Law Enforcement Priorities and Public Sector Leadership

Undocumented Immigrants in Gainesville

The city of Gainesville has a population of about 54,000 and of these, approximately 3,200 are illegal aliens. The law enforcement community in this city is charged with protecting these undocumented aliens on the one hand and enforcing illegal immigrant laws on the other. To the extent that undocumented residents are afraid that the police will enforce the latter may be the extent to which they are discouraged from seeking help from the law enforcement community when they need it, exacerbating existing crime levels. Conversely, the extent to which law enforcement authorities fail to enforce illegal immigration laws may be the extent to which they are viewed as being malfeasant in the prosecution of their official duties. To determine the optimal course of action for law enforcement authorities faced with these conflicting priorities, this paper reviews the relevant literature including a discussion of so-called "sanctuary cities" and "sanctuary counties." Finally, a summary of the research and important findings concerning these conflicting responsibilities and the optimal course of action law enforcements authorities should take to ensure they are fulfilling their official responsibilities to the best of the ability and in the best interests of the community.

Review and Discussion

As the research below will clearly indicate, local and state law enforcement agencies are being placed in a difficult position when it comes to the enforcement of federal immigration laws. As one legal analyst emphasizes, "The federal government's increased reliance upon local police to assist in federal enforcement efforts, coupled with Congress's failure to pass meaningful reform, has transformed the local police chief into the public face of the immigration debate in his community" (Tidwell, 2014, p. 105). In this capacity, local and state law enforcement authorities are being forced to identify an appropriate approach to protecting the safety and welfare of undocumented residents while being called upon to arrest these same people if they are otherwise found in criminal or even civil violations of federal immigration laws. The federal initiatve, "Secure Communities," specifically requests cooperation from local and state police departments in this effort, however, including sharing fingerprints of arrested undocumented aliens with federal authorities, a practice that Tidwell (2014) maintains "raises the question of whether the two competing concerns are mutually exclusive" (p. 106).

The federal immigrations laws that are involved in illegal immigration are clear in their purpose and intent. For instance, 8 U.S.C. Section 1227(a)(1)(A) (2008) states that, "Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.") and 8 U.S.C. Section 1227(a)(1)(B) (2008) likewise provides that, "Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable." Given that these are the laws of the land and the Fourteenth Amendment extends their coverage to the state and local levels, it would seem reasonable to assume that law enforcement authorities at every level would be obligated to enforce them. Nevertheless, critics of these laws argue that the Tenth Amendment guarantees local and state law enforcement authorities with a corresponding right to refuse to provide this type of assistance if it is viewed contrary to the public's best interests (Tidwell, 2015).

These issues have assumed far greater importance and relevance following the terrorist attacks of September 11, 2001 and the jihadist-inspired shootings San Bernardino, California in December 2015. As Koback (2004) emphasizes, "Enforcing our nation's immigration laws is one of the most daunting challenges faced by the federal government" (para. 1). Proponents of local and state law enforcement cooperation argue that the enormous challenges are involved mean that the federal government needs all of the help it can get in identifying and prosecuting illegal aliens. In this regard, Koback (2004) points out, "With an estimated 8-10 million illegal aliens already present in the United States and fewer than 2,000 interior enforcement agents at its disposal, the Bureau of Immigration and Customs Enforcement (BICE) has a Herculean task on its hands -- one that it simply cannot accomplish alone" (para. 2). Moreover, such cooperative approaches to enforcing federal immigration laws have a lengthy precedent in the United States. In this regard, Tidwell (2015) emphasizes that, "While the Constitution vests the power to enact and enforce immigration law in the federal government, state and local authorities have long played a role in our country's interior immigration enforcement efforts" (p. 106).

The overarching goal of the federal government, of course, is to ensure that each and every undocumented alien is rounded up and deported unless they are otherwise eligible for some type of amnesty program, and the nation's local law enforcement communities represent the additional resources that the federal government believes are needed to do the job more effectively. As Koback concludes, "The assistance of state and local law enforcement agencies can mean the difference between success and failure in enforcing immigration laws. The more than 650,000 police officers nationwide represent a massive force multiplier" (2004, para. 3). Moreover, Section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996, "Acceptance of State Services to Carry Out Immigration Enforcement," stipulates in part that:

[T]he [U.S.] Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States . . . may carry out such function at the expense of the State or political sub-division and to the extent consistent with State and local law.

Two important points emerged from the foregoing legislation. The first important point is that there is not a mandatory requirement set forth in this Act that obligates local or state law enforcement officials to enforce federal immigration laws; rather, the operative language is "may enter," or, as explained further below, "can" rather than "shall" or "must." The second important point is that this Act places the economic burden of enforcing federal immigration laws squarely on local and state police departments, an expense they may not be able to afford when other law enforcement priorities exist.

Likewise, the other guidelines from the federal government concerning the role of local and state law enforcement officials in enforcing federal immigration laws are also carefully couched in voluntary terms. For example, the Colorado Alliance for Immigration Reform reports that a 2005 Supreme Court decision in Muehler v Mena (544 U.S. 93) held that law enforcement authorities at all levels are authorized to inquire about the immigration status, including visa status, during any lawful contact with residents; however, the Court did not hold that they are specifically required to do so (Local law enforcement may cooperate with immigration enforcement, 2016).

More informally, but still reflective of the guidelines concerning local and state enforcement of federal immigration laws is a U.S. Department of Justice memorandum dated September 8, 2005 which states: State and local cops can make arrests after traffic stops if they find civil immigration violations, such as someone overstaying a visa. No specific federal authority is needed for local officers to make such arrests" (cited in Local law enforcement may cooperate with immigration enforcement, 2016, para. 3). The memorandum also indicated, however, that local and state law enforcement authorities are only authorized to enforce immigration laws if there were criminal immigration violations involved such as entering the country illegally (Local law enforcement may cooperate with immigration enforcement, 2016).

