Will "sanctuary cities" survive?

This article was originally published in The Crime Report.

As Congress prepares to consider a crackdown on so-called "sanctuary cities" that refuse to cooperate with federal immigration rules on reporting undocumented residents, immigration advocates hope the case of Ernesto Galarza will serve as a reality check.

Galarza was arrested by Allentown, Pa. police in November 2008, after an undercover detective bought cocaine at the construction site where he worked. Although he was never charged in connection with the narcotics case-and posted $15,000 bail-he was held for four days at the Lehigh County Prison until Immigration and Customs Enforcement (ICE) agents could interview him and determine whether he was a U.S. citizen.

In fact, Galarza already had the documents to prove he was born in Perth Amboy, NJ-including his Social Security Number and driver's license-which he showed to authorities soon after his arrest.

Galarza had fallen victim to a detention order filed by ICE.

Under these so-called "ICE detainers," the agency can request that local jurisdictions hold anyone suspected of being a non-citizen. The Allentown police officer who arrested Galarza, was ostensibly unsure about Galarza's citizenship status and merely following her department's policy of cooperating with ICE when she contacted the agency with details of the arrest.

The only apparent grounds for suspecting Galarza was a non-citizen were that he was obviously Latino and was working at the construction site with three other Latino men who were citizens of Honduras and the Dominican Republic.

Galarza sued the city, the county and the U.S. government for violating his constitutional rights and a March 2014 ruling by the U.S Court of Appeals for the Third Circuit upheld the suit.

The Galarza decision, followed the next month by a ruling from the U.S. District Court in Portland, Oregon in favor of a woman who had challenged local authorities for detaining her without probable cause, was a wake-up call to many communities across the country. It underscored efforts by local jurisdictions to reassess how-or whether-they wanted to collaborate with the federal government on immigration enforcement. And it was a factor that led to the development of the "sanctuary city" concept.

"This idea that ICE can be your local law enforcement butts up against constitutional issues," said Sundrop Carter, organizing director of the Pennsylvania Immigration and Citizenship Coalition.

"The Galarza decision is what prompted a lot of counties to change their policies."

A recent study by the Temple University Beasley School of Law found that after the Galarza decision was issued, 14 Pennsylvania counties-including Lehigh County-adopted written policies stating they will not honor ICE requests, a pattern that was reflected elsewhere in the country. Jails in Colorado enacted a policy stating they will no longer honor ICE requests, as did some Iowa, Minnesota and Nebraska jails. In California, a bill called the Trust Act has limited cooperation with immigration authorities since 2013.

According to some reports, at least 300 U.S. communities now have some version of "sanctuary" protection.

Murder Unleashes Firestorm

But the murder of a 32-year-old San Francisco woman three weeks ago has unleashed a political firestorm that could slow-or halt-the momentum.

Kathryn Steinle died after being struck in the chest by a stray bullet July 1, while walking along a busy San Francisco street. The shot was allegedly fired by Juan Francisco Lopez-Sanchez, a native of Mexico living illegally in the U.S., who had already been deported five times.

Lopez-Sanchez reportedly had seven felony convictions and had just been released from custody after serving a four-year prison term. According to reports, San Francisco authorities refused a request by ICE to notify them when he was released so they could begin a new round of deportation proceedings against him.

This week, Steinle's father, Jim, appeared before a Senate Judiciary committee hearing to appeal to legislators to "take these undocumented immigrant felons off our streets for good."

His comments added fuel to renewed charges that undocumented immigrants are a threat to public safety-and that sanctuary cities themselves are preventing law enforcement from protecting the public.

The House is expected to vote this week on a bill that would bar sanctuary cities from receiving federal funds for some state and local law enforcement programs. The "Enforce the Law for Sanctuary Cities Act," introduced by Republican Congressman Duncan Hunter of California, would impact the State Criminal Alien Assistance Program (SCAAP), which helps offset the cost of incarcerating undocumented immigrants, and the Community-Oriented Policing Services (COPS) program.

Earlier, the Senate committee hearing underscored the depth of anger and concern.

"Enforcing the immigration laws in this country is not a voluntary or trivial matter. Real lives are at stake," said committee chair Sen. Chuck Grassley (R-Iowa), who has introduced a bill that would cut off funding to jurisdictions that do not comply with federal immigration orders, as well as impose a minimum five-year prison sentence for immigrants who return to the U.S. after having been deported.

According to government data, Grassley said, 8,811 ICE detainers were declined by jurisdictions between January and September 2014, and 62 percent of them were associated with people who had been "charged or convicted of a crime or presented some other public safety concern."

