Not EVERYONE Is Afraid To Talk About Sanctuary Cities-- Guest Post From TX-07 Candidate Jason Westin

-by Jason Westin

Congressman John Culberson is a career politician, first elected to office nearly 30 years ago. Prior to politics, like many politicians he went to law school, but apparently he has forgotten how the law works. In an interview with the Houston Chronicle in March, Culberson said "I'm the one who's going to make the final decisions, along with the president. No judge can compel me to release the money." In the same article, he called himself the "judge and jury" for these funds. U.S. District Court Judge William Orrick ruled on April 25th that Mr. Trump’s executive order that linked these federal law enforcement grants, worth billions of dollars, to immigration enforcement was illegal. Perhaps Judge Orrick and "Judge and Jury" Culberson should talk.

This article, full of ridiculous quotes, raises two questions about Mr. Culberson: How did he come to the wrong conclusion about his being above the law, and what money is he refusing to release?

Both of these questions are related to the idea of a "sanctuary city," a catchy phrase but a nebulously defined term. The phrase usually refers to large cities that do not turn over people who come across the police radar and are immigrants in the U.S. illegally. The term gained traction after a tragic event occurred in San Francisco, a criminal who had been deported multiple times murdered a young woman named Kate Steinle. San Francisco is labelled a "sanctuary city" as it bars local police from helping federal authorities kick out immigrants in the U.S. illegally, and critics say this allowed Steinle’s murder.

It seems pretty straightforward: bad guys in the US illegally should not be allowed to stay here and commit crimes. I don’t think you would find many people who would argue with that simple argument. Unfortunately, most things in life are not as simple as they seem.

There is a federal law (Section 1373 of title 8, chapter 12 of the United States Code), signed by Bill Clinton in 1996, that states: 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. As a lawyer, Congressman Culberson is surely capable of understanding this law.

The law is written in legalese, but is worth reading again-- it requires local governments to not prohibit or restrict information to be exchanged with Immigration and Naturalization Services-- but it does not compel this information to be shared or require keeping someone in jail without a warrant. Local governments can be within compliance of this law even if they don’t turn over people who cannot prove there are citizens. Thus, the strict definition of a "sanctuary city" would be one with a local law prohibiting or restricting information exchange with the federal government-- a rare event that doesn’t sound as sensational as Fox News would like.

Using the looser definition of a "sanctuary city" that doesn’t volunteer information on all its detainees, it turns out that many "sanctuary cities" are not cities at all, they are faith communities who view immigrants as refugees, or local sheriffs or police chiefs uncomfortable with or unable to jail people for up to 48 hours for minor offenses while awaiting the arrival Immigration and Customs Enforcement (ICE). In 2014, U.S. District Court Judge Janice Stewart ruled that Clackamas County had violated the Fourth Amendment rights of Maria Miranda-Olivares by jailing her for 19 additional hours after a case was settled to give ICE enough time to investigate her immigration status. The ruling stated that the local law enforcement had no right to hold her without a charge, and that it was responsible for paying over $30,000 in her legal bills. Most local governments constantly struggle with their budget, and this case made many of them re-think their relationship with ICE. According to the Immigrant Legal Resource Center, there are now more than 360 counties and 39 cities that won’t cooperate 100% of the time with ICE requests.

Beyond the financial ramifications of detaining immigrants, local law enforcement also worries about the impact on their ability to do their job effectively. If immigrants fear any interaction with police could result in them and their family being detained and/or deported, why would they ever help the police with information about a crime? Why would a woman or a child ever report domestic abuse? Indeed, there are now multiple reports of ICE detaining women who are leaving domestic abuse hearings, and of women who have dropped their domestic abuse cases for fear of repercussion against themselves or their children.

Now that we’ve better defined the difficulties around the challenges around the “sanctuary city” term, let’s talk about the money Congressman Culberson is threatening to hold. These funds, including the Byrne Justice Assistance Grants (JAG), are given to communities to determine their most pressing needs. These funds can be spent on a variety of needs as long as they fall within seven broad categories including law enforcement, crime prevention and education, drug treatment and enforcement, and crime victim and witness programs. These are not slush funds and are not used for trivial purposes – these are funds the law enforcement community depend upon to improve public safety. New York requested $9.2 million dollars in Byrne JAG funds in 2016 to:

