State and Local Legislation Bulletin
Carl Little, Esq., Editor · Issue 29, October 2009
In this Issue:
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San Francisco's Board of Supervisors Expands its Sanctuary Policies
After months of controversy, the San Francisco Board of Supervisors voted on October 20 to expand its sanctuary policies and restrict law enforcement officers from reporting illegal alien juveniles to federal officials until after they have been convicted of a crime. This new policy overturns a policy ordered by Mayor Gavin Newsom last summer that required police to report suspected illegal alien juvenile offenders to federal immigration authorities after they had been arrested. This policy, the New York Times reports, was implemented only after the city was embarrassed by revelations that the city had sent a group of teenage Honduran crack dealers to a group home instead of turning them over to Immigration and Customs Enforcement (ICE). These offenders subsequently walked away from the group home. The city was also embarrassed by a 2008 triple murder, which prosecutors say was committed by Edwin Ramos, a suspected gang member and an illegal alien from El Salvador. Ramos had previously been arrested as a juvenile by the San Francisco police but not referred to ICE.
The same New York Times article describes an August 2009 legal memorandum from city attorney, Dennis Herrera, to Mayor Newsom that explained that the ordinance could "adversely affect" the city's position in several pending cases concerning its sanctuary policy, including a criminal investigation by the United States attorney's office in San Francisco. A spokesman for the Mayor also said the ordinance could attract a legal challenge to San Francisco's entire sanctuary policy. IRLI can provide a copy of the Herrera memorandum in PDF format to interested parties upon written request.
In 1996 Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) otherwise known as "welfare reform," followed several months later by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA"). These two related statutes contained language that barred a state or local government from placing any restrictions on reporting or sharing the immigration status of any individual by its personnel with any other government agency, at any level. See 8 U.S.C. §§1373 and 1644. IRLI believes that the current policy as passed by the San Francisco Board of Supervisors violates this federal prohibition and is now exploring litigation strategies to challenge it.
Montgomery County Maryland Police Chief Implements Sanctuary Policy
On October 27th the Washington Examiner reported that Montgomery County Maryland Police Chief J. Thomas Manger has instructed his department by memo that ICE, "will NOT be contacted, regardless of the individual's legal status and/or perceived gang affiliation," when a foreign national is arrested for a nonviolent crime. A spokesman for the department said the memo was in response to an allegation made by an illegal alien that police had beat him and in retaliation for his reporting the incident, turned him over to ICE for deportation.
The paper reports that the memo goes on to try to explain the new policy stating, "Many of you have developed professional relationships with ICE agents over the course of your careers and we are not trying to stifle the great work that each of you do on a daily basis." However, the new rule was necessary "due to the very sensitive nature of this issue and the absolute need to maintain the trust and confidence in our community."
Regardless of the politics behind Chief Manger's edict, the bottom line is that these policies and practices conflict with very clearly written federal law and are illegal as the paper reports. In addition to the illegality of such policies, the sanctuary policies have negative consequences that profoundly affect the law abiding citizens of these communities even to the point of endangering their citizens. On the same day that Chief Manger's memo was made public, the same newspaper also published a report on how gangs are fleeing from jurisdictions in Northern Virginia, that are cracking down illegal aliens and other crimes, and fleeing to jurisdictions like Montgomery County and Washington D.C. who tell their police not to report suspected illegal aliens. The article goes on to report that the Northern Virgina anti-gang task force, since its creation on 2003, has arrested 952 gang members, 40 per cent of whom were illegal aliens.
Colorado Lawmaker to Introduce Reduced Tuition Bill for Illegal Aliens
The Colorado Springs Gazette reported on October 14th that State Senator Paula Sandoval (D-Denver) plans to offer a bill in the next Colorado legislative session that would offer reduced tuition rates to illegal aliens. Senator Sandoval calls her bill, the "Workforce Development and Unsubsidized Tuition Act." She claims the bill will avoid the problems of previous failed attempts in the legislature to pass in-state tuition for illegal aliens by creating a new third tuition rate.
While such measures are very unpopular with the American electorate, they are also illegal under federal law unless the same benefit is offered to all U.S. citizens regardless of residence status. A similar provision failed in the last Colorado legislative session.
Majority Agrees with Sheriff Joe Arpaio
For nearly a month now the press has been having a field day with the Department of Homeland Security's decision not to continue a 287(g) agreement with Maricopa County, Arizona Sheriff Joe Arpaio. Late last month, the Department of Homeland Security announced that it would not continue to give Maricopa deputies authority through the 287(g) program authority to make immigration investigations and arrests. A defiant Arpaio argued that the investigations and the arrests would continue under the authority his department has under state and federal law. Several misleading news stories and op-ed pieces designed to embarrass the Sheriff argued that no such authority existed.
