America's Voice En Español »
Originally published April 25, 2017; last updated October 9, 2019
“Sanctuary cities” is actually a misnomer. While many Americans believe that it refers to a city that doesn’t prosecute immigrants, so-called “sanctuary cities” actually refer to something far more specific.
There’s no single definition of what is a sanctuary city, but generally speaking, it’s a city (or a county, or a state) that limits its cooperation with federal immigration enforcement agents in order to protect low-priority immigrants from deportation, while still turning over those who have committed serious crimes. This is why we prefer the term “safe cities”.
Sanctuary cities come into play when an undocumented immigrant comes into contact with the police. A very common occurrence of this happens on the road – someone is speeding, has a broken taillight, or has a broken license plate light, and is pulled over. If a person is undocumented, chances are they do not have a valid driver’s license – only twelve states and the District of Columbia allow immigrants to legally drive. Immigrants still have to get to work and school somehow – but being found without a valid driver’s license can get an individual arrested.
Other reasons immigrants (just like native-born Americans) come into contact with the police include an immigrant calling the police to their house (for example in the case of a domestic dispute), a car accident, drug usage, police checkpoints, so forth.
Once an immigrant is arrested, their information gets put into a federal database that is shared with Immigration and Customs Enforcement (ICE). ICE can then issue a hold, also called a detainer, asking the police to hold that person in custody until ICE can come pick that person up for immigration detention and eventual deportation.
Here’s where we get to important legal point #1: being undocumented is not a crime. It’s a civil violation. Undocumented immigrants have rights under the U.S. Constitution. And according to due process, the police cannot detain anyone who hasn’t at least been suspected of a crime. If a police officer encounters someone walking down the street who turns out to be undocumented, they cannot arrest that person because that person has not committed a crime (ICE, however, can). Similarly, if the police arrest someone undocumented – for example, someone suspected of committing a crime, who is then cleared, they must let that person go.
Important legal point #2: holding an immigrant past the point when they should be released, just so that ICE can pick them up, is unconstitutional. Multiple courts have said so, and immigrants can sue the police for unlawful holding.
Here we get back to the point of sanctuary cities: in a sanctuary city, the police will release an arrested immigrant after he’s been cleared of charges, posted bail, or completed jail time for whatever he was arrested for. A non-sanctuary city will hold that person until ICE can come pick them up – even though that extra holding is not constitutional.
Keep in mind that all of the above only applies if the undocumented person has not committed any serious crimes. If they have, the police can keep them in jail by filing charges. Or ICE can present the police with a warrant or other order from a judge, which will result in a hold until ICE can come by.
Here’s a pretty real-life example of how this works: let’s take “Alex”, someone who is in the US without papers (and who is not a Dreamer). One day, Alex gets pulled over the police because his taillight is broken. The police find out that he has no driver’s license. They take Alex and put him in jail overnight because of the driver’s license infraction; otherwise Alex has no criminal record whatsoever. While Alex is in jail, the police puts his information into the federal database shared with ICE, and ICE puts a hold / detainer on him.
Remember: Alex is in jail for a driver’s license infraction. He has not committed any other crimes. The fact that he is an undocumented immigrant is not a crime. The police can hold him for what he’s done — drive without a license. But holding him past the time when he should be released, just so that immigration agents can come pick him up, is unconstitutional.
If Alex doesn’t live in a so-called “sanctuary city”, the police might hold him for days or longer until immigration agents pick him up, which might put Alex on the path to deportation even though he’s done nothing besides drive without a license. Even though this is currently what many cities and counties do – even though this is what the Trump Administration wants cities and counties to do – it’s illegal because it robs immigrants like Alex of due process.
If Alex does live in a sanctuary city, the police would recognize that Alex has not committed any serious crimes and release him (in this example) after his one night in jail. That’s what they’re supposed to do. That’s why some also suggest that we call sanctuary cities “constitutional cities”.
In a sentence, sanctuary cities make everyone safer. This is because:
Research backs this up; one analysis has shown that sanctuary cities see 15% less crime than non-sanctuary cities. Another found that two-thirds of the cities that had the highest jumps in murder rates in 2016 were not sanctuary cities – in fact, they are the opposite, generally eager to hold immigrants for ICE pick-up and detention.
In contrast, scary things can happen when immigrants become afraid of the police. In Houston, the police chief noted that the number of Hispanics reporting rape is down 42.8% from last year, and the number reporting other violent crimes has dropped 13%. This is during a year when crimes reported by non-Hispanics increased. Immigrants in California also aren’t reporting sex crimes, while fears of deportation caused women in Colorado to drop domestic abuse cases in which they were witnesses.
That’s why so many law enforcement officers support sanctuary city policies. That includes the Fraternal Order of Police, a membership organization which endorsed Donald Trump in the 2016 election but has since told him to back off the idea of punishing cities or their police departments for immigrant-friendly sanctuary policies.
