Immediately after his inauguration in January 2016, Mayor Jim Kenney issued an executive order instructing Philadelphia law enforcement to refuse to detain individuals at the request of immigration authorities. This policy, and others like it around the country, has been misleadingly called a “sanctuary city” policy by those who oppose it, and the city’s policy has become a major talking point in the current Pennsylvania Senate race. The state legislature has also weighed in, with bills being introduced that would withhold state funding from cities with policies like Philadelphia’s, or would impose civil liability on the city for crimes committed by immigrants subject to deportation.
As lawyers, it is incumbent for us to understand the scope of the city’s policy and the important constitutional values upheld by that policy. With regard to the scope of the policy, Kenney’s executive order has two distinct components. The first component might be labeled the “community trust” component: Philadelphia law enforcement is not to inform federal immigration authorities of those they encounter whom they suspect to be unlawfully in the United States. The principal justifications for this component of the Philadelphia policy—as expressed by the Major Cities Police Chiefs Association and other law enforcement leaders—is that involving local law enforcement in immigration status questions undermines community trust in law enforcement, and makes it harder for law enforcement to protect victims of crime. If those without immigration status—or those living in mixed-status families—are unwilling to call law enforcement when they have been victimized, then the undocumented will become a target for criminals who know they can commit crimes with impunity.
The current Philadelphia policy also benefits Philadelphia taxpayers, as they do not have to bear the costs of federal detention mandates, nor the cost of federal mistakes. In a number of lawsuits around the country—including a recent suit in Lackawanna County—courts awarded damages against cities for unlawful detention in response to federal requests. In those cases, a U.S. citizen or a legal immigrant not subject to deportation has been held in detention by the city or county because of a mistaken or overzealous request by Immigration and Customs Enforcement (ICE). Courts have held that cities and counties who detain at federal request do so at their own risk. Courts have based their decisions on the legal status of immigration “detainers” (as these federal request are known): they are not legally binding on states, nor are they issued based on a probable cause finding by a neutral magistrate. Rather, immigration detainers are merely requests by an administrative agency to a custodian that the custodian prolong its detention based on the assertion of the agency that it has authority to take that individual into custody.
Beyond the policy of noncooperation, however, Kenney’s executive order upholds an important constitutional value: the right of all persons to be free of unlawful searches and seizures, guaranteed by the Fourth Amendment to the Constitution. In the criminal justice system, we lawyers are familiar with the requirements that arrests be on the basis of a warrant, issued by a neutral magistrate, and on the limitations on warrantless arrests that affect criminal procedure. A criminal lawyer would be surprised if the Philadelphia police or sheriff held a suspect in detention for another law enforcement agency merely because that agency said they wished to take the suspect into custody once Philadelphia was done with them. The Philadelphia police would, rightly, insist that the other agency produce a warrant, issued by a neutral magistrate upon a showing of probable cause, before they would prolong a suspect’s detention.
Kenney’s executive order on immigration applies this general principle of Fourth Amendment law to a federal law enforcement agency, ICE. ICE does have criminal enforcement authority, but makes the vast majority of its arrest and detention requests under its civil enforcement authority. The Supreme Court has long recognized that ICE—nearly uniquely among administrative agencies—does have the constitutional authority to arrest and detain noncitizens pursuant to Congress’s power to regulate immigration. More recently, however, the court has also recognized that immigrant agencies must exercise that constitutional authority within the constitutional limits imposed on all law enforcement agencies. Thus, in a series of cases involving deportable immigrants whose countries would not take them back, the court held that indefinite detention of those immigrants, merely because they were perceived to be dangerous, was unconstitutional.
A recent case from the Northern District of Illinois reinforces this justification for the mayor’s policy. That case, Moreno v. Napolitano, 11-C-5452, is a class action filed on behalf of individuals subject to immigration detention requests; the lead plaintiffs were a U.S. citizen and a nondeportable legal immigrant who were subjected to ICE detention requests while they were in criminal custody. That class action did not reach the Fourth Amendment concerns behind the warrant requirement, as it noted that ICE’s detainer authority already has an important statutory limitation. ICE’s arrest and detention authority can only be exercised only where ICE has “reason to believe” that the person is an alien, is in the United States in violation of law, and “is likely to escape before a warrant can be obtained for his [or her] arrest,” according to Section 287(a)(2) of the Immigration and Nationality Act. The court held that this statutory authority limited ICE’s ability to request further detention of individuals subject to criminal detention, since ICE would normally have time to obtain a warrant if the suspecting undocumented immigrant was in police custody.
Given the courts’ increased focus on the constitutional limits on immigration detention, the mayor’s policy should not be spoken of as creating a “sanctuary city,” since the city will still cooperate with any lawful arrest warrant obtained by ICE. Perhaps the best way to refer to Philadelphia and cities like it is to call them “Fourth Amendment cities”—and to think of Philadelphia’s policy as honoring the Bill of Rights adopted here by the first Congress.
Reprinted with permission from the October 18, 2016 edition of the The Legal Intelligencer© 2016 ALM Media Properties, LLC. All rights reserved.
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