While the press continues to misrepresent the state of the law on this matter, IRLI believes it is important to set the record straight. Under existing law and court precedent, state and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior federal immigration approval or knowledge as long as they are authorized to do so under state law. An important 1999 decision in the 10th Circuit Court of Appeals, U.S. v. Vasquez - Alvarez, upheld the independent authority of local police departments to assist federal authorities in enforcing federal immigration law. In that case the defense argued that state authorities were limited by 8 U.S.C. 1252c which requires: (1) the arrest to be authorized by state law; (2) the alien was previously deported under a felony conviction; and (3) prior to the arrest the local officer obtained appropriate confirmation of the alien's immigration status from federal immigration authorities. The court, however, disagreed and found that the the legislative history and the design of the statute were a "clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws." The U.S. Supreme Court later declined to hear the defendant's appeal.
When enforcing federal immigration law, local law enforcement officers may detain an individual for a brief warrantless inquiry when the officer has a reasonable suspicion an individual is or has engaged in criminal activity, including being illegally present in the country. This is known as a "Terry stop" after the U.S. Supreme Court Case, Terry v. Ohio. Traffic stops and routine investigations often bring illegal aliens into the presence of law enforcement. In the U.S. Supreme Court case Muehler v. Mena, the court construed a "Terry stop" in the context of illegal aliens to mean that an officer does not need reasonable suspicion to ask about someone's immigration status, so long as the illegal alien is lawfully stopped. Courts have construed this principle to apply when an illegal alien is detained in a lawful traffic stop in U.S. v. Vasquez - Alvarez (10th Circuit 1999.) Therefore, an officer can ask questions unrelated to the purpose of the stop without implicating a separate independent Fourth Amendment event because mere police questioning is not a "seizure." Also, in 2009 the U.S. Supreme Court clarified in Arizona v. Johnson that this questioning is not limited to the driver, but also passengers in the vehicle.
IRLI recently filed a friend of the court (amicus) brief on behalf of the National Fraternal Order of Police in the federal First Circuit Court of Appeals in the case of Estrada v. Rhode Island. The brief provides a full analysis of how local police officers can develop reasonable suspicion to question persons detained in a lawful traffic stop concerning their immigration status, and how suspicion of immigration law violations can develop into probable cause to arrest and transfer aliens into federal custody. Please contact IRLI if you would like to review an electronic copy of the amicus brief in PDF format.
As it turns out, the media onslaught seems to have backfired and a recent poll reported by the Arizona Republic shows the Sheriff with a 61 percent approval rating.
The Census, Illegal Aliens, and What State and Municipal Government Can Do
Submitted by: Patrick J. Charles, IRLI Legal Analyst
In October the Census Bureau's counting of non-citizens for the apportionment of seats in the House of Representatives received nationwide attention. What brought this issue to the forefront was an amendment by Senator David Vitter which would require the census to add a question about citizenship status to the 2010 short form, the most widely used census questionaire. Whether the Vitter Amendment will pass is uncertain, but State and municipal governments need not wait for this issue to be settled before taking independent action.
Historically Congress has included non-transient aliens for apportionment of congressional seats, and required the States to divide their congressional districts into "equal proportions." However, few state legislators are aware that the power to determine whether non-citizens should be part of the formula in apportioning State legislative voting districts is exclusively a decision of the State government. In other words, it is within each State's legislative power to exclude non-citizens in determining voting districts for State legislature and municipality government seats. The legal principle supporting such legislation is the "one-person, one vote" standard the United States Supreme Court adopted in Reynolds v. Sims, 377 U.S. 533 (1964).
The "one-person, one-vote" principle allows State and local governments to prevent the dilution of citizen voting power. In fact, multiple federal courts have upheld State and municipal governments' power to enact legislation insuring that their citizens' voting power is not diluted by non-citizen participants. For instance, in Barnett v. City of Chicago, 141 F.3d 699, 704 (7th Cir. 1998) the court held, "The right to vote is one of the badges of citizenship. The dignity and very concept of citizenship are diluted if noncitizens are allowed to vote either directly or by the conferral of additional voting power on citizens believed to have a community of interest with the noncitizens[.]" Similarly, in Meza v. Galvin, 322 F. Supp. 2d 52, 60 (D. Mass. 2004), a court rejected a proposed apportionment plan where the challengers wished to take into account non-citizens. The court expressly held "because non-citizens by definition cannot vote, it makes little sense to consider them for purposes of determining whether the particular remedial scheme proffered by plaintiffs would adequately remedy the alleged vote dilution."
Unless a state constitution mandates otherwise, State and municipal governments are not required to enact citizen-based apportionment legislation. In Burns v. Richardson, 384 U.S. 73, 92 (1966) the United States Supreme Court held that while States and municipal governments may exclude non-citizens in determining district apportionment, the "decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere." This means that, in practical terms, a lawsuit challenging a State legislature's decision to include non-citizens in determining their respective voting district lines would be difficult to win.
Nevertheless, State legislatures and municipal governments clearly can do their part in putting the power of the vote back into the hands of its citizens. Such legislation not only ensures that each citizen's voting power is not diluted, but also sends a message to Congress that it should seek to remedy the Census Bureau's counting of non-citizens for apportionment purposes. For further information on enacting citizen-based apportionment legislation please contact IRLI at (202) 232-5590 or by email at info@irli.org.