In sum, there has been a general consensus nationwide that local and state law enforcement authorities are authorized to make arrests when they encounter people who are in violation of criminal immigration violations pursuant to the enforcement powers assigned by the "Acceptance of State Services to Carry Out Immigration Enforcement" noted above which include arresting and detaining suspects preparatory to their transfer to federal control. There remains some confusion, however, concerning the authority possessed by local and state law enforcement authorities concerning civil violations of federal immigration laws that may also be cause for their deportation (Local law enforcement may cooperate, 2016). According to the Colorado Alliance for Immigration Reform, "This confusion was, to some extent, fostered by an erroneous 1996 opinion of the Office of Legal Counsel of the Department of Justice, the relevant part of which has since been withdrawn" (Local law enforcement may cooperate, 2016, para. 5).

Notwithstanding this initial confusion, though, there is now widespread agreement that local and state police officers also possess the inherent requisite authority to arrest undocumented aliens for either criminal or civil offenses of federal immigration laws and this authority has never been challenged by courts of competent jurisdiction (Local law enforcement may cooperate, 2016). Notwithstanding these guidelines, however, law enforcement authorities in some local jurisdictions have relied on the Tenth Amendment to refuse to cooperate (Tidwell, 2015).

These guidelines and caveats suggest that law enforcement authorities in jurisdictions such as Arizona, New Mexico and Texas where there are large numbers of undocumented aliens may be more willing to help the federal government enforce immigration laws. Conversely, states more geographically removed from border regions will be less inclined to enforce immigration laws due to the costs involved as well as the potential for illegal aliens to be less willing to contact police officers when they need their help for fear of being arrested and deported, despite their only crime being violation of federal immigration laws. Nevertheless, proponents of enlisting the assistance of local and state law enforcement authorities in enforcing federal immigration laws argue that the threat to public safety represented by global terrorist organizations demands a cooperative nationwide response that includes all law enforcement resources (States can and must help enforce federal immigration law, 2014).

As noted above, however, some communities have elected to essential disregard the calls for assistance from the federal government relying on the sovereignty provisions of the Tenth Amendment and have assigned a far lesser priority to the enforcement of federal immigration laws at the expense of the safety of their residents and have invited everyone, regardless of their citizenship status, to become otherwise law-abiding residents. In fact, in response to the increasing numbers of illegal aliens flooding many American cities, some communities have elected to approach law enforcement from a completely different perspective by assigning higher priorities to the provision of police services to all residents irrespective of their immigration status to the exclusion of prosecuting them for their illegal residency status. These types of cities have become known as "sanctuary cities" where illegal aliens are virtually exempt from local law enforcement prosecution for their immigration status unless they commit a serious crime. For instance, Villazor (2015) reports that, "Sanctuary city describes some municipalities that have adopted sanctuary, non-cooperation, or confidentiality policies for undocumented residents, which may be viewed as inclusionary types of laws" (p. 573). According to Rose (2012), though, the sanctuary city movement began during the 1980s, long before the terrorist attacks of September 11, 2001 would create new concerns over illegal aliens. To date, a growing number of American cities, including New York City, Los Angeles, Washington, DC, Phoenix, San Francisco, Austin, Dallas, Detroit and Miami, among others, have elected to become sanctuary cities (Rose, 2012).

Although specific provisions vary by jurisdiction, some of the defining characteristics of most sanctuary cities include a refusal to use municipal funds to enforce federal immigration laws. In this regard, Villazor cites the example of San Francisco where "sanctuary law prohibits the use of city funds and resources to aid in federal enforcement of immigration law" (2015, p. 573). Similarly, Rose (2012) reports that, "The most common protection [afforded by sanctuary cities] involved prohibiting municipal workers from inquiring into anyone's immigration status" (p. 41). In addition, the sanctuary city of San Francisco not only prohibits municipal employees from inquiring concerning the immigration status, this city also prohibits reporting any illegal aliens they encounter to federal immigration authorities unless they have been arrested for the commission of a felony (Villazor, 2015).

Even in some states where illegal immigration has reached epidemic levels such as Texas, some cities have elected to become sanctuary cities to the extent that they will not specifically investigate illegal resident status. For instance, Spadanuta (2007) reports that, "The Houston [Texas] Police Department's Immigration policy states that it will not detain a person solely based on the belief that the individual is an illegal immigrant and officers will not ask about legal status unless a person is arrested and taken to jail" (p. 27). Indeed, other some other sanctuary cities such as Cambridge, Massachusetts even refuse to describe undocumented aliens in terms of their being "illegal" (Rose, 2012). For instance, pursuant to the City Resolution that implemented the city's sanctuary status, "Cambridge, Massachusetts rejects the use of the word 'illegal' to describe human beings" (cited in Rose, 2012, p. 42).

Not surprisingly, there has been growing interest concerning whether the sanctuary city approach is a viable alternative to the rigorous enforcement of civil and criminal violations of federal immigration laws, including most especially the effects on crime rates. A study by the Center for Immigration Studies and FBI Uniform Crime that analyzed murder rates in the sanctuary city of San Francisco with comparably sized non-sanctuary cities and found that non-sanctuary cities experienced higher levels of crime. In this regard, Shaw (2015) reports that, "San Francisco had 5.75 murders per 100,000 residents in 2013s. The rates were higher among nonsanctuary cities. Indianapolis had 15.17 murders per 100,000 followed by Dallas, 11.39; Columbus, 11.06; Jacksonville, 10.99; and Fort Worth, 6.08" (para. 2).