When former California Gov. Jerry Brown (D) signed legislation in October 2017 to limit law enforcement collaboration with immigration authorities, it was one of the most progressive sanctuary laws in the United States.
But a new report reveals some of the state’s law enforcement agencies are not abiding by the law, and others have developed workarounds to avoid compliance, allowing many in law enforcement to follow the Trump administration’s lead in attacking undocumented families.
SB 54, known as the “California Values Act,” restricts local law enforcement agencies in California from using resources to assist Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) in identifying, detaining, arresting, and transferring custody of immigrants. Early on, the law showed signs of having a marked effect on the lives of immigrants across the state. During its first five months of implementation, beginning in January 2018, the California Values Act led to a 41 percent decrease in ICE arrests at local jails in a state with more than 2 million undocumented people.
But “Turning the Golden State Into a Sanctuary State: A Report On the Impact and Implementation of the California Values Act (SB 54),” released Wednesday, found that of the 169 law enforcement agencies analyzed, about 40 percent had policies out of compliance with SB 54.
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Working With a ‘Rogue Agency’
The report used publicly disclosed documents from 169 California law enforcement agencies and found dozens were utilizing out-of-date, pre-SB 54 immigration enforcement policies or policies issued after SB 54 that include out-of-date provisions or omit major new provisions. Some law enforcement agencies had no immigration-related policies at all, while others rely on policies that don’t comply with the law and were drafted by a private company. The report was written by Asian Americans Advancing Justice–Asian Law Caucus, the University of Oxford Centre for Criminology, and Border Criminologies.
Lexipol, a private company, develops and sells department policies to law enforcement agencies in California that want to comply with the latest state and federal laws. Law enforcement agencies can adopt the company’s policies wholesale, or modify them. After the passage of SB 54 in October 2017, the California Department of Justice (DOJ) was tasked with providing guidance to law enforcement agencies in implementing the law. However, the state DOJ did not issue its guidance until March 2018, leaving a five-month gap between when the law was signed and when law enforcement agencies received guidance. Many law enforcement agencies turned to Lexipol.
Before the California DOJ released its guidance, Lexipol purported to offer law enforcement agencies an updated “Immigration Violations” policy, assuring agencies they would be SB 54 compliant, with the stipulation that SB 54 had “legally untested provisions” that hadn’t been “clarified through case law,” according to the report. Lexipol claimed their updated policy was “carefully crafted to balance the rights of community members with the need to safeguard lives and property and enforce the law.” In reality, Lexipol’s new policy encouraged law enforcement agencies to take immigration enforcement actions that had actually been barred by the state’s sanctuary law.
One of the report’s most troubling revelations is that 41 percent of the sheriff’s departments exploited an exception in SB 54 in order to neutralize the law’s effects. Under the sanctuary law, law enforcement agencies can only provide release date information to federal immigration agencies if the information is already available to the general public or if the detained person meets specific requirements related to their criminal history. Of the 58 sheriff’s departments reviewed, 24 took advantage of this exception by posting release date information, upcoming court hearing dates and locations, and personally identifying information—including residence and occupation—on their department websites. This enabled ICE to detain people upon release from law enforcement custody, even if the person didn’t have a criminal history that would have allowed for an ICE notification of release date or an in-custody transfer to the federal immigration agency. These sheriff’s departments only began posting this information online after the implementation of SB 54.
Other law enforcement agencies in the state have maneuvered around SB 54 compliance by allowing ICE to enter non-public, secure areas of jails to carry out immigration arrests before the detained person is released from law enforcement custody. Ostensibly, these are in-custody transfers, but they’re not being reported as such to the California attorney general, as SB 54 requires.
Angela Chan, one of the report’s authors, is policy director and senior staff attorney for the criminal justice reform program at Asian Americans Advancing Justice–Asian Law Caucus. Chan spent a decade advocating with sheriffs for better immigration-related policies. Chan told Rewire.News that she tries to explain to sheriffs that ICE is a “rogue agency,” one that is “notorious for human rights violations and lying to the public,” going “beyond what is required and allowed under federal laws.” She said she does this advocacy in hopes of deterring sheriffs from assisting the federal immigration agency.
Does it work?
“Unfortunately not. They are not receptive,” Chan said. “[Sheriffs] think the thin blue line includes ICE. For them, there doesn’t seem to be any distinction between ICE and another law enforcement agency. [Sheriffs] routinely say they will continue working with ICE the way they would work with any other law enforcement partner. Which suggests they are either OK with ICE’s abuses, or not fully informed about them.”
The new report found that law enforcement agencies are violating the law by asking people about their immigration status, detaining people in jails for immigration enforcement purposes, providing space in detention facilities to be used exclusively by ICE, and patrolling the border. Some sheriffs even continued to provide ICE with a wide array of information, even after the implementation of SB 54.
Documents obtained by the report’s authors revealed that Marin County Sheriff’s Department officials communicated with an ICE agent to notify them of information they would be posting on their website, which included the name, address, occupation, physical description, date of birth, court date, and release date of an immigrant in custody. Marin County Sheriff Robert Doyle communicated to deputies and staff that Marin County would continue to allow ICE to make arrests in its booking area, a direct violation of SB 54.
Chan said there is no financial incentive for law enforcement agencies to assist federal immigration authorities to this degree. This level of collaboration actually expends law enforcement agencies’ resources.
“Before, it could be argued there was a financial incentive because law enforcement agencies had contracts with ICE to carry out immigration enforcement, but over the last two years, those contracts have been ending left and right because the conditions of how these collaborations play out are so horrific and sometimes unlawful, that even sheriffs couldn’t defend the practice anymore,” Chan said.
