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States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies

In response, a new ‘Freedom Cities’ movement is rising to defend immigrants’ rights.

Photo illustration by Anagraph. Photo by John Moore/Getty Images

States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies

In response, a new ‘Freedom Cities’ movement is rising to defend immigrants’ rights.

Jose “Fito” Salinas is the mayor of La Joya, a tiny Texas city of around 4,000 people less than a mile from the Mexico border. Salinas is 80 years old but still barrel chested, with a good head of hair and a big, silver mustache.

“An old warrior,” he calls himself, adding that “I fear no one.” Still, he worries about a state law called Senate Bill 4.

In 2017, the Republican-dominated Texas legislature passed SB4, which allows local law enforcement to inquire about a person’s immigration status. Under the law, police officers can’t be forbidden from asking people whether they are in the U.S. illegally, nor can they be ordered not to share the information with the Border Patrol or ICE.  

Since Donald Trump became president, similar anti-sanctuary laws have been enacted in other states, including Iowa, Mississippi and Tennessee.

Still, most states do not have such laws, and many states and municipalities forbid their law enforcement from inquiring about immigration status or sharing such information with ICE.

But in November 2017, the Department of Justice sent letters to municipalities and states, threatening to rescind their funding for criminal justice programs unless they scrapped their sanctuary policies. Ironically, the Trump DOJ cited the Obama DOJ’s argument that under Section 1373 Title 8 of the U.S. Code—known simply as 1373 —local law enforcement cannot be forbidden from sharing information about a person’s immigration status with immigration authorities.

By April, approximately three dozen communities had been warned about their sanctuary policies, including New York, Chicago, Philadelphia, Los Angeles, San Francisco, and New Orleans, as well as counties, smaller cities, and states, including California and Vermont.

Several recipients of the DOJ’s 1373 letters ended up in court. Philadelphia and Chicago sued the agency, and California defended itself after being sued. All argued that 1373 violates the 10th  Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Indeed, several judges recognized that the Constitution says nothing about the states sharing an individual’s immigration status with the feds. So far, two federal courts have declared 1373 unconstitutional. As a result, the law can no longer be enforced in Philadelphia and Chicago. In addition, a court in California ruled that the constitutionality of 1373 is “highly suspect.”

Significant challenges to 1373 also have been mounted in hundreds of cities nationwide. Evanston, Illinois, and co-plaintiff the United States Conference of Mayors, whose membership is open to mayors in the 1,408 cities with at least 30,000 residents, sued the DOJ. Evanston and the mayors group won a preliminary injunction barring 1373’s enforcement. If the injunction is upheld on appeal, 1373 will no longer apply in places as big as Brooklyn and as small as Wenatchee, Washington (population 33,962).

But as of yet, no Conference of Mayors cities have enacted new “sanctuary” ordinances, said Lena Graber, an attorney with the Immigration Legal Resource Center, a San Francisco-based organization that disseminates information about immigration laws and encourages challenges to unjust policies. Graber said that Section 1373 is difficult for many people to understand and city councils often reflexively demur and say “we can’t do this because of 1373.”

Cities have to be “gutsy” to confront the federal law and take on the DOJ, Graber said.  

Such gutsiness has come from Texas cities that cannot challenge 1373 because of the anti-sanctuary law SB4. After SB4’s passage, Austin City Council Member Greg Casar, who is Latinx, teamed up with the local community groups Grassroots Leadership, United We Dream Austin, and the Workers Defense Project to craft ordinances to protect immigrants, and people of color in general, against detentions that can lead not only to deportation but jail.

In June, Austin declared itself a “Freedom City,” after council members passed a “cite-and-release resolution” that requires police to cease arresting people for minor crimes such as possession of small quantities of marijuana and instead give them citations.

Austin also passed a resolution stating that if officers stop drivers for traffic violations and ask about immigration status, the people also must be told they have the right not to answer.

