Right now in the United States, there is a huge debate over different jurisdictions, big cities and small counties being labeled “sanctuary cities.” We did a little digging and it turns out that there is no legal definition of the term. So what is the debate about? The president of the United States stated in an executive order in January that, “sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our republic.”
Embedded in the order was a clear threat to withhold federal funding from the jurisdictions and gave power to the Secretary of Homeland Security to determine which cities and counties have so-called sanctuary status.
Recently, a bill was introduced and later denied that would have made our state the first sanctuary state in the nation. Named the Ralph Carr Freedom Defense Act, the bill would have made it illegal for local government to send personal information, such as immigrants’ status, to the federal government unless it is for determining a legal and constitutional purpose. It would have also made it illegal to use state or local funds to detain or track people based on their race, ethnicity, national origin, immigration status or religious affiliation. On the flip side, another bill is also being considered that would require the state to comply with federal immigration laws. The bill would also allow victims of crimes committed by undocumented immigrants to sue sanctuary cities for damages. It’s likely the bill will not pass in the Democrat-controlled House.
With this ongoing legal debate, we wanted to examine the ways in which sanctuary status could be determined currently, and what funding could be withheld if Denver receives that label.
How is Sanctuary Status Determined on the National Level?
While no legal definition of sanctuary exists, it is required by law to share immigration information of an individual booked into a local detention center to the Federal Bureau of Investigation (FBI). If the FBI determines a person is in the country illegally they will relay the information to other federal level agencies including Immigration and Customs Enforcement (ICE). For many years ICE would issue a request to the local jurisdiction to hold the person while they obtain a federal warrant for their arrest. After lawsuits in district courts across the nation, many beginning under the Obama Administration, ICE began issuing notification requests asking to be alerted when the person is released. Many of these lawsuits took place in district and circuit courts creating a precedent but so far none have made it to the supreme court and there are still no laws in place around ICE requests. ICE committed to utilizing requests for notification more frequently than requests for holding but under the new administration, it is unclear if this will be their continued stance. Since the extent of the law is simply to send information to the FBI it would make sense for the story to end there, but it does not, that is barely where it begins. Sanctuary status is really determined by the request from ICE to hold someone or to be alerted of their release and what the individual jurisdiction decides to do next. Based on that decision there are three questions the federal government might ask to determine if a city is a “sanctuary city.”
Part 1 – How is Local Law Enforcement Funded?
The first item under scrutiny is if a local jurisdiction sets aside funding from their own budget to cover the costs of anything that could be under the job umbrella of the federal government. As of now, when an ICE request is passed down, the cost of detaining someone until they are collected by ICE is not reimbursed. This is the most direct example of the funding question.
Another example of the funding issue is how it can increase in the future, and if/will a city matches the federal government’s demand. As administrations change, so do priorities. In this executive order by President Trump, specifically, there is an increase in the persons that ICE would request warrants for. There are also priorities that are not legal orders but become expectations — that individual cities will match the excitement of an administration and reorganize the priorities of local agencies, like law enforcement, to meet the goals set by the administration. This can be a huge expense and not every city or county has the same needs or interests as the federal government. The framers of the constitution were prepared for this to happen at some point so they included the 10th Amendment to the constitution. The 10th Amendment protects the states and smaller localities if they refuse to comply with requests from the federal government that are not laws. In this example, it means local law enforcement is protected by the constitution if they choose not to detain people based on their immigration status if there is no warrant to do so.
In the wake of the election, Denver and Aurora’s police departments were quick to release statements clarifying that they would not participate in the job functions of federal law enforcement including immigration policing and enforcement. The individual statements were reported on as early as this Nov. 15, 2016, 9 News report. The Denver Police Department, however, removed their press release from their website recently and now have no documented stance. This is in part just a show because the state does not legally have to do anything. The decision of the individual departments to make statements has more to do with a) voicing an opposition to the direction that an administration is going and b) clarifying a political stance to continue peaceful interaction with the general population. In areas with high populations of illegal immigrants, there is a concern that heightened tension with law enforcement will create a space where those with illegal status are frightened to report crimes.
Part II – How Does the City View The Fourth Amendment?
The second item is more interesting to the federal government and much easier to track. Does the jurisdiction honor the ICE request without a warrant, and more importantly why do they make that decision? If an individual jurisdiction does not honor the ICE request to hold a person without a warrant because of cost, that is a practical decision. If they choose not to hold someone without a warrant because it is a violation of that person’s Fourth Amendment rights, that is an ideological difference. The Fourth Amendment regards protections around illegal search and seizure. It is the reason that there is a lengthy and transparent process between being accused of a crime, charged, arrested, judged and finally imprisoned. For misdemeanors and non-violent crimes people are often released until their trial date as is their Fourth Amendment right.
