Trump order punishing 'sanctuary cities' faces hurdles in Baltimore

Attorney General review found no issue with current sanctuary policy in Baltimore.

President Donald Trump's plan to cut off federal funding to sanctuary jurisdictions will be difficult to impose on Baltimore — a city that has sought to distinguish itself, and increase its population, with immigrant-friendly policies — according to several legal analysts who have reviewed the city's procedures.

Trump signed an executive order five days after his inauguration that he said "cracks down on sanctuary cities" that try to shield some immigrants in the country illegally from deportation. Such policies have angered Republican lawmakers and others, who say they flout federal immigration law.

But the term "sanctuary city" has no legal definition, and a growing body of court precedent has left Trump with little room to force local governments to change, experts said.

Hundreds of cities and counties that have adopted or are considering measures to help undocumented immigrants are watching closely to see how the Trump administration enforces the order.

Maryland's General Assembly is debating a bill that would create statewide protections for immigrants.

The Democratic-led Howard County Council approved a measure this month to prohibit local police from enforcing federal immigration laws. County Executive Allan Kittleman, a Republican, vetoed it.

Trump's order, which played into both of those debates, has set off a flurry of legal reviews in Maryland as state and local officials assessed their policies. Those reviews — including one by the state attorney general — have so far not prompted any revisions.

Philip L. Torrey, the supervising attorney at the Harvard Immigration Project, looked at the city's policies at the request of The Baltimore Sun. "I don't see anything in the Baltimore policy that would violate statute and give the president grounds to pull funding," he said.

Christopher Lasch, a University of Denver law professor who studies immigration, agreed. "It seems fairly clear that the kinds of actions that are being taken in Maryland are not anywhere near ... violations" of the law cited in Trump's order.

Trump vowed repeatedly during his campaign to pressure sanctuary cities as president, and so his Jan. 25 executive order was not a surprise.

Its language was also familiar: The order was similar to legislation approved by the Republican-led House in 2015 in response to the death of Kathryn Steinle.

Steinle was shot to death on a San Francisco pier on July 1, 2015. The suspect, an undocumented immigrant, had been released from a local jail despite a request from federal immigration agents to hold him.

But presidents have limited authority to tell a local police department what to do, and it is Congress that generally sets the terms by which state and local governments receive federal funding. Several Republican lawmakers have picked up on the issue and are advocating for new legislation now that Trump is president.

Rep. Andy Harris has crafted a bill to yank funding from college campuses that refuse to cooperate with immigration agents.

"Anyone who says that they are not going to follow federal immigration law and then turns around and wants the federal government to pay for roads, bridges ... I just think that's pretty hypocritical," the Baltimore County Republican said.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, disagreed that the order would not have an impact on Baltimore. She noted that some of its provisions are not yet fully defined.

"It does a number of things that turn up the heat on sanctuaries," Vaughan said. "They're looking at any policy that prevents or hinders enforcement."

Baltimore, which expects to receive about $169 million in federal grant funding this fiscal year, has two policies that address undocumented immigrants directly: an executive order signed in 2012 by then-Mayor Stephanie Rawlings-Blake and a state policy that dictates procedures at the Baltimore jail.

Rawlings-Blake's order prohibited city police officers from questioning suspects about their immigration status. But most officers, even before the order, had limited authority to address immigration. Most immigration violations are civil, not criminal matters, and they are supposed to be enforced by federal, not local officers.

The Supreme Court upheld that interpretation in 2012, ruling that police may ask for immigration documents when interacting with a suspect on some other matter, such as a traffic stop, but may not arrest or detain that person for an extended period of time.

Two years later, then-Gov. Martin O'Malley decided that the state-run jail in Baltimore would no longer honor requests from Immigration and Customs Enforcement to hold immigrants beyond the point at which they would ordinarily by released. If an immigrant is jailed, the state does not hold that person longer than a non-immigrant jailed for the same crime, unless the federal government produces a warrant.