Casar shared the Freedom Cities idea with other local officials in Texas, including

Philip Kingston, who serves on the City Council in Dallas. Kingston then spearheaded the passage of a “cite-and-release” policy similar to the one enacted in Austin. It covers a handful of misdemeanors, including low-level marijuana possession. In a few weeks, Kingston told The Appeal, he will ask the Dallas City Council’s Public Safety and Criminal Justice Committee to require that police tell detainees that they do not need to answer questions about their immigration statuses. After that, he will go to the full council. In San Antonio and El Paso, city councils are in the early stages of crafting similar policies.

Freedom Cities, however, have yet to take hold in smaller communities such as La Joya. Before SB4’s passage, Mayor Salinas lambasted Border Patrol agents who entered the town’s ballpark during a 2016 baseball game and arrested a team member’s wife, who was undocumented. He also had his police chief fire an officer after a woman complained that she was asked about her immigration status after she ran a stop sign.

But until The Appeal spoke with Salinas, he had never heard of Freedom Cities. He mulled the concept briefly but then returned to his anxieties about SB4. He wondered whether he could get fined or arrested if he objected to one of his police officers asking a driver an immigration question, or calling the Border Patrol.

It was not a happy thought for the mayor. It was about cities but not about freedom.  

Beto didn’t make it to the Senate, but massive turnout turned important Texas courts blue

Beto didn’t make it to the Senate, but massive turnout turned important Texas courts blue

What you’ll read today

  • Spotlight: Beto didn’t make it to the Senate, but massive turnout turned important Texas courts blue

  • Billionaire pushes Marsy’s Law to victory in six states, despite concerns that It threatens defendants’ rights

  • After victory in Louisiana, Oregon is now the only state using split juries to convict people

  • Oregon lawmakers say they will end split jury verdicts

  • Civilian Complaint Review Board prepares its case against the officer who killed Eric Garner

  • Black sheriffs elected in North Carolina’s largest counties

In the Spotlight

Beto didn’t make it to the Senate, but massive turnout turned important Texas courts blue

Beto O’Rourke may have lost his Senate bid to unseat Ted Cruz, but among the many down-ballot beneficiaries of historically high Democratic  turnout were judicial candidates in the state’s big cities. Harris County, Texas, home of Houston, saw 59 of its judges voted out, in what the Houston Chronicle described as a “Democratic rout.” Democratic candidates “won each of 23 seats on the district judge bench, all 13 on the family court, all four for county civil judge, all 15 county misdemeanor judges and all four county probate judges.” [Zach Despart / Houston Chronicle]

In the misdemeanor courts, the election of 15 new judges, out of 16, could significantly alter the future of a federal lawsuit challenging Harris County’s cash bail system. [Zach Despart / Houston Chronicle] All 16 judges were defendants in the lawsuit and all but two fought reform (those two were also among the 15 voted out). [Maura Ewing / The Appeal and Texas Observer]   The Houston Chronicle, in an editorial shortly before the election, endorsed the challengers in misdemeanor court judge races, citing the county’s cash bail system, described by a federal judge as unconstitutional, and incumbent judges’ opposition to bail reform. See also Our newsletter of Oct. 17, 2018, looked at the efforts to vote out judges complicit in the worst excesses of the system of mass incarceration.

Of the 59 new judges who will take the bench in the different levels of Harris County’s judicial system, an unprecedented 19 are Black women. Their election makes the local judiciary more representative of the county, one of the country’s most diverse. Nationally, women of color are underrepresented among judges. [Hannah Smothers / Cosmopolitan] A 2015 report by the American Constitution Society found that while women of color make up 20 percent of the nation’s population they are only 8 percent  of state court judges.

