Taking a Hard Look at Turning a Blind Eye: Sanctuary Cities in the U.S. By Marty Bormolini

Taking a Hard Look at Turning a Blind Eye: Sanctuary Cities in the U.S.

By Marty Bormolini

Illegal immigration has been a hot-button political issue in the U.S. for decades, but a recent homicide in San Francisco has focused the national discussion on a narrower issue: immigration sanctuaries. In July, Francisco Sanchez, an undocumented Mexican immigrant, allegedly fired the bullet that killed Kathryn Steinle, a 32-year-old San Francisco resident.[1] Sanchez had previously been deported five times and had a history of non-violent criminal offenses, completing a prison sentence for a drug offense in April.[2] However, in compliance with provisions in San Francisco’s immigration code[3] enacted in 1989 and the Due Process for All ordinance[4] enacted in 2013, city officials did not comply with a federal request to provide notice of his release to immigration agents.[5]

While the killing of Kathryn Steinle has led to heated arguments over whether city and/or federal officials were doing their jobs correctly,[6] it has also opened to door to a national debate about the general existence of so-called “sanctuary cities.”[7] San Francisco is one of over a hundred city, county, and even state governments with laws, policies, resolutions, orders and/or regulations explicitly forbidding or limiting cooperation with federal immigration agencies in their attempts to identify undocumented immigrants.[8] Some of the first sanctuary laws in the U.S. were enacted in the 1980s with the intention of protecting refugees who had failed to achieve federal refugee status.[9] However specific their initial goals, many of these laws have lasted decades and drawn new supporters over time. San Francisco Sheriff Ross Mirkarimi, for instance, argues that sanctuary policies serve to strengthen local governments’ relationships with their immigrant populations.[10]

Sanctuary laws raise some interesting constitutional questions because of their inherent conflict between federal and local law.[11] New York City challenged a federal statute which it believed violated the 10th amendment of the U.S. Constitution.[12] The Second Circuit rejected the city’s argument, specifically reasoning that it was acceptable for Congress to “prohibit state and local governmental entities or officials… from directly restricting the voluntary exchange of immigration information with the INS.”[13] In California, a taxpayer challenged a Los Angeles sanctuary law, arguing that it was invalid in light of a federal statute.[14] The California Court of Appeals upheld the sanctuary law, finding it neither facially in conflict nor pre-empted.[15] While these cases and others present rather mixed holdings regarding complex statutory issues, one scholar has argued that they ultimately lead to very strong constitutional arguments in favor of most sanctuary laws.[16]

The debate over the general existence of sanctuary cities raises interesting questions, but it may still be a good idea to look closer at the specific connection between Kathryn Steinle’s death and the national immigration debate. It is fairly likely that San Francisco’s sanctuary laws allowed Francisco Sanchez to remain in the city until the day of Kathryn Steinle’s shooting, and for the sake of argument we could assume that the law did exactly that. He had also been repeatedly deported and committed various non-violent crimes. From one point of view, it may seem ridiculous to allow someone like Mr. Sanchez to remain in the country despite so many “second chances” (and it’s worth mentioning that any particular sanctuary law could be written so that repeat offenders like Mr. Sanchez would not be protected). But at the same time, does any of this history indicate that anyone should have suspected Mr. Sanchez of being a particular risk for violent crimes? Or, more generally, should we expect illegal immigrants to be more violent than any other resident?

The crime rate among illegal immigrants relative to other Americans has been debated for a long time, and can be difficult to pin down.[17] It is obvious that there are legitimate government interests in preventing unrestricted entry to the United States. If, in fact, illegal immigrants are generally committing more crimes than others, this would probably be another of the government’s interests in identifying them. But it also seems fairly obvious that communities have legitimate interests in making their immigrant populations feel like they are actually a part of the community. The debate over the existence of sanctuary cities must take both of these sides into account with a goal of finding what must be a delicate balance. Is the Kathryn Steinle case truly a good starting point for that debate?

The debate over sanctuary cities has become nationally relevant largely out of a sense of moral outrage. But what is the actual source of that moral outrage? To put it bluntly: are Americans angry that sanctuary laws (which have been in place for decades in hundreds of communities) played a part in a murder, or are Americans first and foremost angry that an illegal immigrant murdered an American? I believe that the latter is very likely the answer for many of the people participating in this debate.

Ultimately, sanctuary cities have now become a political target. Reasonable people are surely at least partly angry at the feeling that local governments may be helping illegal immigrants who are bad actors. But if we honestly want to discuss them on a national level and reconsider these laws, it is crucial that we acknowledge their long history and widespread use and attempt to seriously measure all of their impacts before we make kneejerk reactions.

[1] Vic Lee and Sergio Quintana, San Francisco Murder Suspect Sparks Immigration Debate, ABC 7 News (Jul. 6, 2015), http://abc7news.com/news/san-francisco-murder-suspect-sparks-immigration-debate/832207/.

[2] Id.

[3] S.F. Admin Code 12H (1989), http://sfgsa.org/index.aspx?page=1069.

[4] S.F. Ordinance 204-13 (Sept. 24, 2013), https://sfgov.legistar.com/View.ashx?M=F&ID=2650835&GUID=9E9091EA-082D-41EB-8282-43E2BD3AC2CA.

[5] Lee and Quintana, supra note 1.

[6] Caroyln Tyler and Cornell Barnard, Document Shows San Francisco Sheriff Asked Feds for Pier 14 Suspect, ABC 7 News (Jul. 8, 2015), http://abc7news.com/news/document-shows-sf-sheriff-asked-feds-for-pier-14-suspect/836683/.

[7] Lee and Quintana, supra note 1.

[8] See http://cis.org/Sanctuary-Cities-Map for a map of various U.S. cities, counties and states with sanctuary laws/rules/etc.

[9] See Michele Altemus, “The Sanctuary Movement,” 9 Whittier L. Rev. 683 (1988) for a discussion on the sanctuary movement.

[10] Michael Pearson, What’s a ‘sanctuary city,’ and why should you care?, CNN (Jul. 8, 2015), http://www.cnn.com/2015/07/06/us/san-francisco-killing-sanctuary-cities/.

[11] See Joseph Huston, “Sanctuary Cities: A Constitutional Primer,” 6 Dartmouth L. J. 211 (2008).

[12] City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).

[13] Id. at 35.

[14] Sturgeon v. Bratton, 95 Cal. Reptr. 3d 718 (Ct. App. 2009).

[15] Id.

[16] See Bill Ong Hing, “Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy,” 2 UC Irvine L. Rev. 247 (2012).

[17] See Jason Riley, The Mythical Connection Between Immigrants and Crime, The Wall Street Journal (Jul. 14, 2015), http://www.wsj.com/articles/the-mythical-connection-between-immigrants-and-crime-1436916798; but see Steven Camarota and Jessica Vaughan, Immigration and Crime, Center for Immigration Studies (Nov. 2009), http://www.cis.org/sites/cis.org/files/articles/2009/crime.pdf.

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