Anti-Sanctuary Policies: When State Law Interferes with Public Safety and Your Civil Liberties

By Amanda Cappelletti, Frankel Legislative Fellow, ACLU of Pennsylvania

Currently, the Pennsylvania Senate is considering a bill to punish municipalities in the Commonwealth that don’t go along with the unconstitutional actions of federal immigration authorities. To achieve this, House Bill 1885 would hold a so-called “sanctuary municipality” open to civil lawsuits for the actions of individual residents. It also withholds all state money from these cities and municipalities, such as funding for drug and alcohol treatment, domestic violence centers, and other essential services that municipalities provide.

Let’s be clear: There is no such thing as a “sanctuary city.” Immigration and Customs Enforcement (ICE) has jurisdiction everywhere in the United States. It is their job to enforce federal immigration law. Local governments have enough to worry about without the added burden of doing the feds’ job for them.

While there are many problems with this bill, one of the most glaring is that it demonstrates a clear lack of knowledge about what sanctuary policies are and why we need them. Being in the country without immigration status is a civil offense investigated by ICE. If ICE believes local law enforcement has an undocumented citizen in custody, they issue a detainer request. This asks local law enforcement to hold that person for 48 hours past their initial release date and time.

Sanctuary policies support public safety and policing goals. Witnesses and victims of crime are more likely to come forward and cooperate with law enforcement authorities when they do not have the threat of deportation looming over them. Simply put, sanctuary policies are a way of building trust between law enforcement agents and the communities they serve. When that trust is established, police are better able to pursue all criminals, making the immediate and surrounding communities safer.

Perhaps not as glaring, but certainly more pressing is the fact that HB 1885 blatantly ignores the constitutional consequences of complying with ICE detainers. Detainers are issued by ICE agents, without any authorization or oversight by a judge or other neutral decision makers. They are not supported by probable cause or any actual evidence at all. Without the constitutionally guaranteed safeguard of a warrant, detainers can and do lead to the illegal detention of individuals who have not violated any immigration laws and are not deportable. According to its own records, ICE has erroneously issued more than 800 detainers for U.S. citizens since 2008.

ICE detainers ask local law enforcement agents to blatantly violate civil liberties and act unconstitutionally by holding individuals without probable cause. As a result, numerous civil lawsuits claiming unreasonable search and seizure have been filed against municipalities and cities. Ultimately, federal courts have ruled that ICE detainers violate the Fourth and Fifth Amendments. One of the leading cases in this matter took place in Pennsylvania. Since Galarza, thirty-three counties have taken steps to ensure its citizens’ constitutional rights are protected, and have policies to NOT honor ICE detainer requests.

HB 1885 is so poorly written that it even includes a fictional legal standard. The bill requires law enforcement to inquire into the immigration status of someone they’ve arrested if they have “reasonable cause” that the person is in the country without authorization. “Reasonable cause” is not a legal standard. Despite three committee votes and one vote on the floor of the state House, no one in the General Assembly has bothered to fix this obvious flaw.

And that provision- carried out in a worst case scenario- could encourage police departments to engage in racial profiling and arrest people for petty offenses (like so-called disorderly conduct) for the sole purpose of checking their immigration status.

HB 1885 will fracture the already fragile trust between law enforcement and communities. It takes away a city or municipality’s much needed state funding, while also leaving it wide open for civil lawsuits from victims of unforeseen crime. If the municipality or city complies with HB 1885, it leaves itself open to violating the U.S. Constitution and the civil lawsuits which stem from that. No matter what way you look at it, HB 1885 hurts the citizens of our Commonwealth.

Amanda Cappelletti is the 2016–17 Frankel Legislative Fellow at the ACLU of Pennsylvania. She is also a fourth-year law student and a candidate for a master’s in public health at Temple University.