May 232016
 
Owen Courrèges

Owen Courrèges

Long ago, the law respecting the idea of sanctuary was embedded in British common law. Fugitives would be immune from arrest in sacred places, such as places of worship. You’ve probably seen a movie where some neer-do-well runs into a church with police on his heels and yells “sanctuary,” as though he’s discovered some trump card against getting caught.

However, sanctuary wasn’t quite the unequivocal boon to absconding felons as it would first appear. If he made it inside a church, the fugitive would then have 40 days to surrender to secular authorities or confess their crimes and be subject to forfeiture of their worldly possessions and permanent exile, i.e., “abjure the realm.”

This is the historical basis for the so-called “sanctuary city” movement, whereby local authorities are prohibited from inquiring about peoples’ immigration status, and are further restricted from assisting federal immigration agents. The policy originated in Los Angeles in 1979, and since that time has spread to dozens of major cities.

New Orleans actually came late to the game, becoming a sanctuary city on February 28th of this year. Bizarrely, the policy came about as a part of reforms mandated by the consent decree with the U.S. Department of Justice (you know, the part of the executive branch charged with prosecuting federal crimes, including immigration violations).

Predictably, the explicit refusal of local law enforcement to enforce an entire branch of federal law has been met with serious opposition.

Earlier this month, the Louisiana House passed two bills that would penalize sanctuary cities (i.e., New Orleans). The first, HB 1148, would ban sanctuary cities from using the state to borrow money for construction projects. The second, HB 453, would require sanctuary cities to compensate crime victims assaulted by illegal immigrants that were previously interviewed by law enforcement sans a discussion of their immigration status.

Louisiana Attorney General Jeff Landry is a major proponent of both measures. He states his goal glibly: “I think the city of New Orleans should change their policies.”

Congress has also taken notice. Just this week, Reps. Bob Goodlatte, R-Va., chairman of the House Committee on the Judiciary, and Trey Gowdy, R-S.C., chairman of the subcommittee on immigration and border security, wrote to U.S. Attorney General Loretta Lynch to express their dismay over the federal government’s involvement in New Orleans’ sanctuary city policy.

“It is outrageous that DOJ would seek a consent decree that would inhibit the ability of the federal government to enforce federal law,” wrote Reps. Goodlatte and Gowdy.

The thing is, they’re absolutely correct. It is ridiculous for the U.S. Department of Justice to restrict a city’s ability to cooperate with federal law enforcement and enforce federal law. While the Obama Administration may favor lax immigration laws, another administration may just as easily view federal firearms restrictions with disfavor and demand that local governments refuse to cooperate with ATF agents. It’s a bad precedent to set.

On the other hand, sanctuary city policies do arguably serve some purpose beyond helping people in violation of federal immigration law. Criminals tend to prey on illegal immigrants precisely because they believe that people here illegally don’t cooperate with law enforcement out of fear of deportation. A policy whereby local law enforcement enforces immigration laws across the board would tend to validate those fears, providing criminals with easy prey and feeding illegal criminal enterprises.

Put another way, we definitely shouldn’t be in the business of helping deport victims of crime. That’s counterproductive to local law enforcement.

On the other hand, a policy more narrowly tailored to protecting crime victims and cooperative witnesses should be possible. As written, the sanctuary city policy adopted by the NOPD needlessly ties the hands of police to raise the specter of a deportation proceeding against an uncooperative witness or to assist federal immigration agents in ancillary ways.

There might also be times when police strongly suspect an illegal immigrant of involvement in criminal activity (i.e., where they appear to be a member of a street gang), but nevertheless lack probable cause to arrest them for anything. In those cases, asking federal immigration agents to pick them up may well make the community safer.

Any rule that imposes a straightjacket on police is likely more political than practical, and thus the current policy is ill-considered. Police should have at least some discretion to invoke any law whether it be state, federal, or local, if it can legitimately assist them in the performance of their duties. Moreover, they should not be compelled to treat immigration agents as if they’ve contracted the plague and deny them any assistance whatsoever.

Even the original law of “sanctuary” was both nuanced and limited. It was not a blank check for avoiding prosecution; it allowed people a temporary safe haven, but not a permanent avoidance of responsibility for those who break the law.

It is profoundly regrettable that the City of New Orleans has wound up becoming the flashpoint in the continual battle over how to handle illegal immigration, but there’s no valid reason why we can’t craft a policy that delivers proper guidance to law enforcement and provides some victory to both sides of the debate over sanctuary cities. Stubborn political agitprop is not an excuse.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

  • Kodaq G

    agitprop is used wrongly. this is not drama, literature or theatre used for propaganda. it is just wrong for local politicians to meddle in national issues that affect everyone…not just the illegal immigrants. we must protect our citizens by every means possible.

    • Owen Courrèges

      Kodaq,

      I meant “agitprop” in the sense that this is all political theater designed to rile up the base on both sides of the aisle. Nobody seeks a middle ground on immigration.

  • doncro2

    Good article. Although a former legacy INS and DHS employee who advocates the enforcement of immigration laws, I do not support delegating immigration enforcement authority to local, state, or even other federal law enforcement agencies (LEAs). Immigration law, rules, policies, procedures, systems, etc. are simply way too complex; not to mention numerous other issues and vulnerabilities. I am, however also opposed to “sanctuaries” of any kind, especially those harboring illegal/undocumented aliens suspected of, or known to have, engaged in criminal activity(ies). Having experience working with federal, state, and local LEAs, I believe the solution centers around education, communication, and collaboration. DHS’ Immigration and Customs Enforcement (ICE) and LEAs should develop a relationship of trust whereby they can exchange information in a timely and effective manner that is focused on identifying and removing {initially from the community} illegal/undocumented aliens and immigrants who pose a threat to public safety and national security. LEA officials need not know much more than the types of cases (potential threats) they need to communicate with ICE on, and when they aren’t sure, who to reach out to for clarification purposes. Yes, common sense will suffice. [www.immigrationintegritygroup.com]

    • Owen Courrèges

      doncro2,

      Well said. Of course, local law enforcement should not perform immigration enforcement on its own, but it should refuse to cooperate with ICE either. There’s a middle ground here, and the current sanctuary city policy is at the far extreme.

  • Turlet

    Criminals always prey on other criminals. Illegal immigrants are criminals by definition. The solution is getting criminals off our streets, not protecting one class of criminals from another. Should we protect drug dealers when their stash of drug money was taken by another drug dealer? The illicit gains of illegal immigrants need not be protected, as you deserve no protection if you don’t even deserve to be here. In theory, our native criminals would have more job opportunities if our alien criminals were removed, although as they proved after Katrina, they are far too lazy to ever take those jobs.

    • Owen Courrèges

      Turlet,

      I agree, but I would also argue that police need to be able to investigate more serious crimes committed against minor lawbreakers with the understanding that they’re not going to arrest them or have them deported. Otherwise, you create a community that is not policed at all where crime can flourish and eventually spill over. Even if you don’t care about illegal immigrants, the fact is that crime can’t be contained like that, and it’s bad for the entire city.

      In short, I think criminologists have a good point there, but I also think many people take it way too far to where immigration enforcement supposedly has to be wholly separate from all other law enforcement. Why shouldn’t NOPD direct traffic during ICE operations? Why shouldn’t they report illegal immigrants who they know to be associated with a criminal element? Why does it have to be all or nothing? This is what I’m asking.

  • G in Uptown

    If you are a supporter of sanctuary cities…. One question.

    What federal law am I (as a U.S. citizen) allowed to break, over and over and over, that I can be afforded protection from incarceration?