Another notable newly elected judge is Franklin Bynum, who was endorsed by the Democratic Socialists of America. Bynum, a former public defender, ran unopposed in the Democratic primary for criminal court judge in Houston in April. Speaking with the Texas Observer in April, Bynum said he has seen how the courts work for “the police, the bondsmen and the prosecutors, and people are just the raw material to be chewed up.” His platform called for reining in the use of cash bail and the fees and fines imposed on the poor. [Gus Bova / Texas Observer] Bynum told The Appeal in April that, “Judges were using high bail amounts as de facto detention orders for people charged with these minor offenses. They used bail as an instrument of oppression.” [Melissa Gira Grant /The Appeal]

The Democrats also had remarkable success in the state appellate courts. Prior to the election, of the state’s 14 appeals courts 11 were controlled by Republicans. Three had no Democrats on them at all. The 5th Court of Appeals in Dallas had not a Democrat serve on it since 1992. [Emma Platoff /Texas Tribune] After the election, 8 of the 13 judges on the court will be Democrats. It was one of four appeals courts that the Democrats flipped. [Emma Platoff / Texas Tribune] The “solid Republican” Third Court of Appeals, which covers Austin and therefore has jurisdiction over challenges to laws passed by the Texas legislature, saw a majority of Democrats voted in. Previously, all four justices and the Chief Justice were Republicans. All four justices were voted out. [Yantis Green / San Angelo Live]

One Harris County juvenile judge who was voted out made his feelings about it known in an unusual way. On Wednesday, Harris County Juvenile Court judge Glenn Devlin released nearly all the young defendants who appeared before him, reportedly asking them before letting them go whether they planned to kill anyone. Devlin’s actions caught people by surprise because of his history of harsh sentencing—Devlin and one other Harris County juvenile judge together accounted for more than twenty percent of all young people sent to juvenile prison last year. The Chronicle reported that these two judges “not only sent more teens to juvenile prison, but they also sent them younger and for less-serious offenses” than the third juvenile court judge in the county.  Ninety-six percent of the children sent to juvenile prison from Harris County were children of color. [Keri Blakinger / Houston Chronicle] All three of the judges lost election by more than 10 percentage points. One public defender told the Chronicle that Devlin explained his actions by saying it was what the voters wanted. [Keri Blakinger / Houston Chronicle]

Stories From The Appeal

Marsy’s Law for All founder Henry Nicholas (R) with his mother Marcella Leach (L) attend the 2009 National Day of Remembrance for Murder Victims in Los Angeles, California. [Photo by David McNew/Getty Images]

Billionaire Pushes Marsy’s Law To Victory in Six States, Despite Concerns That It Threatens Defendants’ Rights. Victims’ rights campaign spent more than $70 million nationwide, with more than half of that spent in Florida. [Melissa Gira Grant]

After Victory in Louisiana, Oregon Is Now The Only State Using Split Juries to Convict People. As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy. [George Joseph]

Stories From Around the Country

Oregon lawmakers say they will end split jury verdicts: After Tuesday’s election, when Louisiana voted to end the practice of non-unanimous jury verdicts for felony convictions, Oregon remained the only state where the practice endured. Now Oregon state legislators have said they will introduce two bills in the 2019 legislative session to end non-unanimous juries. One would amend the state constitution and another would refer the question to voters. The Democratic House Majority Leader has said that while the constitutional amendment will ultimately be the best solution, she is also looking for a statutory change that can take effect more quickly. The Oregon District Attorneys Association supports a change to the law though some prosecutors continue to support its use. Oregon’s law dates back to 1934, a time when the Ku Klux Klan was at the height of its power in the state and anti-immigrant and anti-Semitic sentiments were pervasive. [Conrad Wilson / Oregon Public Broadcasting]

