Public Safety and the Fourth Amendment Work Together

By Christopher N. Lasch and César Cuauhtémoc García Hernández

On Monday, the Colorado Senate is expected to consider a bill to prohibit cities and counties from limiting their role in enforcing federal immigration law. Senate Bill 17-281, the Colorado Citizen Protection Against Sanctuary Policies Act, relies on two fallacies perpetuated by the Trump administration in its campaign against so-called “sanctuary” cities.

First, President Trump claims sanctuary jurisdictions endanger the public. S.B. 281 likewise claims that sanctuary policies are “contrary to the safety” of Coloradans. This assertion is demonstrably false. Study after study has shown that noncitizens—regardless of their immigration status—commit less crime than citizens. As Michael Tonry noted, high levels of both legal and illegal Hispanic immigration has been credited with a decline in American crime rates.

Other studies demonstrate that adopting sanctuary policies does not endanger the public. Recently, Tom K. Wong concluded that not only is crime lower in sanctuary counties, their economic indicators—including median household income, poverty rate, and unemployment—are stronger than in non-sanctuary counties. Aware of these facts, many law enforcement officials oppose involving the local police in federal immigration matters. In Colorado, the County Sheriffs of Colorado, Colorado Association of Chiefs of Police, and Colorado Counties, Inc., a nonpartisan organization that assists county commissioners, all oppose SB 281.

Proposals like S.B. 281 suggest that law enforcement voices should be overridden. Instead of local officials making decisions about policing, S.B. 281 would hand that power to state legislators. That would put police chiefs and sheriffs in the unfortunate position of having to follow politicians’ dictates over sound policing practices.

S.B. 281’s second faulty assumption is that sanctuary policies “are prohibited by federal law.” This is a common claim of the Trump administration. There are more than 600 sanctuary policies in place across the country. Not one has been found to violate federal law. In fact, most sanctuary policies were adopted to comply with federal law—specifically, the Fourth Amendment. Numerous federal courts have concluded that requests made by immigration officials for the prolonged detention in local jails of persons otherwise entitled to release, called immigration detainers, are rife with Fourth Amendment problems. After two of the most significant judicial decisions in 2014, every Colorado sheriff stopped the illegal practice.

The legal principles that led all Colorado sheriffs to stop accepting detainers are straightforward. The federal government cannot force local sheriffs to hold prisoners on its behalf at Colorado expense. If sheriffs do hold someone voluntarily at the federal government’s request, they are financially liable if the detention turns out illegal. Since the detentions requested by federal immigration officers are the constitutional equivalent of new arrests, they must be supported by evidence that would justify a local police officer or sheriff in making an arrest, such as probable cause of a crime, or a judicially issued warrant. Neither is standard practice for the federal Immigration and Customs Enforcement agency (ICE). Though a new ICE policy requires detainers to be accompanied by immigration “warrants,” the policy specifically states that these warrants will be issued by ICE officers, as they always have been. They do not involve review by a neutral judge, like the warrants police in every city and county request daily to pursue criminal investigations, and do not satisfy the Fourth Amendment.

Colorado sheriffs rightly concluded that neither immigration detainers nor immigration warrants withstand legal scrutiny. Colorado legislators should respect their decision to abide by the Fourth Amendment and protect the communities they serve. Sanctuary policies do not threaten public safety, and they do not violate federal law. Coloradans should reject S.B. 281.

Christopher N. Lasch is an associate professor of law at the University of Denver and co-teaches the school’s Criminal Defense Clinic. César Cuauhtémoc García Hernández is an assistant professor of law at the University of Denver and publisher of the crimmigration.com blog.

This article was originally published in the Denver Post on April 21, 2017 with the headline “Colorado Sanctuary City Bill Relies on Fallacies.”