But resistance to this growing movement is just as fervent.

Are ICE Detainers Constitutional?

At the heart of the issue is the constitutionality of ICE detainers.

Some legal experts argue that detainers raise two separate Fourth Amendment concerns: first, when law enforcement officials take someone into custody without probable cause and, second, when they detain him or her for more than 48 hours.

Additionally, they add, the detainer-essentially an order from a federal official to a local jurisdiction-violates the Tenth Amendment, which prohibits the federal government from enforcing laws in a local jurisdiction.

Legal experts who study immigration enforcement told The Crime Report that cities that adopt the "sanctuary" designation not only want to be seen as inclusive, welcoming communities, but regard it as a way to ensure safety.

"The basic policy behind a so-called 'sanctuary city' is the community trust idea," said Christopher Lasch, a University of Denver Sturm College of Law professor who writes on the intersection of criminal justice and immigration justice.

"If it's known that your local criminal justice system feeds into the immigration machine ... you're going to have people who are afraid to report crime to police."

Lasch said the death of the San Francisco woman will unfortunately be used "as a pivot point for a lot of the debate about this."

But statistics suggest that immigrants are less likely to be involved in crime than people who were born in the U.S. Men born outside of the U.S., but living in the country, have an incarceration rate five times lower than men born in the U.S., according to a 2007 study by the Immigration Policy Center. The study also found that cities with large immigrant populations-including Los Angeles, New York and Chicago-have seen a drop in crime since 1994 despite a significant increase in the population of undocumented immigrants.

ICE began issuing detainers to local jurisdictions in 2008 as an enforcement mechanism of the newly-launched Secure Communities program, Lasch said, noting that from the beginning they were open to interpretation as to whether they were intended as an order or a request. The program-which gave federal agents access to a database where local police entered arrest information-soon became controversial for its aggressive policies in targeting undocumented immigrants, which led to massive deportations.

By 2011, the program was deporting more than 400,000 people per year; last year the number had decreased to about 316,000. ICE detainers were also down-from 212,455 in 2013 to 161, 322 detainers last year.

The Department of Homeland Security (DHS) ended Secure Communities in December 2014 because it was "widely misunderstood," and embroiled in litigation" and because local officials across the country were refusing to cooperate, U.S. Homeland Security Sec. Jeh Johnson wrote in a Nov. 20 memo. Its replacement, a program called the Priority Enforcement Program (PEP) will issue detainers only in connection with people suspected of a serious crime. The memo argued that PEP will address the constitutional concerns raised by Secure Communities.

The agency is trying to convince local jurisdictions to comply. But despite the backlash caused by the San Francisco murder, this could be a hard sell.

"They want to bring all these jurisdictions back into the fold...it's an important public relations piece for them," Lasch said. "Based on the past history with Secure Communities, I don't expect much change from DHS...I expect that their detention procedures are going to continue under a new name."

During Tuesday's Senate Judiciary Committee hearing, ICE Director Sarah Saldana faced fierce criticism from lawmakers who demanded to know how she would convince "sanctuary" jurisdictions to collaborate with immigration officials.

Saldana said the agency is in the process of meeting with law enforcement officials across the country to talk about how the PEP program differs from Secure Communities.

"We are removing the constitutional objection that we're detaining people, or asking them to hold people, without a basis," Saldana said during the hearing. "Now we're saying, 'Don't hold them 48 hours in a typical situation. Just give us notice 48 hours before the release of an individual.'"

However, if there is probable cause or an indication that the individual has committed a crime, and there is "evidence that we can show the local jurisdiction," she added, ICE will ask local authorities for a 48-hour detainer.

It remains unclear whether the new program will resolve the constitutional problems raised by its predecessor.

"There's a big chasm between setting policy on immigration enforcement and having that policy actually come to life at the rank and file level," said Juliet Stumpf, a Lewis & Clark Law School professor who researches the relationship between immigration law and criminal law.

"We do know that the states and local communities are refusing these ICE detainers."

Ingrid Eagly, a U.C.L.A. School of Law professor who studies the intersection of immigration and criminal justice, said the momentum surrounding recent lawsuits and legislation has made ICE detainers a focal point of debate in recent years-but the research has mostly looked at how the immigration system treats non-citizens.

"Scholars really haven't looked as much at the criminal side...what is actually going on in the criminal justice system?" Eagly said. "Should police officers who are in the field be asking questions about immigration status even when they're not investigating a crime?"