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HomeMy WebLinkAbout04-04-2017 Item 17, Relating to Federal Immigration Enforcement Cooperation - Declaring SLO a Welcoming City to all Persons Meeting Date: 4/4/2017 FROM: Chief Deanna Cantrell Prepared By: Christine Dietrick, City Attorney Derek Johnson, Assistant City Manager SUBJECT: RESOLUTION FORMALLY SETTING FORTH THE CITY’S CURRENT POLICIES AND PRACTICES RELATING TO FEDERAL IMMIGRATION ENFORCEMENT COOPERATION AND DECLARING SAN LUIS OBISPO AS A WELCOMING CITY TO ALL PERSONS, IRRESPECTIVE OF IMMIGRATION STATUS RECOMMENDATION Pursuant to Council direction, consider a Resolution that sets forth the City’s current policies and practices relating to Federal immigration enforcement cooperation and declaring the City as a welcoming city to all persons, regardless of their immigration status. DISCUSSION The proposed Resolution recognizes that the City of San Luis Obispo has a history of inclusion and that the City wishes to “foster trust and cooperation” between the City, our Police Department, and immigrant communities. The resolution (1) calls upon all City residents, departments and employees to report acts of “bullying, discrimination and hate violence,” and (2) states that “City employees, including members of the San Luis Obispo Police Department, shall not directly enforce Federal civil immigration laws and shall not use city monies, resources or personnel to investigate, question, detect, or apprehend persons” solely for federal immigration violations, unless required by state or federal law. This essentially articulates the City’s current practices relating to Federal Immigration enforcement. Background The City of San Luis Obispo and San Luis Obispo Police Department are committed to providing services to the community equally, fairly and without discrimination toward any individual or group. It is currently the policy of the City of San Luis Obispo to treat all persons equally, with dignity and respect, regardless of race, religion, creed, color, national origin, ancestry, age, sex, sexual orientation, gender, gender identity, or disability status. The San Luis Obispo Police Department’s mission is to “maintain a safe city… while preserving the rights of all through a commitment to service, pride and integrity.” To achieve that mission, the San Luis Obispo Police Department has not participated in the direct enforcement of immigration laws. Moreover, the practice at the San Luis Obispo Police Department is to not ask people their status in the United States, whether they are contacted as victims, witnesses or suspects. Public safety is the primary mission of local law enforcement, not immigration. The San Luis Obispo Police Department lacks the authority and jurisdiction to enforce federal Packet Pg. 357 17 immigration law. In keeping with its public safety mission, the San Luis Obispo Police Department strongly believes that undocumented immigrants who commit violent and serious offenses against members of our community should be subject to the immigration laws of this country. Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) not only enforce immigration, but focus on organized crime, human trafficking, narcotics and weapons investigations, and national security and failing to partner with any federal partner could result in lowered public safety. As a result of this broader mission of the Federal agencies, there are times when the San Luis Obispo Police Department should and does participate in law enforcement activities with these Federal agencies to fulfill its mission to “maintain a safe city….”. On March 7, 2017, the Council directed staff to bring forward at a future meeting a resolution formally setting forth the City’s current policies and practices relating to Federal immigration enforcement cooperation and declaring San Luis Obispo as a welcoming city to all persons, irrespective of immigration status. The proposed Resolution is a general statement of principles and affirmation of existing practices. The Resolution states that the City should be safe for all community members, regardless of immigration status; should encourage trust between immigrant communities and law enforcement; and should not use its resources to directly enforce Federal immigration laws. The term “sanctuary city” generally refers to local jurisdictions that in some way limit their cooperation with federal immigration authorities, typically by refusing to honor detention requests from the Immigration and Customs Enforcement Service (ICE) (Brookings Institute, February 24, 2017). Most often, such requests are directed to Counties and large cities that operate jails, which the City does not. The President, through an Executive Order issued in January, ordered, in relevant part, as follows: “Sec. 9 Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (a) …the Attorney General and the Secretary1, …to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary fo r law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, …to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law [emphasis added]. (b) … the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed 1 Refers to Secretary of Homeland Security. Packet Pg. 358 17 by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens. (c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction. **** Sec. 18 (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. At this point, the criteria that may be used by the Secretary of Homeland Security to designate “sanctuary jurisdictions” is unclear, as is the scope and extent of grant funding that may be targeted. The Order itself expressly defines jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” as sanctuary jurisdictions, subject to grant withholding under the Order. That section reads as follows: 8 U.S. Code § 1373 - Communication between government agencies and the Immigration and Naturalization Service (a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities … no person or agency may prohibit, or in any way restrict, a … local government entity from doing any of the following with respect to information regarding the immigration status…: (1) Sending such information to, or requesting or receiving such inform ation from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. While the section prohibits local restrictions on the