by Ivan Shadis
MONTPELIER — “If Montpelier and other municipalities around Vermont want to stand up to President Trump’s deportation machine, we hope they will forego such unnecessary changes to this vital policy,” Jay Diaz, of the Vermont American Civil Liberties Union, said in light of policy changes by Montpelier which seem to undercut the city’s sanctuary resolution.
Based on recent changes it appears Montpelier has softened its policing policy in the face of federal pressure. After being named in a federal list targeting sanctuary jurisdictions, the city’s policy was revised to remove limits on communication with federal immigration authorities.
Montpelier Police Chief Anthony Facos said changes were made to bring the policy into compliance with federal law. The revised policy, implemented April 4, removes two clauses designed to protect undocumented immigrants from federal authorities when they interact with local police.
These are the removed clauses:
“[Agency members] shall not contact CBP (U.S. Customs and Border Protection) or ICE (U.S. Immigration and Customs Enforcement) for assistance on the basis of a suspect’s or arrestee’s race, ethnicity, national origin, or actual or suspected immigration status.”
“(Agency members) shall not expend public time or resources responding to ICE or CBP inquiries or communicating with ICE or CBP by providing information beyond what is available to the general public under open records laws.”
Since 2014, the department had operated under the full Fair and Impartial policing policy, a bias-free policy developed by the state and mandated in its essential elements for law enforcement statewide.
Montpelier was one of 16 state and local agencies to adopt the full policy, including optional elements.
The two clauses struck April 4 were among the optional elements.
The policy was changed just two weeks after Montpelier appeared on a federal list of jurisdictions which limit cooperation with Immigration and Customs Enforcement.
The publication of the list is one of the steps called for in President Trump’s January 25 executive order targeting sanctuary jurisdictions. That order also calls for federal funding to be withheld from jurisdictions which violate 8 U.S. Code 1373, a federal law prohibiting local and state law enforcement from withholding immigration status information from federal authorities.
Richard Gauthier, who heads the group which developed the Fair and Impartial Policing policy, identified the two clauses removed by Facos as “the most problematic sections from a legal perspective,” and likely in violation of federal law.
Diaz disagreed, saying that “The intent of these sections, when read in context and plainly in comparison to the federal law in question, shows that they do not violate federal law,” and that the government would likely be banned from punishing state and local governments with loss of funding under the law, given U.S. Supreme Court precedent. He added “If Montpelier and other municipalities around Vermont want to stand up to President Trump’s deportation machine, we hope they will forego such unnecessary changes to this vital policy.”
A guide to cities and towns on immigration enforcement put out by the State Attorney General’s office explains that the law forbids state and local government from prohibiting employees from sharing information on individuals’ citizenship and immigration status — then reads “municipalities should not adopt any policies or practices that prohibit or punish voluntary disclosure of immigration status information to federal authorities.”
Repeated requests to the Attorney General’s office for its explicit position on the legality of the clauses under 8 U.S. Code 1373, and how the guidelines should be read by the 15 state and local agencies still operating with the clauses in question, went unanswered. As of this writing it is not clear if these agencies are also changing their policies.
Montpelier Mayor John Hollar said that he supported both the city’s Sanctuary City resolution, which calls on city departments to codify policies to refuse requests for information on resident’s immigration status, and the fair and impartial policing policies, but acknowledged that changes were made to the policy to “ensure that it is fully compliant with federal law.”
When the city council adopted the Sanctuary City Resolution last November, Facos testified before them saying “It goes to the heart of Fair and Impartial Policing that we don’t become an extension of the federal government in terms of immigration law,” and called sanctuary protections important to police work. “It’s just making sure that if you’re the victim of a crime, or need services, you will come — we don’t care about your status being here, and we will take care of you as we would anyone.”
City Manager Bill Fraser and Hollar both identified the police department’s Fair and Impartial Policing as the only city policy to explicitly reflect the city’s status as a sanctuary city.
With the April revision, Montpelier thus has fewer sanctuary protections than when it declared itself a sanctuary city in November.
However, it is important to note that the diminished policing policy has retained some sanctuary protections: Police will still refuse to detain people on administrative warrants issued by U.S. Immigration and Customs Enforcement. “To the extent that the federal government may insist that Montpelier detain individuals based on administrative warrants, that is unconstitutional and will not be part of our policing standards” said Hollar.
When asked, prior to the April 4 changes, how the city was preparing for federal action against sanctuary jurisdictions, District 2 council member Anne Watson said “we’re very tuned into the potential loss of funding, particularly for the Taylor Street project, which has significant federal funds.”
Montpelier received $1,127,436.65 in 2016 federal funding and expects $8,911,883.98 in 2017.
Potential funding loss was not explicitly mentioned as a motivation for the police policy revisions by either Facos or Hollar.
On April 25, a California federal district judge, William Orrick, defanged the executive order by issuing an injunction against its enforcement mechanism, thereby quashing the threat to federal funding.
Diaz, who presaged Orrick’s ruling against the federal government, urged the city to repeal its policy change saying “(The Vermont American Civil Liberties Union) hopes Montpelier reconsiders and continues to stand up for the immigrant residents of Vermont.”