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President Trump’s Confusing New Attack on Sanctuary Cities

This morning, Attorney General Sessions announced the anticipated Trump administration crackdown on Sanctuary Cities. In his speech, AG Sessions urged state and local governments to abandon sanctuary policies, suggesting that jurisdictions continuing such policies will be denied Justice Department grants. However, while he spoke broadly of sanctuary cities, the AG narrowed his language in referencing grant denials, suggesting such would only occur where the policy leads to a violation of 8 U.S.C. § 1373. This leaves it unclear if he was announcing a new, more aggressive policy, or simply was reiterating existing policy.

This blog has previously discussed the Obama administration’s interpretation of 8 U.S.C. § 1373 and the limitations on the enforcement of that statute. (See: First Suit Filed Over Sanctuary Cities Order and President Trumps Toothless Attack on Sanctuary Cities). If the Trump Administration is attempting to go further, to force state and local governments to abandon sanctuary policies and enforce immigration law, then it may well be acting unconstitutionally. That point is well discussed here.

One thing is clear, the AG believes that state and local governments must comply with immigration detainers. He is wrong.

A detainer is a request, not an order. 8 C.F.R. § 287.7(a). Interpreting this provision, Federal District Magistrate Judge Stewart concluded in Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014) that detainers are not mandatory and that agencies are free to release individuals named in such a detainer.  In doing so, Judge Stewart followed the holding of the Third Circuit in Galarza v. Szalczyk, 745 F.3d 634, 640 (3d Cir. 2014). Subsequent cases have reached the same conclusion.

In Printz v. United States, 521 U.S. 898, 933, 117 S. Ct. 2365, 2383 (1997) the Supreme Court held “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Federal immigration law reflects this principle. It contains no provision requiring state or local governments to enforce immigration law. In fact is signals the opposite. 8 U.S.C. § 1357(g) provides the AG authority to enter agreements with state and local governments for their assistance with the enforcement of immigration laws. Paragraph (9) of that subsection makes clear that state and local governments can refuse to enter such an agreement. This voluntariness provision cannot be squared with the AG’s speech of this morning.

Let the Prosecutor Decide!

I was all set to write a long post on the Ninth Circuit’s decision in Tatum v. Moody, then I found that Daniel Barer at the Government Liability Update had beat me to it! Read his post for the juicy details!

In Tatum, the Ninth Circuit held that under some circumstances law enforcement officers may be liable under § 1983 if they withhold exculpatory information from prosecutors. According to the court:

“Where, as here, investigating officers, acting with deliberate indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty, fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth Amendment.”

Unlike a lot of court decisions, the Tatum court also tells officers how to avoid this liability, don’t hide information from the prosecutor. As the court notes, prosecutors have a global perspective on the case, a rigorous understanding of the applicable law, and legal authority to dismiss charges, if appropriate. So tell them everything and let them decide what needs to be disclosed!

For lawyers handling police practices cases, this is a must read decision. The highlights:

  • It invites Supreme Court review by following circuit precedent that post-arrest incarceration claims arise under the Fourteenth Amendment while footnoting that its holding conflicts with at least one other Circuit, and that a plurality of Supreme Court justices have also suggested the Fourth Amendment governs such claims.
  • It also reconciles some conflicting Ninth Circuit case law in the area.
  • Discusses the distinct responsibilities of jailers, investigating officers and prosecutors faced with claims or evidence that the wrong person has been arrested.

Just be sure to read the whole case as even the last footnote makes an important point!

Don’t Touch That Baggie!

Patrol officers bring in an individual arrested for felony drug possession. While processing him for housing, jail deputies run into a problem when the time comes for the visual cavity search. The subject complies with directions to strip, but when instructed to bend, spread and cough, he instead moves his hand toward his right buttock in an apparent attempt to push an item inward. After a struggle, deputies lean the inmate against the wall, bracing his body in such a manner that he ends up being bent over. At that point they see what appears to be a plastic bag partially protruding from subject’s rectum. What do they do now?

Call for a warrant says the Ninth Circuit, because simply removing the bag violates the Fourth Amendment. The opinion can be accessed here.

Oral Argument Alert

Florence v. Board of Chosen Freeholders of Burlington County, et al. will be argued on Wednesday this week.  Florence addresses the constitutionality of strip searching detainees prior to their housing at jail.  The SCOTUSBlog has a argument preview here