On May 18, the House Judiciary Committee is scheduled to markup “The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act” (H.R. 2431, hereinafter “Davis-Oliver”), a modified version of a previous bill with the same name introduced in 2015, and the Strengthen and Fortify Enforcement (“SAFE”) Act, which was introduced in 2013.
The Davis-Oliver bill would dramatically reshape interior immigration enforcement in the United States, forcing state and local law enforcement to divert their limited resources away from existing public safety threats, instead focusing them towards immigration enforcement. Davis-Oliver would explicitly permit states and localities to pass their own immigration laws while affirmatively granting state and local law enforcement the authority to enforce federal immigration laws, instead instituting a confusing patchwork of state and local immigration laws. In effect, this would overturn the Supreme Court’s Arizona v. U.S. decision that reiterated the longstanding principle that immigration enforcement is a federal responsibility,
At the same time, Davis-Oliver would prohibit jurisdictions from having or adopting community trust policies that restrict officers from inquiring about the immigration or citizenship status of individuals, a change that would devastate trust between immigrant communities and law enforcement, harkening back to Arizona SB 1070.
The bill would require that state and local law enforcement agencies enforce federal immigration detainers, which courts have determined to be voluntary. It would immunize states and localities from civil liability for good-faith enforcement of detainers, but would do so in a way that does not properly address the 4th amendment problems behind detaining people in the absence of a warrant or probable cause determination. The bill also creates a private right of action for victims of felony offenses and their families that would allow them to sue jurisdictions that do not honor detainers, where the perpetrator of the crime was the subject of the detainer that was not honored.
States or localities found to be in violation of these provisions could lose broad categories of federal grants relating to law enforcement, terrorism, national security, or immigration or naturalization. Conditioning grants in this manner may be in tension with court decisions limiting the federal government from compelling state and local jurisdictions to carry out federal priorities.
Davis-Oliver would criminalize unlawful presence of undocumented people in the United States, which is currently a civil offense, making criminals out of millions and subjecting them to criminal prosecution, and increases penalties for unlawful entry and reentry. The bill would also broaden and create new grounds for deportation, curtail discretionary relief from removal, and increase the number of people subject to mandatory detention, and would add new categories of immigration violators to federal crime databases. Davis-Oliver would also remove humanitarian protections afforded to refugees and other victims of violence, barring some from adjusting status or obtaining citizenship.
Davis-Oliver also places limits on the extension of Temporary Protected Status designations (requiring congressional action for extensions), provides for the continued detention of children in family detention, and creates additional screening and vetting requirements for those seeking visas or petitioning for admission to the U.S.
By criminalizing the majority of the undocumented population and dramatically ramping up local law enforcement’s role in immigration enforcement, the bill is likely to drive immigrants deeper into the shadows. Some are concerned that this approach could have devastating effects on community trust, as immigrant victims and witnesses might be less inclined to cooperate with state and local law enforcement. Such an enforcement-heavy approach risks straining the limited resources of law enforcement agencies, turning law enforcement’s focus to those who are merely out-of-status instead of those who pose threats to the community.
The bill is named for two California police officers killed in the line of duty by an undocumented immigrant.
Author: Laurence Benenson