By Michael Kagan

At the end of March, Sen. Yvanna Cancela’s proposal to regulate the involvement of Nevada police in federal immigration enforcement died in the Nevada Senate, unable to overcome opposition from the largest police departments in the state. The reason for this opposition was that the bill, SB223, would have been a form of sanctuary legislation.

But was it, actually?

Sen. Cancela was willing to amend her proposal so that it would not have restricted police from turning people over to Immigration and Customs Enforcement (ICE). It would not have ended the cooperation agreement that Las Vegas Metro has with ICE, nor the financial benefits that the City of Henderson and Washoe County glean from renting detention space to ICE. Sen. Cancela proposed to simply enshrine in law a rule that police in Clark and Washoe counties already say they follow. Police in the field would not be allowed to arrest a person simply for immigration violations, in the absence of some other criminal offense.

But the details didn’t actually matter, and lobbyists for the state’s largest police departments were remarkably candid about this.

Chuck Callaway, the lobbyist for Las Vegas Metro said: “For me in my position with this bill, basically it really doesn’t matter what the [bill] language is.” As a lobbyist for the Washoe County Sheriff’s office said, the “bill has already got the label of being a ‘sanctuary city’ bill.” And that was the end of that.

Except, of course, that it wasn’t the end of anything.

The problem that never got a hearing

Long before Donald Trump ran for president, the International Association of Chiefs of Police expressed alarm that immigrant populations, especially immigrant women, are vulnerable to crime because they are often afraid to call the police for fear of deportation. As the IACP noted, the problem is not limited to undocumented immigrants, because families are often mixed. A U.S. citizen might live with an undocumented relative, and so might fear having police take an interest in her family.

This is an urgent concern for law enforcement in Nevada. Around one in five Nevadans was born abroad. In particular, the Las Vegas Valley is home to 170,000 undocumented immigrants – about 8 percent of the population. No community can ensure public safety for long if a large part of its population lives in fear of law enforcement. The Trump Administration has made this fear even more intense.

In early May, the National Domestic Violence Hotline reported that it had seen a 30 percent increase in calls from people who expressed anxiety about immigration issues, including many who said that their abusers threatened them with deportation if they called the police. The Hotline said it is now having a harder time persuading women to report abuse to police because it cannot assure them that they will not end up being deported. This year, in Denver, domestic violence prosecutions have been dropped because immigrant victims were too scared to go to court. In Los Angeles and Houston, police are raising alarm that Latinos are becoming less likely to report sexual assault and other violent crime.

This growing fear is a good reason for local police in a diverse metropolitan area to distance themselves from federal immigration enforcement. And yet, the potential to remove dangerous people from a community by having them deported is appealing, and probably has wide public support. Moreover, local police depend on access to federal law enforcement resources to help them identify and investigate the people they arrest.

The policy challenge for local and state police is to try to balance these competing pressures. How can our police cooperate with federal partners at a time when the federal government is striking fear into a large part of our community? Regrettably, it seems as if a single word – sanctuary – has blocked Nevada’s ability to have a sober discussion about this problem.

Retreating from a word

No one knows exactly what a sanctuary city is. It has no standard legal definition. Progressives have pushed to adopt the sanctuary banner, often without being entirely clear themselves what concrete policies they wanted to actually adopt. I have repeatedly met supporters of sanctuary measures who believe that localities or universities can block federal immigration enforcement. (They can’t.) In turn, some conservatives believe that cities are defying federal law. (They’re not.)

Fresh from defeating SB223, Senate Republican leader Michael Roberson is now backing an effort to put an anti-sanctuary cities measure on the ballot next year. It is not entirely clear  what kind of local ordinances Sen. Roberson would ban, but that seems besides the point. So far, fear of a word has been driving the debate in Nevada.

Until roughly mid-April, Pres. Trump and Attorney General Jeff Sessions made a great deal of noise issuing threats to punish sanctuary cities to taking federal money away. Nevada leaders accepted these threats at face value. Sen. Roberson claimed SB223 would “cost us millions of dollars.” Las Vegas Mayor Carolyn Goodman wrote in the Las Vegas Sun that the City of Las Vegas would cooperate with ICE “as required by federal law.” Even the Democratic leader of the Nevada Senate Aaron Ford said he feared “provoking” Washington.

The fact that Nevada’s leaders – including its Sheriffs – buckled so quickly does not inspire confidence. There never was much if any legal authority allowing the Trump Administration to take any action, and this was always obvious to people to looked at the law carefully.