Here are some op-eds from law enforcement officers about why they support sanctuary policies. This is just a small sampling of the dozens of law enforcement officials who have spoken out in favor of sanctuary cities:
The Trump Administration, and especially Attorney General Jeff Sessions, has repeatedly tried to target sanctuary cities. They get in the way of the Administration’s mass deportation efforts, and Sessions has repeatedly threatened to defund them. But the law here is on the cities’ side, partly due to a conservative pet cause: states’ rights.
It’s ironic and hypocritical for Republican lawmakers to demand the sanctuary cities and counties handle immigrants the way Trump and Sessions want cities and counties to handle them, because conservatives are supposed to support protecting local government from federal intrusion. Luckily, there are pretty solid Supreme Court rulings – some written by conservative justices — that protect states from the Trump Administration’s demands over sanctuary policies. According to the courts:
Even though the Trump Administration is wrong on sanctuary cities, it has repeatedly tried to attack them — and immigrant communities.
In March 2018, Sessions announced that he was filing a lawsuit against California and state policies which he deemed too immigrant friendly. Except, as Mark Joseph Stern at Slate wrote:
Sessions didn’t have the guts to go after California’s principal sanctuary law because he would undoubtedly lose. Instead, he has targeted three secondary policies that make up a small portion of the state’s broader immigration regime. Even if Sessions succeeded in overturning all three laws, California would remain a sanctuary state. But he probably won’t succeed in killing any of them. Perhaps this lawsuit is just another desperate attempt to win back President Donald Trump’s affections.
Sessions is targeting 1) a rule that bars California law enforcement agencies from sharing information about undocumented immigrants, 2) a state law that protects immigrants from workplace raids, and 3) an act allowing the California attorney general to inspect immigration detention facilities within the state. Stern noted that all three components of Sessions’ lawsuit effort are likely doomed, saying:
Sessions, a self-proclaimed defender of states’ rights, is seeking to undermine states’ ability to conduct their own affairs. He is intruding upon California’s police powers and undermining its protection of civil rights because he dislikes the state’s laws. Sessions may wish that every state would accede to his policy agenda. But he can’t use the Constitution to make them obey his commands.
Recently, the Department of Homeland Security and Acting ICE Director Thomas Homan have threatened local elected officials themselves for actions they’ve taken and actions their jurisdictions have taken to protect immigrants. As the ACLU wrote, these threats are “lawless and baseless”. Moreover:
The idea of these prosecutions is insidious. At bottom, the administration’s complaint is that localities are adopting policies with which it disagrees. This idea of locking up elected officials for their political speech, beliefs, and votes is contrary to the First Amendment and the democratic principles on which our country was founded. Even the suggestion is dangerous and reprehensible.
In April 2017, Sessions sent a letter to nine jurisdictions (one state, four cities, and four counties), telling them to get their sanctuary policies right with the Trump Administration, or else lose part of a $265 million grant intended to help police and prosecutors.
Except the threat in Sessions’ letter was ignorant of how immigration law works. What Sessions’ letter wanted the jurisdictions to do was obey a 1996 statute that says a city/county/state cannot prevent an official from talking to the feds about the immigration status of an individual. Almost every city and county in the country is in compliance with this requirement, including those that the Trump Administration considers to be sanctuary cities. That part of the law is not even in dispute – yet Sessions for some reason saw fit to put jurisdictions on notice over it.
What Sessions (and Trump) ultimately want, of course, is for cities and counties to hold undocumented immigrants for ICE pickup and detention. But as explained above, when an immigrant has committed no crime, holding them for ICE is not consistent with current law, and cities and counties can be held liable for violating immigrants’ rights. Sessions was unable to explain away this incoherence during a meeting with the mayors of the cities he targeted, and the mayors eventually left confused. On a number of immigration issues, “we hear very different messages from (Homeland Security), DOJ and also the White House,” said Jorge Elorza, the Mayor of Providence, RI. “Just give us clarity and please have one, clear policy so we can know where we stand.”
In addition, for all of about two weeks, the Trump Administration published a weekly report of cities and counties that, in its opinion, operated illegal sanctuary policies. Except, as explained above, cities that don’t hold immigrants for ICE are operating in accordance with the law, while cities that do hold immigrants for ICE are behaving unconstitutionally – even though this is the opposite of what the Trump Administration wants to be true. A number of cities and counties clapped back against the Trump Administration for trying to name and shame them even though they were just following the law, forcing the Administration to apologize to a number of them and – after just a couple of weeks – stop publishing the reports altogether.
In January 2017, Trump signed an executive order calling on sanctuary cities to comply with federal immigration law or else have federal funding pulled. But in April, a San Francisco judge blocked the order, saying that the president had overstepped his powers by trying to tie billions in federal funding to immigration enforcement, and that only Congress could place such conditions on spending. The judge also noted that federal funding conditions must be tied to the policy in question – for example, housing funds cannot be conditional on immigration laws.
Just as the judge striking down Trump’s Muslim ban did, the San Francisco judge used the words of the Trump Administration against itself, to prove that the intent behind Trump’s executive order was something other than what the government’s lawyers claimed in court. Once more, the big mouths behind Trump and his Administration are helping to defeat their own policies.