ANTI-SANCTUARY CITY LAWS: WHY THEY SHOULD NEVER BE PASSED IN LOUISIANA.

Author:Reichard, Estefania
 
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TABLE OF CONTENTS INTRODUCTION I. Overview of Sanctuary Cities A. History of Sanctuary Cities B. National Attempts to End Sanctuary Cities II. New Orleans: A Sanctuary City A. Background B. Past Passage Attempts III. Negative Effects of Anti-Sanctuary Legislation A. Anti-Sanctuary Legislation has Negative Effects on Crime Reporting and Overall on Communities B. Anti-Sanctuary Legislation Increases the Financial Burden of State Entities C. Anti-Sanctuary Legislation Violates the Louisiana Constitution's Prohibition Against State Interference with Home Rule D. Anti-Sanctuary Legislation Violates the Consent Decree Between the New Orleans Police Department and the Department of Justice CONCLUSION INTRODUCTION

The United States has long been seen as "the land of opportunity," a "melting pot of opportunity," and "a land of different nationalities." (1) Chinese immigrated during the mid-1800s to be a part of the California Gold Rush; Polish fled "religious and economic conditions" during the mid-1800s through the early 1900's; Italians immigrated during late 1800s to flee famine and poor political conditions; in 1942 the United States allowed Mexican laborers to work in the United States through the Bracero Program. (2) These are only a few marked instances of immigrants leaving their homes to pursue the "American Dream." (3)

In 2016, there were over 300 million people living in the United States and 43 million (4) individuals were foreign-born, which is over thirteen percent of the total population. (5) Of the 43 million immigrants in the U.S., over seventeen percent were reported to be of Hispanic or Latino descent. (6) In 2009 there were 11.3 million unauthorized (7) immigrants living in the United States, but that amount decreased to 11 million in 2015. (8) Unfortunately, the welcoming arms of the United States toward immigrants are closing and pathways to legal status are becoming harder every day. (9) President Donald J. Trump has declared a "war on illegal immigration," (10) and an end to "sanctuary cities" and their federal funding, (11) which has led to anti-immigrant, specifically anti-sanctuary city, talks nationwide, including in Louisiana. (12)

For example, the U.S. Citizenship and Immigration Services (USCIS) have now edited their mission statement, which used to state "USCIS secures America's promise as a nation of immigrants...", but now states "U.S. Citizenship and Immigration Services administers the nation's lawful immigration system..." (13) By removing the phrase "nation of immigrants," the new mission statement further reflects that the current administration has taken serious steps in purposefully forgetting this country's very essence. But as Pulitzer Prize-winning author Junot Diaz recently stated, "If you aren't indigenous you ['re] part of this thing that we call immigration and not wanting to recognize it not only erases the bloody history of why we're here, but it is also a rank attack on the communities that have really powered this nation." (14)

New Orleans, Louisiana is part of a network of over 340 jurisdictions that have "sanctuary" policies or practices in place "to limit involvement in federal immigration enforcement actions." (15) However, attempts have been made through the Louisiana Legislature in order to dismantle and punish any agency or parish which enacts sanctuary policies. (16) If anti-sanctuary city legislation is enacted, it would violate Louisiana's Constitution and lead to adverse social ramifications due to distrust of local law enforcement based on its cooperation with immigration enforcement authorities.

Representatives in Louisiana made attempts to ban sanctuary policies statewide in 2016 through the creation of the Illegal Alien Sanctuary Policy Prohibition Act and in 2017 with the Louisiana Sanctuary City Prohibition Act. (17) Both were designed to prohibit political subdivisions (18) from enacting sanctuary city policies. (19) However, both sanctuary city prohibition acts failed. (20)

The Louisiana Sanctuary City Prohibition Act of 2017 defined a "sanctuary policy" as any policy

whether formally or informally adopted that provides for any of the following: (1) limits the communication or cooperation of state employees with federal agents in order to verify or report someone's status as undocumented; (2) violates 8 U.S.C. 1373; (21) (3) restricting or placing a condition on the cooperation or compliance of requests by federal immigration agents including detainers in order to maintain an undocumented person in custody; (4) requires United States Immigration and Customs Enforcement [ICE] to obtain a warrant or demonstrate probable cause before complying with detainers or other requests to maintain custody of any illegal alien or to transfer any illegal alien to ICE agents; or (5) prevents law enforcement officers of a state or local political subdivision from asking any suspect, arrestee, or other person in custody his citizenship or immigration status. (22) Accordingly, having a policy or practice that fits the above description would leave a jurisdiction or agency subject to a formal complaint on behalf of the state attorney general, along with potential denial of "any request for bonds, notes, or other evidence of ineptness until the sanctuary policy has been withdrawn." (23)