Radicalized Law Enforcement Officials
Some law enforcement agencies are simply negligent in implementing SB 54, to the harm of immigrants under their jurisdiction, but for other agencies, something more nefarious could be at play. “For some sheriffs, it’s about being politically aligned with [President] Trump and ICE,” Chan said.
In March 2018, two months after SB 54 was implemented, former U.S. Attorney General Jeff Sessions was invited by the California Peace Officers Association (CPOA) to speak at the 26th Annual Law Enforcement Legislative Day. CPOA is a special-interest advocacy group that opposes sanctuary policies, and Sessions used the invitation to announce the Trump administration’s lawsuit against California for passing laws he said “intentionally obstruct the work of our sworn immigration enforcement officers.”
“It was a slap in the face to Californians,” Chan said. “The lawsuit of course went nowhere, but it was such a blatant signaling of [CPOA’s] stance on immigration. A number of sheriffs from California have been excited to accept invitations to the White House under Trump. There have been multiple instances where California law enforcement officials go and discuss their opposition to sanctuary policies. They have gone above and beyond their job requirements to stump against protections for immigrant communities.”
Chan said in conversations with officials from the California Police Chiefs Association prior to the signing of SB 54, police chiefs said they cared about immigrant communities, but claimed that some exceptions to SB 54 were needed in order to keep communities safe. Documents obtained by the organizations behind the report revealed a different story.
While SB 54 was still working its way through the state’s Democratic-dominated legislature, the California Police Chiefs Association was working to reduce SB 54’s impact by pushing through exceptions to the law. These exceptions were included in SB 54 and are now the primary pathways used by law enforcement agencies that want to work with ICE.
Anti-immigrant law enforcement is not a new phenomenon, but the Trump administration appears to have radicalized law enforcement officials. As Rewire.News reported, anti-immigrant hate groups like the Federation for American Immigration Reform (FAIR) have begun recruiting sheriffs and the National Sheriffs’ Association, cultivating these relationships to implement policies harmful to undocumented communities. (FAIR has spent years influencing federal immigration policy, and some anti-immigrant hate groups’ leaders regularly testify at congressional hearings. Under the Trump administration, they also hold key roles within federal immigration agencies.)
After Trump signed a series of anti-immigrant executive orders designed to criminalize immigrant communities and make every undocumented immigrant in the United States deportable, cities nationwide touted their already-existing sanctuary policies or adopted new ones. Meanwhile, some law enforcement agencies doubled down on their anti-immigrant stances.
This was certainly true in Oregon. In August 2018, 16 of the state’s 36 sheriffs signed a letter supporting ballot measure 105, a referendum that would repeal Oregon’s 31-year-old sanctuary law, first implemented after Polk County sheriff’s deputies and police officers were alleged to have racially profiled and harassed undocumented immigrants. Cloee Cooper of Political Research Associates (PRA) reported that some of the sheriffs who signed the letter to repeal Oregon’s sanctuary law work closely with “a Far Right network” of sheriffs, called the Constitutional Sheriffs and Peace Officers Association. Others work closely with FAIR.
Cooper, a research analyst at PRA, has investigated the vast network of “right wing nationalist and xenophobic organizations” working to influence sheriffs nationwide. Cooper has obtained data verifying that anti-immigrant hate groups are conducting trainings with law enforcement agencies that, for example, train officers in how to “spot the threat of jihad,” operating under the premise that Muslim people in the United States are “purveyors of jihad.”
“There have been whole trainings based on racist, debunked theories that make generalizations that are really dangerous,” Cooper said. “I absolutely think the public should be concerned about the National Sheriffs Association and its ties to anti-immigrant hate groups. This is happening at a national level and among state sheriffs associations, both of which are turning into vehicles for anti-immigrant rhetoric and organizing.”
Work to Be Done
As Rewire.News has reported, New York City, which has some of the strongest protections for immigrant communities in the United States, funnels immigrants into deportation proceedings over minimal infractions like jumping a subway turnstile. This is primarily due to “crimmigation,” the way federal immigration law and deportation policies entangle with the criminal justice system. Even cities that strive to be safe spaces for immigrants often have criminal justice systems that feed “the deportation machine.”
Chan said legislators in states like California and New York are leading the United States in protecting immigrant communities, but reports like hers “complicate the narrative.”
Many jurisdictions have adopted feel-good, symbolic sanctuary city ordinances, but in states like California that have enacted tangible policies, challenges still arise. “Turning the Golden State Into a Sanctuary State” includes a series of recommendations to law enforcement agencies, mostly outlining changes they can make to be in compliance with SB 54. Whether or not law enforcement agencies will take those considerations into account is another matter.
Some agencies in the report are choosing to go beyond their normal scope of duties, developing creative ways to work around SB 54 to continue collaborating with ICE. Chan said it’s important to remember that some of the law enforcement officials defying SB 54 are elected by voters, and the public should be aware of what they’ve been up to.
“I know it can seem hopeless to have a binding state law that actually creates liabilities for law enforcement agencies that, at the end of the day, still choose to bend over backwards to turn members of the community over to ICE,” Chan said. “But it’s important to shine a light on what they’re doing. The state legislature and the California attorney general’s office can set a deadline and force these agencies to be in compliance by that date. They can also develop additional legislation to better enforce the requirements of SB 54. There is a lot they can do to limit the harm being done to immigrant communities.”