by Alisa Wellek and Ghita Schwarz
Exploiting tragedies has always been smart politics for demagogues seeking to promote their political agenda. From Pearl Harbor to 9/11, cynical politicians have fanned the flames of racism, fear, and prejudice for cheap political gain, sometimes triggering overreactions (internment, blacklisting, disastrous wars) with enormous human, constitutional, and financial costs. It dishonors the dead to use them as a mere political prop.
That is exactly what certain politicians are doing with the memory of Kathryn Steinle, a young woman killed in San Francisco earlier this month by a man who happens to be undocumented.
Donald Trump, Congressional Republicans, and some Democrats have seized on this tragic but essentially random, senseless act of violence to demonize immigrant communities, and to push for punitive measures that would hurt entire families and undermine our constitutional values. On Thursday afternoon, for example, the House passed a bill threatening state and local governments that limit cooperation with immigration enforcement with funding cuts. With meaningful immigration reform taking center stage in the upcoming election, Steinle's tragic death provided these opportunists with a platform to take this issue back to their home turf.
Lawmakers from both parties are now holding up Steinle's death as Exhibit A for why local police should be required to help the feds chase people for deportation, even when the immigration authorities do not have warrants authorizing that individual's detention. The suspect, Juan Francisco Lopez-Sanchez, an undocumented immigrant with a history of drug convictions and multiple deportations, had been released from San Francisco Police Department (SFPD) custody months before, after the police did not submit to a request from the federal Immigration and Customs Enforcement (ICE) to hold him for pickup without a warrant.
But the SFPD was simply following city laws limiting the conditions under which people could be held without a warrant. Holding Mr. Lopez-Sanchez would have violated not only local law, but also constitutional guarantees against warrantless detention. Given the fact that Mr. Lopez-Sanchez had re-entered the country each time he was deported, it's unclear how deporting him another time would have prevented this tragic shooting. A more targeted solution would be to forbid federal employees from leaving guns in their vehicles - the private gun that killed Ms. Steinle was stolen from a federal agent's car in June. But that hasn't stopped lawmakers from turning to an irrelevant solution that would increase the suffering of immigrant communities already devastated by the Obama Administration's deportation policies, the harshest in U.S. history.
Local campaigns to create sanctuary cities - cities where local officials will not unnecessarily pry into someone's immigration status, report her to immigration authorities, or honor ICE's request to detain without a warrant - have been successful because organized communities have convinced their legislators of the obvious: more deportations do not reduce crime. Turning local police into federal agents only spreads distrust in immigrant communities, making crime investigation more difficult and everybody less safe.
Communities fought for the passage of most of these sanctuary laws in response to the federal Secure Communities program, the federal government's primary tool for enlisting local law enforcement in its mass deportation campaign. S-Comm, started by President Bush in 2008 and greatly expanded by the Obama administration, instituted data-sharing between police and DHS, with the fingerprints of every person arrested by a local or state law enforcement agency--citizen and non-citizen alike--automatically sent for cross-checking against federal immigration databases. This happened during the booking process, in many cases before charges were even filed. In cases where ICE officials deemed the person deportable, they would issue "detainers," requesting that the police detain the person for pickup.
These S-Comm detainers led to people being held in local custody, without a warrant or even probable cause, longer than legally permitted, exposing cities to civil rights lawsuits. Several federal courts have ruled that localities violated the Fourth Amendment's protections against unreasonable searches and seizures by detaining individuals without a warrant for immigration authorities.
Detainers also made for bad public policy. State and local law enforcement groups pointed out that intertwining community policing with federal immigration enforcement undermines public safety, by making immigrants reluctant to report crimes or seek help from the police, for fear they or a loved one will be deported. As President Obama's own Task Force on 21st Century Policing noted in its 2014 report, law enforcement agencies' ability to "build relationships based on trust with immigrant communities," is "central to overall public safety." That is why the Task Force urged the government to "decouple federal immigration enforcement from routine local policing."
Citing many of these concerns, the Department of Homeland Security (DHS) and ICE announced last fall that S-Comm would be "discontinued" and replaced by a new initiative, the Priority Enforcement Program, or PEP. PEP would prioritize immigrants convicted of certain crimes, and under which ICE would mainly request "notification" of when a target is about to be released, rather than issuing a detainer.
But dig into the details, and it looks like S-Comm, rather than being discontinued, has been merely rebranded. PEP, like S-Comm, inextricably entangles local and state law enforcement in immigration enforcement and still relies on over-broad fingerprint checks. It also appears that detainers remain very much a part of PEP, since DHS retains the discretion to issue them in "special circumstances" which it has declined to define. The Obama Administration's attachment to the S-Comm/PEP system requires more, not less vigilance from local communities who don't want their police departments transformed into mini-immigration authorities.
Sanctuary policies did not kill Kathryn Steinle. In the wake of tragedies like this, we must resist fear-mongering and call out blatant attempts by politicians to veil their racism as outrage for electoral gain.
Alisa Wellek is is Co-Executive Director of the Immigrant Defense Project. Ghita Schwarz is a Senior Staff Attorney at the Center for Constitutional Rights.