Sanctuary Cities: Damned if they Do, Damned if they Don’t

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Since taking office in January, President Trump has attempted to make so-called sanctuary cities bend to his will. While there is no legal definition for a sanctuary city, the term broadly refers to jurisdictions (like cities, counties, or states) that somehow limit their cooperation with federal immigration enforcement. This can be as simple as police officers not asking about immigration status at traffic stops, but it often refers to places that limit the circumstances in which they will keep someone in prison on behalf of Immigration and Customs Enforcement (ICE) after their sentence has been completed. Trump and his Congressional allies have threatened to cut states’ funding to force them to comply with the requests of federal immigration authorities, and this Administration has been especially aggressive in efforts to crack down on cities that won’t detain immigrants on the federal government’s behalf without a warrant. But losing federal grant money is hardly the only risk these cities face when it comes to immigration enforcement in our current broken system. President Trump is creating a Catch-22 situation for local law enforcement and sanctuary cities may end up damned if they comply with ICE requests and damned if they don’t.

The Fourth Amendment Protects Everyone, Regardless of Citizenship or Immigration Status.

The Fourth Amendment of the Constitution of the United States guarantees the bedrock American principle that a person cannot be arrested or imprisoned without a warrant or probable cause.1 This guarantee applies to everyone in the nation—whether or not he or she is an American citizen. That means that regardless of whether someone was born here, immigrated to the U.S. legally, or came into the country illegally, every level of government must abide by the Fourth Amendment and show legal cause if it arrests or detains them.

Yet over the past few years, and increasingly since President Trump took office, the federal government’s policies towards sanctuary cities have come into conflict with this Fourth Amendment right. When an undocumented immigrant is arrested and booked into jail or prison, federal law already requires state and local law enforcement to notify ICE.2 When that immigrant is about to be released, ICE has taken to issuing a “detainer request,” asking the jail or prison to keep him or her in custody for additional time so that ICE can transfer them to a federal immigration detention center.3 These requests from ICE are totally voluntary on the part of local jurisdictions—ICE cannot require them to accept detainer requests. In fact, because immigration enforcement is the responsibility of the federal government, it is prohibited from commandeering local law enforcement to take on that obligation. So detainer requests are essentially ICE asking local jurisdictions, “could you pretty please hold this person in custody for me?”

But detainer requests aren’t warrants, and a request from ICE is not sufficient “probable cause” for a city to keep someone in jail after the charges against them have been dismissed or they’ve served their sentence—because cities aren’t supposed to enforce immigration law. That means when a jurisdiction does accept an ICE detainer request and keeps an undocumented immigrant in custody after the date they are supposed to be released, it is holding that person without a warrant or probable cause.4 This is exactly what the Fourth Amendment prohibits—and courts across the country are holding cities liable for violating it.

In 2014, a federal district court in Oregon found that a county prison violated the Fourth Amendment rights of Maria Miranda-Olivares, an undocumented immigrant, after a similar scenario took place. The court ruled in favor of Ms. Miranda-Olivares after county officials held her for an extra 19 hours based on an ICE detainer request, when she had been convicted but sentenced only to time already served.5 The court said that because local law enforcement was holding her on just a detainer request when there were no federal charges, warrants, or immigration removal orders pending against her, the county was liable for the violation of her constitutional rights.6 Numerous other federal courts have decided similarly or supervised the settlement of cases where constitutional claims were brought against local authorities for holding individuals on ICE detainers—including in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) and Third Circuit (Delaware, New Jersey, and Pennsylvania) Courts of Appeals and U.S. district courts in California, Colorado, Illinois, Oregon, and Utah.7 And in July, the Massachusetts Supreme Court declared that Massachusetts state law enforcement does not have the authority under their state constitution to hold individuals on behalf of ICE. None of these rulings mean that ICE isn’t allowed to enforce immigration law—simply that it has to follow the Constitution when it does and can’t use cities to circumvent the Fourth Amendment.

Ensuring that people cannot be arbitrarily detained isn’t about protecting immigrants—it’s about upholding the Constitution and the freedoms and liberties it prescribes. In our country, law enforcement needs to have a legal basis to hold a person in custody. No city should be forced to violate someone’s constitutional rights and they shouldn’t be punished for refusing to do so.

When Cities Violate Fourth Amendment Rights, They are Financially Liable.

Eagerness to uphold constitutional principles isn’t the only reason states and cities may be dubious of ICE detainer requests. There’s also a lot of money at stake. Courts have ruled that cities are on the hook for damages if they violate a person’s constitutional rights. With an ICE detainer, it is the cities, not the federal government, that are imprisoning people without a warrant or probable cause. Because of this, any city that fulfills a detainer request can be sued and may be held financially liable in court.

Take the aforementioned example of Maria Miranda-Olivares. After settling her case, the bill for the county ended up at roughly $127,000 between what was owed to Ms. Miranda-Oliveras personally and its obligation to pay her court costs and attorney fees.8 Had the case gone to trial, it could have ended up costing the county even more. In another ICE detainer case, New York City had to pay $145,000 to a man after he posted bail but was kept in custody without a warrant for an additional 39 days at ICE’s behest.9 And in Colorado, a county was required to pay a man arrested for a traffic offense $40,000 after he was held for 47 days on an expired ICE detainer request.10

In all of these cases, the local government ended up paying a significant cost because they held people in custody at ICE’s request. The costs of these cases can put cities, especially small ones, at serious financial risk. That’s exactly why, following the lawsuit in Ms. Miranda-Olivares’s case, mayors and police departments across the country began to rethink agreeing to hold people based on ICE detainer requests.11 And many felt they had no choice but to respect the Fourth Amendment and protect themselves from liability.

Unfortunately, cities are now also facing financial risk from a different direction. An executive order by President Trump threatens their funding if they do not comply with detainer requests, and his budget proposal would make holding people based on detainer requests mandatory.12 Legislation has also been introduced in Congress that would cut federal funding and grants to cities that don’t comply with detainer requests. However, neither Congress nor the President can waive away a city or county’s obligations against arbitrary detention under the Constitution. So if holding people in custody based on detainers is made mandatory, cities will be forced into the no-win scenario of deciding between losing out on federal funding or losing money in court for violating our nation’s highest law.


Instead of trapping cities in a financial Catch-22, Washington should be looking to the real reason why sanctuary cities exist in the first place: our broken immigration system. Sanctuary cities wouldn’t be necessary if Congress passed comprehensive immigration reform that finally establishes a functional system. So long as Congress remains unwilling to fix the system, the President shouldn’t use cities and local law enforcement officials that are trying to respect the Fourth Amendment and protect themselves from legal and financial liability as scapegoats.

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