About two weeks after SB223 died in Carson City, a federal judge in San Francisco held a hearing regarding the Trump threats. Retreating from the start, the Trump Administration lawyers tried to deny that the President had even made a real threat against cities or states. Then they said that, if there was a threat, it only applied to “a small pot” of federal funds. On April 24, the Trump Administration met with mayors from around the country to walk back the threats. Just in case any ambiguity remained, the San Francisco judge issued a nationwide injunction against the President’s executive order on sanctuary cities.

 

The trouble with detainers

If we could get past the fear of the S-word, there are a number of complex public policy problems to grapple with here. Usually, the most contentious question concerns ICE detainers. These are requests from ICE that a suspect not be released until immigration officers arrive to take him or her into federal custody. Normally, many people who are arrested on low level crimes may spend only a day or two in the local jail. The question is, what should happen if ICE wants to take the person into custody, but doesn’t arrive before he or she would otherwise be released?

Until 2014, Las Vegas Metro routinely held defendants on the basis of an ICE “detainer.” This meant that people who might normally have been released quickly spent weeks in jail, at county expense. Then-sheriff Doug Gillespie ended this practice because of the threat of lawsuits. Federal courts had found that ICE detainers do not demonstrate probable cause, and thus Metro could have been liable for wrongful imprisonment in violation of the Constitution.

But in January of this year, Metro reversed course. Once again, Metro holds people in its jails on the basis of ICE detainers. The ICE detainer form still does not give individualized reasons to justify detaining someone, and unlike an arrest warrant, ICE detainers are not ratified by an independent judge.

By going along with this, Metro is inviting civil rights litigation, at Clark County taxpayer expense. The fact that this policy change was made in January might be coincidence, but it could also be evidence that Metro has been anxious trying to curry favor with the Trump Administration.

LV Metro walks a tightrope

Throughout the early months of the Trump Administration, Metro officers have appeared at forums throughout the valley to tell anyone who will listen the same basic message: Metro police are not interested in enforcing immigration law in the field. Yet, Las Vegas Metro is one of relatively few police departments in the western United States to have signed a “287g” agreement with ICE. Under the agreement, four Metro officers inside the Clark Country Detention Center wear ICE uniforms, and are deputized by ICE to identify detainees in the jail who should be referred for possible deportation.

As a result of the 287g agreement, there is no one simple message that anyone can deliver about how Las Vegas police handle immigration. Metro officers do not arrest people on immigration grounds alone. But Metro does enforce immigration law once someone has been arrested for some other reason, and does actively turn people over to ICE.  Nevertheless, Metro tries to limit its role in immigration enforcement, in recognition of the fact that not everyone booked into the jail is created equal. Some are serious criminals. But many people are arrested on bench warrants issued for unpaid traffic tickets and other low level offenses.

Sheriff Joe Lombardo has said that for Metro, the purpose of the agreement with ICE is to get rid of “the worst of the worst.” When he renewed the 287g agreement last year, federal policy was to target “felons, not families.” That suited Metro’s purposes very well. A speeding ticket should not lead someone to be turned over to ICE, but armed robbery is different.

The trouble now is that the Trump Administration’s policies do not align as well with Metro’s focus on more serious criminals. Nationally, the rate at which ICE arrests people who have no criminal record at all has doubled since last year. This puts Metro in a difficult spot. If the police were to start helping ICE deport longstanding members of the community because of minor infractions, community trust in the police could plummet quickly.

A Modest Suggestion

So far, Metro may have managed to maintain a balance – in no small part because Metro officers have been energetically open about explaining its policies to anyone who will listen. But it is a tenuous balance at best. And there are concrete reasons to remain very skeptical about how Metro will behave in the future.

The adoption of a constitutionally dubious detainer policy is one cause for worry. Another is the fact the 287g agreement that Sheriff Lombardo signed says that “LVMPD shall follow ICE’s civil immigration enforcement priorities.” That agreement, combined with Metro’s open fear of the sanctuary label, would seem to give ICE leverage over the Sheriff. That should make immigrants nervous that Metro will not be able to maintain its independence from the Trump Administration.

So, here is a modest suggestion. Since everything depends on trust, Metro should expand transparency. Once a month, publish statistics about what Metro actually did in its cooperation with ICE. How many people were referred for deportation proceedings, and what was their criminal record? Presumably, the data will confirm that Metro is indeed targeting only the “worst of the worst.” More than that, it will provide a continuous mechanism for reassuring the community that our local police are maintaining their independence from ICE.

Transparency may be the best way to move forward. Running scared from the S-word probably is not.

Michael Kagan is a professor at the UNLV William S. Boyd School of Law. He tweets @MichaelGKagan.

Feature photo courtesy Las Vegas News Bureau.