1. Improve the quality, accuracy, and timeliness of criminal justice records.
2. Improve the capabilities and quality of work of forensic laboratories in DNA identification, ballistic evidence processing, new technologies, and improved quality.
3. Enhance the quality and effectiveness of violent crime and drug prosecution and enforcement, especially as it relates to gangs and to illegal possession and use or sale of guns, and gun violence reduction initiatives.
4. Improve the comprehensive investigation of non-fatal shooting cases.
5. Establish a New York State Criminal Justice Research Consortium to link criminal justice practitioners with academic researchers.
6. Improve the quality and effectiveness of prosecution and defense services.
7. Provide additional support for the State’s Regional Crime Analysis Centers who share information and provide law enforcement with accurate and timely data.
8. Enhance local law enforcement efforts to effectively and efficiently reduce the incidence of crime and violence in their locality through the use of evidence based, proven strategies.
9. Improve procedural justice in law enforcement agencies throughout the State.

All of these areas have the underlying goal of improving public safety, and none of these fund requests are controversial. These funds should not be a political football. Imagine if Clackamas County were forced to decide to whether to risk lawsuits from detained immigrants or risk losing funds to reduce violent crimes.

Back to Congressman Culberson’s inflammatory statement: "I'm the one who's going to make the final decisions, along with the president. No judge can compel me to release the money." Culberson added, "If you want federal money, follow federal law. Particularly if you're dealing with John Culberson and Donald Trump, who will not give you the money unless you follow federal law. You can take that to the bank."

As the chair of the appropriations sub-committee, Culberson does have discretion over the budget of the Department of Justice. But his statement is not a threat to amend the next budgetary plan, it is a threat to deny funds already allocated to these programs by law. It is also a threat that he would defy a direct court order, which I assume he learned in law school is not a good idea. Using the purist definition of a "sanctuary city" as one with a law prohibiting information to be shared with ICE, Congressman Culberson is right that these rare local laws may be in violation of Section 1373. But he seems to be over-interpreting what 1373 actually says – it does not say that local governments have to inform ICE, hold persons of interest, or do anything other than not restrict information by law. The implication that he will withhold JAG and other related funds if “sanctuary cities” don’t comply with the law is that this law will have a big impact on getting “bad guys” out of the United States, and thus cities choose to protect the “bad guys” or receive the funds. This is dichotomization is wrong-- cities can protect their immigrant communities, including allowing women and children to feel safe to speak to the police, by legally complying but not volunteering information or holding people without a warrant, and thus still receive the funds.

In the same Chronicle article, Culberson also called himself the "CFO of Justice." As this case develops over the coming months, with a planned appeal by the Trump administration and Attorney General Sessions, it will be very interesting to see if the courts are impressed with Mr. Culberson’s self-appointed titles. Will the "CFO of Justice" refuse to comply with a court order to release these funds as ordered by the federal budget to the very few cities who have a legal restriction on providing information to ICE? Will local law enforcement agencies interpret the “sanctuary city” term more broadly, like the Fox News definition, change their plans for the upcoming year, not knowing if "Judge and Jury" Culberson will "release" the funds?

As the chairman of the sub-committee, Mr. Culberson has responsibilities outside of solely representing our district, the 7th Congressional District of Texas. But ultimately, he is in Washington to represent his constituents. According to the census, of the 777,640 residents of TX07, 242,199 are Hispanic and 80,182 are Asian. Obviously, people counted in census are nearly all legal residents of the United States, but that does not mean that they are immune to being targeted by ICE or Customs and Border Patrol. In March, a local story from Houston received national attention when two doctors, legally in the US for 10 years, were nearly deported due to an obvious paperwork mistake. These doctors were not accused of any crime, were upstanding members of our community, and respected members of the medical profession with thousands of patients relying on their expertise and care. Despite this being an obvious mistake that would cause terrible harm to these doctors who were in the US legally for years, their US born children, and their American patients, they were only granted a reprieve in the final hours because of their attorney and the media attention to their case (link inserted). Why did this happen? The insidious nature of the Trump and Culberson anti-immigrant crusade is having many consequences, including causing Customs and Border Patrol to turn a blind eye.

The over the top statements of Career Congressman Culberson that "no judge can compel me" make this problem worse. It creates the impression that the "sanctuary city" term is much more broad that in reality, that Culberson has the ability to refuse funds to any city he sees fit, and that Culberson is above the law. It sounds like Mr. Trump’s personality may be contagious, and that Mr. Culberson may have caught a bad case. Luckily, the TX-07 voters will have the cure for our Representative on November 6, 2018.