JURIST Guest Columnist Colin Whitlow, Head of Content at CrowdJustice, discusses the legal battle between “sanctuary cities” and the federal government and how one directly related issue has received notably less attention: whether sanctuary cities may incur civil liabilities in the event that an undocumented immigrant commits a crime…

The legal and political conversation around the treatment of so called “sanctuary cities” has grown into a hot button issue in recent months. President Trump’s January 25 executive order threatening to deprive sanctuary cities of federal funding raised the stakes around this issue to an all-time high, with San Francisco and other cities now suing the Trump administration [PDF] over the constitutionality of the order.

The term “sanctuary city” typically refers to any local jurisdiction that has ordinances in place that limit their cooperation with federal authorities, such as Immigration and Customs Enforcement (ICE), on immigration matters or limit the ability of local police to inquire about the immigration status of arrestees. Such jurisdictions include New York City, Los Angeles, San Francisco and Seattle.

In the wake of Trump’s executive order, a series of questions has emerged relating to the rights of these localities and the resulting jurisdictional conflicts. In a recent example, U.S. District Judge William Orrick declined a request [PDF] by the Justice Department to remove an earlier injunction barring federal officials from cutting off grants from sanctuary cities. The focus of DOJ’s request was a memo by Attorney General Jeff Sessions [PDF] that purported to narrow the scope of the initial Executive Order; however, Judge Orrick ruled that the Attorney General’s implementation guidance did not alter the analysis informing the court’s initial decision to impose the injunction.

More recently, Attorney General Sessions issued a requirement [PDF] that cities receiving Byrne JAG grants will have federal funding withheld if they don’t cooperate with federal immigration authorities. However, many are openly questioning the Justice Department’s authority to impose such conditions.

While these issues of jurisdiction and authority have played out amidst high public interest, there is another issue that has received far less attention in this debate: whether sanctuary cities could face civil liabilities when undocumented immigrants commit crimes within their jurisdictions.

The now-famous case involving Kate Steinle illustrates the basic question: In 2015, a San Francisco woman named Kate Steinle was killed by a ricocheting bullet. The bullet was shot by Juan Francisco Lopez-Sanchez, an undocumented immigrant who had been deported five times. Prior to Steinle’s murder, Lopez-Sanchez was released from San Francisco County Jail despite a detention order from ICE for possible deportation, in part because there were no outstanding warrants for his arrest – as a sanctuary city, San Francisco limits cooperation with ICE in cases where there are no active charges against an immigrant.

Kate Steinle’s family filed a civil lawsuit against the City of San Francisco for negligence in the death of their daughter on grounds that the city should have heeded ICE’s request to detain Lopez-Sanchez pursuant to federal statute, 8 U.S. Code § 1373(a). A recent ruling [PDF] dismissed the family’s claims.

In other lawsuits challenging Trump’s executive order threatening funding to sanctuary cities, this same issue is at play: whether 8 U.S. Code § 1373(a) creates a mandatory duty for local governments to cooperate with ICE and other federal immigration authorities.

The question of whether local governments have a mandatory duty to cooperate with ICE is likely headed to higher courts in some form, and the outcome on this question may be dispositive for a range of legal issues from constitutional law to civil liability.

If the courts determine that there is no mandatory requirement for sanctuary localities to cooperate with ICE, civil suits such as Steinle’s may be estopped from separately litigating the issue of liability. However, even where a mandatory obligation is found, civil litigants will still face an uphill battle; plaintiffs would have to prove a causal link between disobeying federal immigration authorities and subsequent events leading to a crime.

Negligence liability incurred by current sanctuary cities might impact other cities’ consideration of taking on that status, perhaps creating a chilling effect that prevents localities from limiting their cooperation with federal immigration authorities. Local jurisdictions will need to weigh the value of fighting for (and potentially gaining) clearer independence from the federal government around how they define and protect their immigrant populations against the negative consequences associated with exposing themselves to newly clarified liabilities.

The discussion around sanctuary cities highlights a larger debate on how much autonomy local governments, such as cities, have on shaping their own policies, even where those policies intersect with federal powers such as immigration. Sentiments brought to the surface within numerous forums vary widely, with walls built across political and geographic lines. Caught in the tension are nothing less than the rights of immigrants and citizens, concerns about safety and community relations, and competing visions of society.

Colin Whitlow currently serves as the Head of Content at CrowdJustice. Mr. Whitlow previously worked in strategy at Google and led business development at Start Media. He believes storytelling is one of the most powerful tools available to right injustices.

Suggested citation: Colin Whitlow, JURIST – Professional Commentary, Aug. 13, 2017, http://jurist.org/hotline/2017/08/Colin-Whitlow-sanctuary-cities.php