requests for, exchanges of, or maintenance of immigration status information, there is nothing in the law that prohibits local restrictions on use of local resources to inquire into, investigate or collect (rather than maintain) immigration status information from individuals. Obviously, a jurisdiction cannot share information that it does not collect. Thus, staff has crafted the recommended Resolution to focus on issues of inquiry and collection of immigration information from individuals to avoid potential conflict with the federal law referenced in the Order. In that manner, the City avoids falling within the definition Packet Pg. 359 17 of a sanctuary jurisdiction expressly articulated in the Order, while clearly asserting its resource and enforcement priorities and inclusive community values. What is significantly more ambiguous is what might constitute “a statute, policy, or practice that prevents or hinders the enforcement of Federal law” for purposes of grant withholding. A Federal interpretation of that language purporting to compel any direct or proactive local immigration enforcement activity would likely run afoul of the Federal constitution on 10th amendment grounds. Further, to the extent that the Order may be asserted to support the withdrawal of past funding not specifically conditioned on compliance with Federal immigration law or restrictions on prospective federal funding with no nexus to immigration issues (i.e., transit funding), the Order would be highly constitutionally suspect under recent US Supreme Court authority (National Federation of Independent Businesses v. Sebelius, involving the constitutionality of the Affordable Care Act). At the same time, the state legislature is considering specific rules to limit law enforcement cooperation with federal immigration authorities. Senate Bill 54, the “California Values Act” proposes new rules for cities, counties and school districts which limits information that can be provided to immigration authorities. Specifically, the law would repeal requirements that arresting agencies report immigration information to Federal officials and prohibit State and local law enforcement agencies from participating in enforcement of Federal immigration law. Additionally, Senate Bill 54 would prohibit detaining an individual based on an immigration hold and directs the Attorney General to publish model policies within three months. ENVIRONMENTAL REVIEW This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378. FISCAL IMPACT The potential fiscal impact of passing the Resolution is uncertain. The Resolution by itself does not generate any costs or revenues. The primary area of uncertainty relates to President’s Executive Order should the Resolution be construed to mean that the City of San Luis Obispo has declared itself a “sanctuary jurisdiction”. Federal law does not require the City to enforce federal immigration laws. But the President, through his Executive Order, has directed the Attorney General and Secretary of Homeland Security to identify “sanctuary jurisdictions” and deprive them of Federal grant funds. At this point, it is unclear how broadly the Federal government will identify “sanctuary jurisdictions” and which funds will be targeted. A lawsuit filed by the City/County of San Francisco on January 31, 2017 challenges this Exe cutive Order. San Francisco’s lawsuit seeks a declaration that San Francisco is in compliance with 8 U.S.C. section 1373, which prohibits restrictions on communicating with Federal immigration authorities Packet Pg. 360 17 about a person’s immigration status, or in the alternative, that “Section 1373 is unconstitutional on its face and as applied to state and local Sanctuary City laws such as San Francisco’s.” The City receives various federal funds including Community Development Block Grant, Federal Transit and Transportation Funds, and Public Safety Funding. These funds are outlined below for reference: Program City Fund Name (e.g. General Fund, Water Fund, etc.) Federal Fund Type (e.g. FAST Act, CDBG, Fed Grant Name) Description One-Time Amount Ongoing Amount Transit Operations Transit Fund Federal Transit Authority (FTA) Grant funds for transit operations and capital purchases/projects $ 1,614,500 Transit Operations Transit Fund Federal Transit Authority (FTA) Grant funds for transit operations and capital purchases/projects $ 1,424,554 Transit Operations Transit Fund Federal Transit Authority (FTA)3 busses $ 1,125,000 CIP Engineering General Fund Active Transportation Program (ATP) Grant funds for bike/pedestrian projects (i.e. Railroad Safety Trail - Taft to Pepper) $ 3,244,000 Community Development General Fund Community Development Block Grant Homeless Services, Affordable Housing, Infrastructure $ 442,462 Police Law Enforcement Grant Fund DOJ -Edward Byrnes Memorial Justice Assistance Grant Program Grant funding (non-competitive grant) $ 15,000 Police Law Enforcement Grant Fund DOJ (funded under the DOJ Appropriations Act, 2016 (PL 114-112) Grant Funding (competitive grant) - Body Worn Cameras $ 74,060 Police General Fund U. S. Dept. of Justice, Bulletproof Vest Partnership (BVP) Reimbursement for duty vests. Reimburses at 50% of cost. $ 12,000 Fire General Fund US Department of Agriculture Forest Service Reimbursement for personnel and equipment mutual aid wildland fires $ 300,000 Fire General Fund FEMA - 1)Assistance to Firefighter grants 2) Fire Prevention grants 3) Local Hazard Mitigation plan or project Typically for equipment or fire prevention program or hazard mitigation Varies Fire General Fund National Fire Academy and/or Emergency Management Institute (both are under FEMA) Provides reimbursement for eligible participation in training and education programs, including those on the campus of the National Fire Academy in Maryland. Varies CIP Engineering General Fund Highway Bridge Program (HBR) Grant funds for the Marsh Street Bridge Replacement project. $ 7,385,970 TOTAL: $ 11,829,030 $ 3,808,516 ALTERNATIVES The City Council could decide to alter the draft Resolution or decide not to adopt a Resolution. Attachments: a - Draft City of San Luis Obispo Resolution Packet Pg. 361 17 R ______ RESOLUTION NO. ____________ (2017 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, FORMALLY SETTING FORTH THE CITY’S CURRENT POLICIES AND PRACTICES RELATING TO FEDERAL IMMIGRATION