Civilian Complaint Review Board prepares its case against the officer who killed Eric Garner: It has been four years since NYPD officer Daniel Pantaleo choked Eric Garner to death and Pantaleo remains employed by the NYPD, on desk duty. A Staten Island grand jury declined to indict him in 2014 and federal prosecutors are still to reach a decision about whether to bring charges. The NYPD, which for four years said it was waiting for federal prosecutors to decide before taking any disciplinary action, announced over the summer that it would no longer wait. Pantaleo is expected to face a trial before an administrative judge from the Police Department. Lawyers at the Civilian Complaint Review Board (CCRB), the independent agency responsible for investigating police misconduct and presenting recommendations to the police commissioner, will prosecute the case. CCRB lawyers have asked a judge to grant them access to the grand jury testimony from 2014, arguing that witnesses’ memories have faded over the years making the transcripts of their testimony necessary for the case. Kerry S. Jamieson, assistant general counsel at CCRB, wrote in the filing that without access to that testimony, “the prosecutors will not be able to present the full facts, which could result in an unfair and unjust outcome.” [J. David Goodman / New York Times]

Black sheriffs elected in North Carolina’s largest counties: North Carolina’s seven largest counties all elected Black sheriffs, five of them for the first time ever.  All seven will replace white men, many of them long-time incumbents. The ousted incumbents include BJ Barnes, sheriff of Guilford County for 24 years; Donnie Harrison in Wake County; and Bill Schatzmann, five-term incumbent in Forsyth County. Paula Dance, in Pitt County, became North Carolina’s first Black woman sheriff in Pitt County. [Joe Killian / North Carolina Policy Watch] Before the election, The Appeal reported on law enforcement abuse of Black residents of Wake County under Sheriff Donnie Harrison and Harrison’s cooperation with ICE through the agency’s 287(g) program.

Thanks for reading. We’ll see you tomorrow.

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How Tuesday’s Sheriff Elections Dealt a Blow to ICE

Local allies of the Trump administration fought challengers over immigration policy.

President Trump met with sheriffs in September.
Mark Wilson / Getty Images

How Tuesday’s Sheriff Elections Dealt a Blow to ICE

Local allies of the Trump administration fought challengers over immigration policy.

Voters around the country put ICE on notice on Tuesday, restricting the federal agency’s law enforcement reach in several states and counties.

“People showed up yesterday because they want their local communities to revolve [around] their values, even if what happens in Washington does not for the foreseeable future,” Elizabeth Alex, the senior director of community organizing at CASA, an immigration advocacy organization, told The Appeal about elections she was tracking in Maryland.

ICE relies on the cooperation and assistance of local law enforcement officials, many of which enter into formal partnerships with the agency. One of the strongest relationships that a jurisdiction can have with ICE is a 287(g) deal, which deputizes local officers to directly investigate the status of the people they detain. As of today, ICE reports that 78 law enforcement agencies are part of 287(g) agreements. That’s a small number  relative to the nation’s thousands of counties—and it is likely to drop once officials elected on Tuesday take office.

In at least three populous counties, voters elected candidates who pledged to withdraw from the 287(g) program.

In at least three populous counties, voters elected candidates who pledged to withdraw from the 287(g) program.

Two of those elections were in North Carolina, where Garry McFadden and Gerald Baker were elected sheriff of Mecklenburg County, (Charlotte) and Wake County, (Raleigh), respectively. In Anne Arundel Co., Maryland (Annapolis), where Republican County Executive Steve Schuh chose to join the program in 2016, Schuh lost to Steuart Pittman, who campaigned on ending both 287(g) and a separate agreement that allows ICE to detain people at the county jail.

Baker’s victory over longtime Republican Sheriff Donnie Harrison may have been the night’s biggest upset. A fixture of the local political establishment since 2002, Harrison had consistently defended practices that immigrant advocates worry will lead to increased deportations. “I know that we are all humans who deserve wonderful lives and I want to support that,” Baker told La Conexión USA in explaining his opposition to Harrison’s participation in 287(g).

