City of Davis Reacts to Trump Policies

From the City of Davis Attorney Harriet Steiner

Dear Mayor and Council:

We wanted to address the City as a sanctuary city, and the way in which the City Police Department in particular, has implemented the City’s Sanctuary City resolution. Chief Pytel has been very active in providing policy guidance and training to the Police Department (policies available upon request)… In my opinion, this policy is compliant with both federal and state law. In addition, the Executive Order issued yesterday requires compliance with 8 U.S.C. 1373. The PD policy is in compliance with this federal law. The Executive Order does not change the City’s existing policies and procedures. It does not affect the City’s commitments as a sanctuary city.

The City has been a sanctuary city for many years. The City clearly supports this commitment to refugees and undocumented individuals residing in the country.

The Davis Police Department mission is public safety and local law enforcement. The Department and the City have committed to equal enforcement of the law and equal service to the public. Immigration status is not taken into account in fulfilling this mission. As stated by Chief Pytel and in the policies of the PD “It is the policy of the Davis Police Department that all members make personal and professional commitments to equal enforcement of the law and equal service to the public. Confidence in this commitment will increase the effectiveness of this department in protecting and serving the entire community and recognizing the dignity of all individuals, regardless of their immigration status.”

As examples: the PD does not investigate immigration status as part of its investigation of criminal activity. The PD does not (1) detain or hold individuals for any length of time to investigate immigration stays (2) detain based on an ICE civil detainer or hold; (3) assist federal agencies in enforcing immigration laws absent being shown a properly issued criminal warrant.

The PD actively requests that citizens report hate crimes and other crimes. The PD is in full compliance with the California Truth Act (outlined in the enclosures) which requires, among other things, notice to a person in custody of his or her rights and a written consent prior to an interview with ICE. The PD is also in full compliance with the CA Trust Act which, among other things, prevents local law enforcement from detaining undocumented individuals beyond the time they would otherwise be released from criminal custody.

As stated by Chief Pytel: To encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting, or being addressed, by members of law enforcement will not automatically lead to immigration inquiry and/or deportation. Members will not seek out and prosecute individuals because of their immigration status, nor will members take immigration status into account when determining whether to detain a person or when enforcing criminal laws. While it may be necessary to determine the identity of an individual, members shall treat all individuals equally and without regard to race, color or national origin in any way that would violate the United States or California Constitutions.

From Police Chief Darren Pytel

Yesterday, President Trump signed an Executive Order, “ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES.”

The pertinent part of the Order regarding our Sanctuary City status is Section 9, which specifies:  It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any

jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

The text of 8 U.S. Code § 1373 – Communication between government agencies and the Immigration and Naturalization Service:

(a) In general. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to respond to inquiries. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Congress has plenary authority to regulate naturalization and extensive authority over other aspects of immigration. In that respect, the passage of 8 U.S. Code § 1373 is a valid congressional act. Attached is the Davis Police Department Policy on Immigration Procedures and the City Council Resolution reaffirming our status as a sanctuary city.  Importantly, nothing contained in the current Resolution or police department policy conflicts with 8 U.S. Code § 1373. In writing the department policy, § 1373 was taken into account.

Section D,  Information Sharing, specifies.

1. Information sharing with ICE and federal agencies shall be in accordance with local, state and federal laws.
2. When conducting criminal investigations that are unrelated to immigration violations, in determining whether notification to ICE is appropriate, an officer should, in consultation with the Police Chief or a Deputy Police Chief, consider the totality of circumstances of each case, including, but not limited to:
   1. Seriousness of the offense
   2. Community safety
   3. Potential burden on ICE or other federal agency
   4. Impact on the immigrant community
3. No individual who is otherwise ready to be released should continue to be detained solely for the purpose of making notification to immigration authorities.

As required by California law, the policy does require arrest notification to ICE in certain drug cases.  Additionally, when a person is arrested and fingerprinted, ICE automatically receives biometric notification of the arrest. This is required and California complies with this requirement.

Lexipol, who writes department policies for over 400 law enforcement agencies in California, has similar language in their policy regarding information sharing. This was done many years ago to ensure agencies would be in compliance with 8 U.S. Code § 1373.

Last night, California Police Chiefs put out an information bulletin regarding the executive order:

From Chief Lauren Michaels -News of today’s Presidential Executive Orders on Immigration, officially entitled “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States” spread rapidly and, unsurprisingly, was met with a fiery response by California legislative leadership.

In response to today’s Federal action, California State Legislative leadership held a press conference announcing that SB 54 and SB 6 will be fast-tracked next week through policy committees. SB 54, authored by Senate pro Tempore Kevin de Leon, would set restrictions on when and how local law enforcement participates, aids, provides assistance, or shares data with ICE. Related to some extent, SB 6 by Senator Ben Hueso would provide legal services for individuals facing deportation.

Following the press conference, First Vice President Ed Medrano met with Senator de Leon to discuss our concerns with SB 54. The meeting was productive, which ended with a commitment from the Senator to work with Cal Chiefs towards addressing our primary concern that SB 54 may preclude local law enforcement from participating in federal joint task forces targeted at trans-national criminal organizations. In the following weeks, Cal Chiefs will continue to negotiate amendments with the input from other public safety advocates and our federal partners.

Importantly, SB 54, as amended on January 24, 2017,  would repeal mandatory notification to ICE following specified drug offenses (section II, B. of Davis Police Department policy). Further, the bill adds section 7284.10 to the Government Code specifying; nothing in this chapter prohibits or restricts a government entity or official from sending to, or receiving from federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual pursuant to Sections 1373 and 1644 of Title 8 of the United States Code.

SB 54 is being written to comply 8 U.S. Code § 1373, which should protect agencies from loss of funding under the Executive Order, should that action actually be deemed lawful (there are several legal arguments to be made that the loss of federal funding would be unconstitutional).

Lastly, to re-iterate, It is the policy of the Davis Police Department that all members make personal and professional commitments to equal enforcement of the law and equal service to the public. Confidence in this commitment will increase the effectiveness of this department in protecting and serving the entire community and recognizing the dignity of all individuals, regardless of their immigration status.

To encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting, or being addressed, by members of law enforcement will not automatically lead to immigration inquiry and/or deportation. Members will not seek out and prosecute individuals because of their immigration status, nor will members take immigration status into account when determining whether to detain a person or when enforcing criminal laws. While it may be necessary to determine the identity of an individual, members shall treat all individuals equally and without regard to race, color or national origin in any way that would violate the United States or California Constitutions.

The President’s Executive Order does not in any way change our existing policy and procedure nor does it affect our commitment under our sanctuary city status.