ACLU Position on SB 275 and AB 140

Wednesday, October 18, 2017

Provided to the Senate Committee on Labor and Regulatory Reform

Re:          Vote NO on SB 275

The American Civil Liberties Union (ACLU) of Wisconsin, the state affiliate of the national ACLU, is strongly opposed to SB 275, the anti-immigrant proposal currently pending before the Senate Committee on Labor and Regulatory Reform. This proposal would undermine public safety in Wisconsin and could expose cities and counties throughout the state to costly litigation. The bill is fraught with constitutional and policy problems, and is both legally and fiscally irresponsible.

The ACLU of Wisconsin urges you to vote NO on SB 275 for the following reasons:

I.                    SB 275 would isolate victims of violence, harm public safety, and undermine local law enforcement priorities.

SB 275 would prohibit jurisdictions in Wisconsin from enacting ordinances, resolutions, or policies that prohibit the enforcement of a federal or state law relating to “illegal aliens” or “ascertaining whether an individual has satisfactory immigration status.” These provisions would significantly hinder the ability of local law enforcement agencies to build trust with vulnerable and isolated victims of domestic and sexual violence and other crimes. Police know from experience that trust between immigrant communities and police is undermined when police are believed to be working with federal immigration officials. Immigrant victims and witnesses – and their U.S. citizen family and friends – are far less likely to report crimes and helpful intelligence when they fear that they or their family members could be questioned, detained, or deported.

Police chiefs and sheriffs also need to be able to supervise their own officers, and to tailor their practices to local needs. They know conditions on the ground the best. SB 275 would cut off their ability to manage their own departments, which will inevitably detract from their core public safety mission. Immigration enforcement is, first and foremost, a federal responsibility. In attempting to require local law enforcement to carry out the federal government’s immigration enforcement responsibilities via this bill, the state government would be substituting its judgment for the judgment of local law enforcement agencies.

The Major Cities Chiefs Association[1], the Presidential Task Force on 21st Century Policing[2], and Attorneys General from New York, Oregon, California, Washington, Rhode Island, and the District of Columbia[3] have all adopted positions or policies opposing the entanglement of local law enforcement with federal immigration enforcement for these reasons.

 

II.                  SB 275 would expose cities and counties to legal liability.

This bill would require cities and counties in Wisconsin to engage in activities that could subject them to costly litigation. First, it would force them to comply with any “lawful detainer” issued by U.S Immigration and Customs Enforcement (ICE). An “ICE detainer” is a written request that local law enforcement detain an individual for an additional 48 hours after he/she would otherwise be released.  These have been used to provide ICE additional time to examine an individual’s immigration status, decide whether to take the individual into custody, and/or facilitate transfer into federal custody. These detainers are typically issued without a judicial warrant supported by probable cause. Local police acting upon ICE detainer requests have faced liability for unlawful detentions in violation of the Fourth Amendment and Due Process Clause. Second, local agencies that get overly involved in immigration enforcement, without proper training or supervision, have been sanctioned by courts for violating prohibitions against racial profiling, especially under 287(g) “taskforce” agreements.[4] There is no reason to force local police to take those risks.

 

It is important to note that ICE detainer requests are voluntary, not mandatory. Many localities refuse to honor them unless supported by a judicial warrant.[5]  Localities that maintain this requirement are protecting their best interests, and promoting adherence to the Constitution. They are not violating any law, as the federal government itself has repeatedly admitted. The Tenth Amendment of the Constitution protects local law enforcement agencies from being compelled to perform the functions of the federal government. When local law enforcement agencies uphold the Fourth Amendment by declining to honor ICE detainers that are not supported by a judicial warrant, ICE still has many tools at its disposal to carry out its mission.

 

III.               Conclusion

SB 275 perpetuates the myth that it is possible to create “sanctuary” zones free from immigration enforcement. It is not.  But SB 275 would shift responsibility for this to already overburdened local law enforcement agencies. The bill would harm public safety in Wisconsin and expose local governments to liability for constitutional violations. And it threatens to impose financial penalties on jurisdictions in our state that have decided to limit their involvement in federal immigration enforcement in order to promote trust in their communities.  SB 275 does not reflect the values or the best interests of the residents of Wisconsin.

The ACLU is strongly opposed to SB 275 and urges all senators to vote NO when it comes up for a vote in your committee.



[1] See Major Cities Chiefs Association, “Immigration Policy” (2013), available at https://www.majorcitieschiefs.com/pdf/news/2013_immigration_policy.pdf.

[2] See President’s Task Force on 21st Century Policing, “Final Report of the President’s Task Force on 21st Century Policing” (May 2015) at 18 (Action Item 1.9.1), available at https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[3] See “Setting the Record Straight on Local Involvement in Federal Civil Immigration Enforcement: The Facts and the Laws” (May 2017), available at https://ag.ny.gov/sites/default/files/setting_the_record_straight.pdf.

[4] Letter from ACLU to Bruce Friedman, Senior Policy Advisor, Office for Civil Rights and Civil Liberties, Dep’t of Homeland Sec. (Mar. 15, 2016), available at https://www.aclu.org/letter/aclu-letter-dhs-crcl-re-287g-renewals-march-....

[5] See, e.g. the clear recommendation from the Kentucky Association of Counties from September 2014: http://www.aclu-ky.org/wp-content/uploads/2014/09/kaco-memo.pdf.

 

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