Background on ‘Sanctuary’ Jurisdictions and Community Policing
Assistant Director for Immigration Policy and Advocacy
March 25, 2016
What is a ‘sanctuary’ jurisdiction?
There is no single definition of what comprises a “sanctuary” jurisdiction. The term, which is borrowed from the church-centered sanctuary movement of the 1980s, is not defined by federal law and has been applied to a wide variety of jurisdictions, from those that have passed ordinances barring many types of cooperation with federal immigration authorities to those that merely have expressed concern about controversial state-level immigration enforcement laws, such as Arizona’s SB 1070.
Immigration enforcement is a federal responsibility
Immigration enforcement always has been primarily a federal responsibility. As the U.S. Supreme Court recently reaffirmed in Arizona v. U.S., the case in which the court struck down much of Arizona’s SB 1070, the federal government possesses “broad, undoubted power over the subject of immigration.” At the same time, federalism principles under the U.S. Constitution limit what Congress can do to mandate that state and local law enforcement carry out federal immigration priorities and programs. Constitutional restrictions prevent the federal government from attempting to “commandeer” state governments into directly carrying out federal regulatory programs.
There are no “law-free zones” for immigration. Federal immigration laws are valid throughout the United States, including in “sanctuary” jurisdictions. Even where a particular city or law enforcement agency declines to honor an U.S. Immigration and Customs Enforcement (ICE) immigration detainer or limits involvement with federal immigration authorities, officers and agents from Customs and Border Protection and ICE are able to enforce federal immigration laws.
Adopting community policing strategies is not being a “sanctuary city”
Over the past three decades, numerous state and local law enforcement agencies have implemented community policing strategies. These policies recognize that state and local law enforcement need the trust of their communities, including immigrant communities, because that trust allows law enforcement to better understand the communities they police and better protect everyone. Successful community policing strategies are tailored to ensure that immigrant victims and witnesses of crimes cooperate with police and that community members share information about criminal or suspicious conduct. Community policing strategies are well-established and effective at fostering trust.
Adopting community policing principles is not the same thing as being a “sanctuary” jurisdiction, as local law enforcement agencies can routinely work together with federal authorities while working with the community to ensure trust.
State and local law enforcement cooperate with federal immigration officials
Most localities, including “sanctuary” jurisdictions, cooperate with federal immigration officials, including honoring criminal detainers accompanied by a warrant or court order, participating in federal task forces and initiatives and providing notification of impending releases of convicted criminals who are undocumented.
Law enforcement needs are specific to each community, and local control has been a beneficial approach for law enforcement for decades. The thousands of state and local law enforcement agencies across the United States each have different priorities, challenges and concerns. A rural county sheriff’s department’s needs will differ from a big city police department’s. A state police agency’s priorities will differ from a university police department’s. Different communities may face different public safety concerns. Decisions are best left to the individual state and local law enforcement agencies, which are best positioned to gauge what they need in order to build community trust and foster cooperation between law enforcement and the community.
Declining to honor immigration detainers is not being a “sanctuary city”
It is misleading and incorrect to conflate “sanctuary” jurisdictions with jurisdictions that decline to honor federal immigration detainers.
Immigration detainers — federal requests to detain individuals suspected of being in the U.S. unlawfully — are highly controversial and their legality in many circumstances is dubious. Because they rarely arise from a warrant or court order, immigration detainers raise significant Fourth Amendment issues, as they request the seizure and/or detention of a person without probable cause to believe that the person has committed a crime. Some federal courts have clarified that states and localities are not required to honor immigration detainers and have held that states and localities may be legally liable for civil rights violations arising from a detainer. For these reasons, many jurisdictions — more than 200, according to ICE Director Sarah Saldaña — decline to honor ICE immigration detainers.
Federalism principles under the U.S. Constitution limit what Congress can do to mandate that state and local law enforcement carry out federal immigration priorities and programs. Constitutional restrictions prevent the federal government from attempting to “commandeer” state governments into directly carrying out federal regulatory programs. This anti-commandeering principle prevents the federal government from ordering state and local officials to carry out certain federal enforcement functions, including holding detainees in accordance with ICE immigration detainers.