I’m a little in shock.Felicia Arriaga, professor of sociology at Appalachian State University and a volunteer at El Pueblo

I’m a little in shock,” Felicia Arriaga, a professor of sociology at Appalachian State University and a volunteer at El Pueblo, an advocacy group for North Carolina’s Latinx community, told The Appeal on Wednesday, adding that the campaign was hardly visible as of early October. But events organized by community organizers and a voter education campaign organized by the ACLU increased the recognition of the election’s stakes for immigration policy. An ACLU official told The Appeal that the organization spent $140,000 in the county.

“Putting people’s stories in the media in English and in Spanish was very helpful for people to feel that they had a say in the process,” Arriaga said.

Fairness Maryland, an advocacy group that the ACLU advises, oversaw mailers and newspaper ads to make the issue of immigration more visible to voters in Frederick County, the home of Sheriff Chuck Jenkins, an ally of the Trump administration. While Jenkins won re-election by 6 percentage points on Tuesdaya margin that was far smaller than the 26 percentage points by which he defeated the same opponent four years ago—immigration policy proved to be a winning issue elsewhere.

Candidates successfully challenged incumbents on their immigration stances even in counties that cooperate with ICE through more discreet mechanisms than 287(g) agreements.

Rich Stanek, the longtime Republican sheriff of Hennepin County, Minnesota, (Minneapolis), appears to have lost his re-election bid to challenger David Hutchinson. As of this writing, Hutchinson led Stanek by 0.44 percent of the vote with all precincts reporting, a margin that was outside what that would trigger a publicly-funded re-count, though Stanek had not conceded.

Sheriff Rich Stanek of Minneapolis drew protest for his treatment of immigrants. He appears to have lost his reelection bid.

Stanek, who was expected to become the next president of the National Sheriff’s Association, was not party to a 287(g) agreement, but had drawn local protests for sharing the birthplaces and release dates of the people whom he detained with ICE, and for giving ICE access to people he detained without ensuring that those detained know their legal rights. Hutchinson campaigned on shifting the Sheriff Department’s immigration policies. “You will notice the difference between…a sheriff who stands with ICE and a sheriff who stands with immigrants,” he said at a party convention in May.

Paul Van Blarcum, the sheriff of Ulster County, New York who is known for aggressive law enforcement practices, lost to Democrat Juan Figueroa. The challenger distributed a flyer during the campaign that assailed Van Blarcum’s “hard-line policy of reporting immigrants under custody to ICE.” “Immigrants should feel safe to seek the protection of the law,” the flyer stated.

In Orange County, California, however, voters elected a new sheriff—Don Barnes—who opposes the state’s sanctuary law and  helped put in place a new policy to circumvent its restrictions on cooperation between local authorities and ICE. In neighboring Los Angeles County, the sheriff’s election remained close as of Wednesday morning. Alex Villanueva, who was endorsed by the immigrants’ advocacy group CHIRLA Action Fund for his promise to restrict the access to county jails that ICE has enjoyed under Sheriff Jim McDonnell, clung to a narrow lead.

Oregon voters upheld their state’s sanctuary law, which restricts cooperation over immigration between local authorities and ICE, decisively rejecting an initiative to repeal it. The initiative was supported by a group of sheriffs from rural counties. They endorsed it by tying illegal immigration to criminality even though studies contradict such a connection.

I would like us to go beyond to say not only do we not assist ICE, but we're putting up a bit of a firewall.Elizabeth Alex, senior director of community organizing at CASA, an immigration advocacy organization

Immigrants rights groups warn that their victories will mean nothing absent continued advocacy around the issue. “The work starts after he’s elected,” Arriaga said of Baker’s victory in Wake County. She added that communities should “pressure and make sure that he’s actually fulfilling his promises.”

“A Democrat in a moderate county stood up and said we don’t stand with an administration that separates families, and I think that’s super-significant” Alex said of Pittman’s win in Anne Arundel County. “I would like us to go beyond to say not only do we not assist ICE, but we’re putting up a bit of a firewall to ensure that our local resources are not being used.”

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