ENFORCEMENT COOPERATION AND DECLARING SAN LUIS OBISPO AS A WELCOMING CITY TO ALL PERSONS, IRRESPECTIVE OF PROTECTED CHARACTERISTICS OR IMMIGRATION STATUS WHEREAS, the City of San Luis Obispo is made up of diverse individuals, both native born and immigrants, whose collective cultures, religions, backgrounds, orientations, abilities and viewpoints join to form a community that prides itself on being a place that welcomes persons and families of all walks of life; and WHEREAS, recent Executive Orders and statements of federal officials have created a sense of uncertainty and fear among many communities in San Luis Obispo, across our State and across the Nation; and WHEREAS, the City of San Luis Obispo assures all members of its community that the City supports them, will do all it can to maintain and improve their quality of life, and will not tolerate acts of hate, discrimination, bullying, or harassment; and WHEREAS, the San Luis Obispo City Council wishes to declare that San Luis Obispo is a safe place for immigrants from all countries, and of all races, religions, ethnicities, disabilities, and sexual and gender identities, including the estimated 9,000 undocumented immigrants in SLO county (Public Policy Institute of California, 2013) and their loved ones; and WHEREAS, San Luis Obispo’s immigrant families contribute to the economic and social fabric of the City by establishing and patronizing businesses, contributing to arts and culture, and achieving other accomplishments which benefit not only themselves and their families, but the entire community; and WHEREAS, it is the City Council's desire to ensure that its immigrant residents participate in civic life and daily activities and engage constructively with law enforcement and other City services without fear of being arrested or reported to the United States Immigration and Customs Enforcement agency solely due to their immigration status; and WHEREAS, many children who are native to the United States or are undocumented immigrants have been separated from their families by United States Immigration & Customs Enforcement Agency due to their parents' or their personal immigration status; and WHEREAS, it is the policy of the City of San Luis Obispo to treat all persons equally, with dignity and respect, regardless of race, religion, creed, color, national origin, ancestry, age, sex, sexual orientation, gender, gender identity, or disability status; and Packet Pg. 362 17 Resolution No. _____ (2017 Series) Page 2 R ______ WHEREAS, the San Luis Obispo Police Department is committed to providing law enforcement services to all community members by enforcing the law equally, fairly and without discrimination toward any individual or group, regardless of race, religion, creed, color, national origin, ancestry, age, sex, sexual orientation, gender, gender identity, and disability status; and WHEREAS, the San Luis Obispo Police Department recognizes the need for a safe community and values a positive and trusting relationship with all community members they are sworn to protect; and WHEREAS, to encourage crime reporting and cooperation in the investigation of criminal activity, all individuals, regardless of their immigration status, must feel secure that contacting or being addressed by members of law enforcement will not automatically lead to immigration inquiry and/or deportation actions initiated by the local police; and WHEREAS, the enforcement of civil immigration laws by local police agencies raises many complex legal, logistical and resource issues for cities, including the potential to undermine the trust and cooperation with immigrant communities; and WHEREAS, the City of San Luis Obispo Council is greatly concerned about public safety in San Luis Obispo and the mission of the San Luis Obispo Police Department is to maintain a safe city by working in partnership with the community to protect life and property, prevent and reduce crime, and improve the quality of life in our neighborhoods, while preserving the rights of all through a commitment to Service, Pride and Integrity, NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo as follows: SECTION 1. The San Luis Obispo City Council calls upon all City residents and all City Departments and employees to speak out against acts of bullying, discrimination and hate violence and report any alleged hate crimes to appropriate law enforcement agencies. SECTION 2. City officials and employees, including members of the San Luis Obispo Police Department, shall not directly enforce Federal civil immigration laws and shall not use city monies, resources or personnel to investigate, question, detect, or apprehend persons based on uncertainty regarding immigration status or solely on a possible violation of immigration law, unless required by State or Federal law. SECTION 3. The City of San Luis Police Department has adopted and implements Police Department policy 443.2 regarding immigration violations which states “It is the policy of the San Luis Obispo Police Department that all members make personal and professional commitments to equal enforcement of the law and equal service to the public. Confidence in this commitment will increase the effectiveness of the Police Department in protecting and serving the entire community and recognizing the dignity of all persons, regardless of their immigration status.” The practice is that the Police Department does not ask people their status in the United States whether being contacted as victims, witnesses or suspects. Packet Pg. 363 17 Resolution No. _____ (2017 Series) Page 3 R ______ SECTION 4. Nothing herein is intended, nor shall it be construed, to direct non- compliance with state or federal law. SECTION 5. Effective Date. This Resolution is effective immediately upon adoption. Upon motion of _______________________, seconded by _______________________, and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this _____ day of _____________________, 2017. ____________________________________ Mayor Heidi Harmon ATTEST: ____________________________________ Carrie Gallagher City Clerk APPROVED AS TO FORM: _____________________________________ J. Christine Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, this ______ day of ______________, _________. ____________________________________ Carrie Gallagher City Clerk Packet Pg. 364 17