Similar to HB 1148, HB 676 would have prohibited subdivisions in Louisiana from adopting sanctuary policies or practices, creating even more serious repercussions for non-compliance. (24) The bill established compliance as a condition "in order to be eligible for state grant funds or general appropriation funds." (25) Compliance would be measured through receipt of a subject's affidavit expressing compliance with the proposed bill and promised continued cooperation with ICE agents to the state.. (26) Along with conditions in order to be eligible for funding, the bill stated that noncompliance could lead to being "enjoined by a judicial order" and the required act of reimbursing any state funds received by the violating subdivision during their noncompliance period. (27) Additionally, noncompliance of the proposed bill could lead to complaints, investigations, civil action, and civil penalties of up to $5,000 a day against the non-compliant political subdivision. (28)

Now that the country is governed by an Administration that is notably unsympathetic toward undocumented immigrants, Louisiana needs to adopt a stance that protects its communities and political subdivisions that choose to practice sanctuary policies by rejecting any future attempt at punishing sanctuary city policies state-wide. (29) Anti-sanctuary city legislation has no place in Louisiana and the consequences of this sort of legislation would not only hurt the communities in Louisiana but would also leave the state at risk of legal action on the basis of potential unconstitutionality. (30)

This comment gives an understanding of sanctuary city policies and practices while analyzing the serious legal and social ramifications that the state of Louisiana would face if anti-sanctuary city legislation were passed. Part I presents an overview of what sanctuary cities are facing, along with the political environment surrounding them and national attempts to dismantle these policies. Part II presents the history of sanctuary cities in Louisiana and past attempts to dismantle these types of policies within the state. Part III presents the legal and social ramifications that Louisiana would face if anti-sanctuary city legislation were passed. In my closing, I will discuss why sanctuary city policies are beneficial to all communities of the state of Louisiana.

  1. OVERVIEW OF SANCTUARY CITIES

    1. History of Sanctuary Cities

      Sanctuary cities first appeared in the 1980s as a result of pressure from churches of various denominations to provide refuge to Central Americans fleeing from civil war. (31) During this time, the United States federal government denied refugee status to many Central Americans, even though many countries in Central America were facing severely violent and catastrophic civil wars. (32) The Los Angeles Police Chief Daryl F. Gates implemented one of the first sanctuary city policies in 1979. (33) The policy was called "Special Order 40," (34) and it "prohibited officers from initiating contact with anyone for the sole purpose of learning their immigration status and ruled out arrests for violation of U.S. immigration law." (35)

      However, there is no uniform definition of what a sanctuary city policy is. The term typically refers to two distinct provisions that may include (1) limiting cooperation between local law enforcement and federal government officials by not honoring ICE administrative detainers, therefore, not keeping individuals in custody due to a civil immigration matters or (2) deterring local law enforcement from inquiring or collecting and disseminating information about an individual's immigration status when contact is made. (36)

      Unfortunately, the positive sentiment regarding sanctuary cities has declined since 1979. This is due to the rise of debate endorsing stricter immigration policies due to increased terrorist threats, increasing undocumented populations in the United States, and, ultimately, the fatal shooting of Kathryn Steinle in 2015. (37) Kathryn's shooter, Juan Francisco Lopez-Sanchez, an undocumented immigrant, had been convicted of more than five felonies and deported at least five times. (38) He completed a forty-six-month sentence in federal prison and was released on March 26, 2015 to the custody of the San Francisco Sheriff's Department (SFSD) for additional felony charges, which were ultimately dropped. (39) The day his felony charges were dropped, ICE issued a detainer request to SFSD requesting notification prior to Lopez-Sanchez's release in order for ICE to take him into custody. (40) However, on April 15, 2015, SFSD did not cooperate with ICE and released...

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