This is the more divisive factor nationwide, the one being challenged in court and winning in states across the US. Colorado faced a lawsuit similar to this but the Sheriff’s Department in Arapahoe County settled out of court for $30,000 and committed to not hold anyone on an ICE request without a warrant. The national focus on immigration after the executive order raised the deportation priorities and forced individual cities and counties to determine if they believe that the constitution protects people living under their jurisdiction or citizens of the United States living under their jurisdictions. These two reasons for releasing people before the warrant comes in are also causing tension because one is easy to fix with legislation and the other is much more complex. It is ingrained in the cultural values of the jurisdiction itself. According to a statement released by the Denver Sheriff’s Department, “Denver has never, and will never, condone dangerous or violent individuals being on our streets, immigrants or not. However, detaining anyone without a criminal warrant is a violation of the Fourth Amendment. Once individuals in Denver’s jails post a bond, the Sheriff Department has no legal ability to hold them without a warrant.”
Part III – Does the City Identify Itself as a Sanctuary City?
The first two items lend directly to the third — whether or not the cultural climate of the jurisdiction identifies itself as a sanctuary city. The longstanding claim of the current mayor, Michael Hancock and the former mayor, now governor, John Hickenlooper, has been that Denver is not a sanctuary city and fits no mold or test that would determine that status. However, Mayor Michael Hancock recently challenged this in a public statement after receiving backlash from constituents in Denver following the election and release of the executive order. Many Denver citizens were vocal about their support of being a sanctuary city.
In his address, Mayor Hancock does not bring up either of the constitutional interpretations in question or the legal implications of being labeled as a sanctuary city. He merely philosophically implies that we have the status in a series of rhetorical statements. Now, however, it is now the Capitol taking up the cry with The Ralph Carr Freedom Defense Act. Even though it was not passed, its a bold step. While there is no legal precedent for determining sanctuary status, a law on the state books like this one is a pretty clear indication of where the state stands.
Without any laws or legal precedents in this arena, the influence of citizens and constituents will be the ultimate determining factor in the decisions of elected officials and those that benefit from a working relationship with communities such as law enforcement. This can be a deficit as it means that mobilization of effort and resources can switch directions at the will of the public.
What Funds Can the Federal Government Withhold from the States?
Historically, courts have ruled that the only funding that directly relates to the legal violation or the federal initiative can be withheld. But the January executive order blurred the lines by asking the Departments of Justice and Homeland Security to withhold “federal funds, except as mandated by law” from sanctuary cities. As a result, some grants and other funds that support law enforcement are in question, which could cause major disruptions to the ability of local law enforcement to perform their jobs and in some cases, impact counter-terrorism efforts.
According to the 2015 Denver Budget Audit, the county received $6.1 million dollars of federal grant money from the Department of Homeland Security (DHS). The majority of federal money from the DHS is designated for disaster preparedness and the upkeep of systems related “emergency management.” It is mostly used to create “Fusion Centers” or inter-agency offices where the different levels and factions of government could go and share information following a disaster or security threat. The money from DHS that relates to immigration is anything funneled to their ICE office in Centennial. Denver County did however receive $5.3 million dollars from the Department of Justice, of which roughly $1 million could arguably be related to immigration policing and therefore withheld. Although $1 million seems like a lot it is actually a very small portion of the federal aid the city receives and a minuscule portion of the city budget overall.
Greater risks could arise if the Secretary of DHS decides, as some in the federal government have suggested, to withhold funds to states to attempt to force the state level to realign the cities with federal ideals. Most cities being labeled as sanctuaries are capitals or major cities which could cause economic tensions between the main hubs of states and the rural communities and it is unclear who would come out on top.
So, Is Denver a Sanctuary City?
This is a hard question to answer, and after weighing all the variables the answer is, maybe. Philosophically? Yes. Legally? No. In practice? Sometimes. Will all this change in the near future? Possibly. These items are simply lenses that can be used to see if a city is aligned with the current administration’s ideals and priorities but without laws on the books at the federal level there is not much that can be done. As ICE raids ramp up in cities that have identified themselves as places of sanctuary the only clear thing is that as of now — they are going it alone.
Do you think Denver fits the bill of sanctuary status? Should the constitution apply to all residents of Denver or just citizens? Let us know your thoughts in the comment section and tell us what other tricky political questions you would like us to answer about the Mile High City.
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Photographs provided by Traci Hanner unless otherwise noted.
[Updated April 12 1:05 pm: Article was updated to clarify how ICE works with local law enforcement, in particular, the distinction between detention request to notification requests.]