DOJ rattles its saber again over sanctuary city policies, threatens King County

Yesterday the US Department of Justice sent another round of threatening letters to select cities and counties, pushing back on so-called “sanctuary city” policies.

The Trump administration has taken a hard line on enforcing federal statute 8 USC 1373, which specifies that local jurisdictions may not restrict its personnel for sharing information with the Department of Homeland Security’s immigration enforcement staff. Federal law enforcement grants (of which Seattle and King County jointly have one worth $670,000) require grant recipients to certify that they are in compliance with 8 USC 1373 as a condition of receiving the funds (this may or may not be constitutional, based on similar but not identical case law). This was the subject of one of Trump’s first executive orders after taking office.

Back in November, the DOJ sent letters to both Seattle and King County suggesting that they were not, in fact, in compliance with 8 USC 1373. Last month both responded saying that they were in compliance, while locally making defiant statements that they refuse to be bullied by the Trump Administration.

One of yesterday’s batch of letters targeted King County — but not Seattle — saying that the DOJ still had concerns as to whether the county is truly in compliance, and demanding a large amount of documents and correspondence related to instructions that it gives its personnel on how to work with ICE.

The Department remains concerned that your jurisdiction’s laws, policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or applied in a manner inconsistent with section 1373. In light of these concerns, the Department is requesting certain documents as described below. This request is made consistent with 2 CFR § 200.336, as adopted by Department regulation 2 CFR § 2800.101…

Documents Requested:

All documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees (including, but not limited to, police officers, correctional officers, and contract employees), whether formal or informal, that were distributed, produced, and/or in effect during the relevant timeframe, regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.

BJA will review your submissions and seek additional information, if necessary. The Department fully anticipates your complete cooperation in this matter. Should you fail to respond in a timely and complete manner, the Department will subpoena these documents in accordance with 34 U.S.C. §§ 10225, 10221, 10230, 10151 – 10158, 10102(a)(6), 10110, and 10110 note.

These materials are critical to our ongoing review. Should the Department determine your jurisdiction is out of compliance with section 1373, the Department may, as detailed in the disparate jurisdiction award documents, seek return of your FY 2016 subgrant funds, require additional conditions for receipt of any FY 2017 Byrne JAG subgrant funding for which you may have applied, and/or deem you ineligible for FY 2017 Byrne JAG subgrant funds.

The DOJ has different issues with Seattle and King County. With Seattle, the issue at hand is the city’s ordinance banning its personnel from inquiring as to someone’s immigration status (with a couple of notable exceptions). It’s a clever dance around 8 USC 1373; it doesn’t prevent sharing information with ICE, but rather prevents there from being any information in the first place that ICE might ask for.  However, the DOJ might suggest that the ordinance also bars its personnel from asking ICE about someone’s immigration status, which would seem to violate the federal statute. At least for the moment, though, the DOJ isn’t pushing on that — probably because it cuts to the heart of whether 8 USC 1373 violates the 10th Amendment by forcing local law enforcement officials to enforce federal immigration law.

King County’s issue is different, and it relates to the fact that the county operates jails on behalf of all the cities in its jurisdiction. ICE has become fond of issuing “detainer requests,”  formal requests to continue to hold someone who is about to be released from a local jail and who ICE suspects is an undocumented immigrant, until an ICE agent can arrive at the location and arrest the person. While the Supreme Court has not yet ruled on the issue, lower courts have found that detainer requests are unconstitutional, both as an illegal arrest and again as a violation of the 10th Amendment by forcing local law enforcement officers to enforce federal laws. Many jurisdictions, including King County, have refused to honor detainer requests that are not accompanied by an arrest warrant. The Trump Administration continues to argue that they are both legal and an important tool to keep violent criminals off the streets.

Behind both of these issues is a war of words and philosophies as to how to make America and communities safer. Trump and Attorney General Sessions argue that many undocumented immigrants are violent criminals (some being members of the MS-13 gang) and thus a crackdown on illegal immigration is a public safety program that keeps our country safe.  But Seattle, King County, and other jurisdictions argue that when local law enforcement personnel become immigration agents, it creates a powerful disincentive for immigrants — both documented or undocumented — from interacting with the police at all. And when a part of the population believes that the police are not there to protect them, those people are extremely vulnerable to a wide range of criminal activity. Communities, they argue, can only be safe when everyone in the community trusts that the police are there for them.

After the DOJ letters arrived yesterday, local elected officials rushed to respond with another round of defiant public statements, including Seattle Mayor Jenny Durkan, City Council member Lorena Gonzalez, and King County Council Chair Joe McDermott and King County Executive Dow Constantine.

As City Attorney Pete Holmes pointed out last month, there is currently an injunction in place preventing the Trump administration from enforcing the president’s order cracking down on “sanctuary cities,” including exactly the enforcement of 8 USC 1373 that the DOJ is now pressing. That arguably puts the federal government in contempt of court. It will be interesting to see if any of the jurisdictions that received letters yesterday choose to litigate that issue.

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