July 2015 the United States Senate Judiciary Committee held a hearingconcerning state and local cooperation with federal immigration enforcement amidst growing national concern regarding municipal ‘sanctuary cities.’ Generally, sanctuary cities by law or in practice do not utilize public resources such as law enforcement to make inquiries regarding an individual’s immigration status or participate in government programs designed to enforce federal immigration laws. The Committee heard testimony from immigration agency officials, law enforcement, and families of victims murdered by undocumented foreign nationals. During the hearing, The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act received notable attention from numerous Senators and the affiants. The Act, which is strongly opposed by immigration advocates, was approved by the House Judiciary Committee March of 2015.
Locally, the New Orleans Police Department is currently drafting policies which will prohibit ‘officers from cooperating with any aspect of federal immigration enforcement.’ The Department has in the past participated in the US Department of Homeland Security Immigration and Customs Enforcement (ICE) immigration enforcement programs. However, a federally mandated consent decree prohibits the Department from inquiring regarding individual’s immigration status and/ or detaining an individual based upon actual or perceived nationality or immigration status. Yet Department policy 428.4 permits officers to engage in information sharing with ICE and requires that Department employees ‘cooperate with state and federal agencies and officials on matters pertaining to enforcement of state and federal laws governing immigration.’ As such, community immigration advocates have long maintained that the Department policies, practices, and engagement with ICE fosters discriminatory policing and now contradicts the mandates of the consent decree.
As recognized in the United States Supreme Court decision of ‘Arizona v. United States,’ as a general matter it is not a crime for a ‘removable’ foreign national to remain in the United States. Therefore, great care must be assigned to avoiding confusion between the punitive nature of criminal matters and remedial nature of civil administrative matters. Also of importance is the functionality and effect of such policies upon the civil liberties of all individuals. These issues include prolonged seizures or detentions generally impermissible under the criminal law in order to address a non-criminal immigration matter or undermining current federal policies by deterring individuals who are undocumentedfrom reporting crime or cooperating with laenforcement as victims and witnesses to criminal activity. Moreover, immigration policies must also place an appropriate weight of deference and recognition to the balance of powers of federal, state, and local governments. It is integral that immigration policies be fair and balanced- weighing the clear interests of the government regarding community safety and in the administration of its laws and of the individual to a fair administration of justice.
However, importantly, the administration of the laws must ensure that any cooperation of local and state law enforcement in immigration matters do not compound unconstitutional discriminatory policing which have an adverse disproportionate effect upon communities of color. Of utmost importance is that the execution and administration of the laws be constitutional, specifically in compliance with Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964, and consistent with law enforcement best practices and community policing strategies. The NOPD revision of its federal immigration enforcement policies is an appropriate step towards both constitutional policing and public safety.
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