Moore: Anti-sanctuary bill wrong for Detroit

The Detroit Police Department has a lot of work on its hands, and this has been the case for many years. A bill in the Michigan Senate, termed the “sanctuary policy prohibition act” would only make matters worse for Detroit. It would strip the Police Department of discretion in terms of how or when to assist the federal government in enforcing immigration law, adding to its overwhelming duty of enforcing state criminal law by adding federal civil law as well.

The sanctuary bill in Lansing was motivated by the murder of a young woman in San Francisco by a person who had been deported numerous times in the past. This event has provoked federal, state and local examination of what are called sanctuary ordinances and laws, which generally limit state and local law enforcement in inquiring about the immigration status of people that those agencies encounter in pursuit of their normal responsibilities.

It does raise a different issue: state or local detention of an already identified person when the federal government has not sought a warrant. The bill’s supporters, however, mistakenly see the Detroit policy as doing the same thing, giving shelter to criminal immigrants. But, the bill’s supporters fail to recognize what the Detroit ordinance actually says and why it exists. Thus, their solution generates more harm than good.

Section 5 of the anti-sanctuary bill prohibits local governments from having a law or policy which limits or prohibits an officer from “communicating or cooperating” with federal officials concerning immigration status. This provision closely tracks the federal immigration law which states that no local or state entity may restrict an official from communicating with federal immigration officials

On this point, the Detroit city ordinance does not run afoul of federal law. It states that Detroit police officers will not “solicit information concerning immigration status for the purpose of ascertaining compliance with federal immigration law.” It is a “don’t ask” policy rather than a “don’t tell” policy. There are several important policy reasons for a “don’t ask” approach. As noted at the outset, it conserves limited police resources for enforcing state criminal law. It avoids the occurrence or appearance of police profiling on the basis of race or ethnicity.

Under the city ordinance, Detroit police officers are free to communicate to federal immigration officials any information they receive as long as they are not engaged in actively trying to elicit that information.

In order to ensure that local law enforcement are actively involved in immigration enforcement, local governments are required to report how many times they’ve reported people to ICE. Failure to comply will result in the state treasurer cutting off state funding. In the case of Detroit, this of course risks the city slipping back into bankruptcy.

Andrew Moore is associate professor of law at the University of Detroit Mercy School of Law.