O'Malley, a Democrat, might have had political reasons to impose that policy, but he also had a practical one: Then-Maryland Attorney General Douglas F. Gansler, also a Democrat, had advised that holding an immigrant beyond his or her scheduled release without a warrant was a constitutional violation. That advice came after several federal appeals courts reached the same conclusion.

Gov. Larry Hogan, a Republican, has continued the policy.

More than 630 counties nationally — roughly 25 percent — will not hold an immigrant beyond their scheduled release without a warrant.

Though that decision is generally considered a defining characteristic of a sanctuary jurisdiction, Trump's order is silent on the point. Instead, the order focuses on a 1996 federal law intended to ensure communication between federal and local governments about residents' citizenship status.

The law bars cities from adopting any policy or ordinance to restrict city workers from exchanging information with the federal government about a resident's legal status.

"It's about communication, not about holding people or arresting people or detaining people," said Lena Graber, an attorney with the Immigrant Legal Resource Center.

Nothing in Baltimore's order or the state policy limits communication with federal agencies.

Maryland, unlike some jurisdictions, alerts U.S. Immigration and Customs Enforcement before the Baltimore jail releases a suspect in which the agency has expressed an interest. If federal agents want that immigrant, they need only to be at the jail when he or she is released.

Even if the state declined to provide that information, it is not clear it would be breaking the law.

The Steinle family sued San Francisco last year, arguing in part that the city violated the 1996 law because it declined to notify ICE when it released the immigrant accused of killing her.

A U.S. District Court in California disagreed, ruling that the law did not require such notification.

Other parts in the Steinle lawsuit are proceeding.

Despite impassioned debate on the issue nationally and locally, Immigration and Customs Enforcement made only 25 detention requests at the Baltimore jail last year, according to a spokesman with the Department of Public Safety and Correctional Services.

Spokesman Gerard Shields said the office of state Attorney General Brian E. Frosh reviewed Trump's executive order and determined that no changes were required to Maryland's procedure for handling those requests.

Shields said that assessment was communicated verbally to the department. A spokeswoman for Frosh confirmed the review, but declined to discuss its findings.

A spokesman for Baltimore Mayor Catherine Pugh declined to discuss whether the city had conducted a similar review.

Another provision of the president's executive order gives the Department of Homeland Security authority to designate any jurisdiction as a sanctuary "to the extent consistent with law."

Because there is no law on the issue, it is not clear what that means.

"That is a question we are all asking," said Graber, of the Immigrant Legal Resource Center.

A White House spokesman did not respond to a request for information.

A spokeswoman for the Department of Homeland Security said officials are "working to implement the president's executive orders," and "when we have more information to share about how sanctuary jurisdictions will be determined, we will."

During a tour of the U.S.-Mexico border this month, Homeland Security Secretary John Kelly said he had "no idea" how to define the term sanctuary city, according to news reports.

He told a San Diego official that the department would "work with you and will make no draconian moves until I fully understand what a given locale might be doing or not doing."

Democratic members of the General Assembly, meanwhile, are supporting a bill this year to curtail state and local cooperation with federal immigration authorities further.

The bill would forbid corrections officials from detaining immigrants at the request of the ICE and would bar law enforcement from providing nonpublic information about undocumented immigrants, including the timing of an immigrant's release from jail.

Without addressing that legislation directly, Hogan said his administration would comply with federal law when it came to sanctuaries.

"I do know that there's some talk here about we're going to ignore federal law, and regardless of what your position is on this issue, when you take an oath to uphold the Constitution and laws of the United States, you don't really get to pick and choose which ones," Hogan told WBAL's "C4 Show" on Friday.

Advocates say that the state can comply with federal law and continue to embrace sanctuary policies, as the Hogan administration is doing in Baltimore's jail.

"We are certain that the executive order does not speak directly to our current state and local policy," said Kim Propeack, political director at the immigrant advocacy group CASA.

"We are confident that any attempt to cut funding will be found, like so many Trump initiatives, to be illegal and unconstitutional."

john.fritze@baltsun.com

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