Tennessee’s two largest cities, Nashville and Memphis.
In its own statement in response to Trump’s executive orders on immigration, the International Association of Chiefs of Police also emphasized local control:
There have also been recent reports that the Trump Administration is considering using state and local law enforcement agencies in the apprehension and removal of illegal aliens in the United States. To be clear, President Trump’s January 25th Executive Order (Enhancing Public Safety in the Interior of the United States) only directs the Secretary of Homeland Security to use his existing authority under Section 287(g) of the Immigration and Nationality Act to enter into voluntary agreements with state and local agencies to perform immigration enforcement duties. This approach is consistent with the efforts of previous administrations and is dependent upon the consent of the state or local entity.
However, the IACP has, and will continue to strongly oppose any initiative that would mandate that state and local law enforcement agencies play a role in the enforcement of federal immigration law. The IACP believes that the issue of state, tribal, or local law enforcement’s participation in immigration enforcement is an inherently local decision that must be made by law enforcement executives, working with their elected officials, community leaders, and citizens.
These police officials believe that complying with Trump’s request for local assistance will divert scarce resources away from real crime and toward apprehending people who aren’t a threat to public safety (despite Trump’s fear-mongering, there’s zero evidence that undocumented immigrants commit crimes at a higher rate than the general population), and will cause immigrant communities to fear the police and make them less likely to report crimes and cooperate with police. And this will make their cities and counties less safe.
If Trump truly trusted local police, if he truly wanted to support them and give them the tools they need to fight crime, he’d take their word on this. But Trump is certain that immigrants cause crime. Again, all the evidence says otherwise. But he himself is certain of it. So Trump’s administration is publicly shaming police departments who think otherwise, and threatening to cut funding to any agency or city that doesn’t bend to his will. This isn’t supporting law enforcement. It’s open hostility toward law enforcement.
The Trump administration’s hypocrisy in threatening local police over immigration while excoriating the Obama administration for its oversight efforts is only compounded when you consider the legal authority behind each policy. Trump and his supporters relentlessly chastised the Obama administration for its consent decrees and reports on police agencies in places such as Ferguson, Baltimore and Chicago. But Obama’s Justice Department was attempting to enforce the 14th Amendment rights of the citizens in those cities. One can disagree with the Justice reports’ claims about how often such violations occurred in those cities, or with the effectiveness of consent decrees, but there’s no question that the federal government is authorized — obligated, in fact — to enforce the 14th Amendment when states and cities refuse or neglect to do so.
Trump, on the other hand, is attempting to shame and coerce local police departments into enforcing immigration law, a power that the Constitution, the Supreme Court and the federal code clearly delegate to the federal government.
Sessions was among the most vociferous critics of the Obama administration’s relationship with law enforcement. “I’m already hearing from state and local people that they’re concerned about a lack of federal support and leadership,” he said last month. “My judgment is this is not a blip and we’re seeing, I’m afraid, a longer term trend of violent crime going up, which is not what we want in America.” NPR also reported that Sessions “worried about poor morale and a lack of community engagement” with police.
Here’s another Sessions quote from a Huffington Post article: “It’s a difficult thing for a city to be sued by the Department of Justice and to be told that your police department is systemically failing to serve the people of the state or the city.”
Sessions gave that particular quote two months before the Trump administration began publicly shaming police agencies that don’t adopt its own hard line on immigration.
Let’s be clear, then: Trump doesn’t support cops. He supports cops who agree with him.