Enforcing nonenforcement: Countering the threat posed to sanctuary laws by the inclusion of immigration records in the national crime information center

California Law Review

Volumn 97, Issue 2, 2009, Pages 567-600

  Sullivan, Laura ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 68749108166     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (253)

1. Jeffery S. Passel, Pew Hispanic Ctr., The Size and Characteristics of the Unauthorized Migrant Population in the U.S. i (2006) available at http://pewhispanic.org/files/reports/61.pdf (reporting that an estimated 11.5 to 12 million unauthorized migrants reside in the United States and defining an illegal migrant as someone who "resides in the United States but who is not a U.S. citizen, has not been admitted for permanent residence, and is not in a set of specific authorized temporary statuses permitting longer-term residence and work"). News reports generally concur with this estimated population size. See, e.g.. Editorial, One Argument, 12 Million Holes, N.Y. Times, Jan. 18, 2008, at A20. For clarity, this comment adopts the Pew Hispanic Center's definition, but uses the more readily understood term "illegal immigrant" rather than "illegal migrant."
2. Law Enforcement Support Center Fact Sheet, http://www.ice.gov/pi/news/ factsheets/lesc.htm (last visited May 10, 2008) [hereinafter LESC Fact Sheet].
3. See, e.g., Mike Glenn, HPD Turns Over 3 to Immigration Officials, Houston Chron., Oct. 20, 2006, at B3 (reporting that a new policy in Houston requiring officers to inquire into immigration status during all encounters resulted in the detention of 229 people in the program's furst five days)
4. John Pomfret & Sonya Geis, One Sheriff Sees Immigration Answer as Simple, Wash. Post, May 20, 2006, at A03 (reporting that a new initiative in Phoenix led to the arrest of 170 illegal immigrants within three months).
5. LESC Fact Sheet, supra note 2.
6. Press Release, Fed. Bureau of Investigation, An NCIC Milestone (Mar. 23, 2002), available at http://www.fbi.gov/pressrel/pressrel02/ncic032302.htm
7. see also Immigration and Nationality Act § 276, 8 U.S.C. § 1326 (2000) (defining criminal immigration violations).
8. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime and Sovereign Power, 56 Am. U. L. Rev. 367, 369 (2006) (explaining the dramatic increase in deportations and criminal consequences for both legal and illegal immigrants convicted of crimes).
9. See Immigration and Nationality Act § 276, 8 U.S.C. § 1326 (2000).
10. John Ashcroft, U.S. Att'y Gen., Prepared Remarks on the National Security Entry-Exit Registration System (June 6, 2002), available at http://www.usdoj.gov/archive/ag/speeches/2002/060502agpreparedremarks.htm (introducing the National Security Entry-Exit Registration System and explaining that federal officers would input civil immigration records into the NCIC as part of this new enforcement measure).
11. Nat'l Immigration Law Ctr., Laws, Resolutions and Policies Instituted Across the U.S. Limiting Enforcement of Immigration Laws by State and Local Authorities (Dec. 2008), available at http://www.nilc.org/immlawpolicy/LocalLaw/ locallaw-limiting-tbl-2008-12-03.pdf (listing all locally adopted laws, resolutions and policies limiting local enforcement of immigration law) [hereinafter Sanctuary Laws Chart]. This Comment follows the National Immigration Law Center's approach and defines "sanctuary policy" as all laws, resolutions, and policies limiting local enforcement of immigration law
12. see also Ohio Jobs & Justice PAC, Sanctuary City, USA, http://www.ojjpac.org/sanctuary.asp (last visited May 20, 2008) (adopting a broader definition of "sanctuary" than the National Immigration Law Center and listing both official policies found on the Sanctuary Laws Chart as well as "informal" and unwritten policies favoring immigrants that the Ohio Jobs & Justice PAC believes are in place in some cities) [hereinafter PAC Sanctuary Laws List].
13. See Lisa M. Seghetti, Stephen R. Vina & Karma Ester, Cong. Res. Serv., Enforcing Immigration Law: The Role of State and Local Law Enforcement 26 (2006).
14. Ibid..
15. But see Orde F. Kittrie, Federalism. Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449, 1455 (2006) (discussing the effectiveness of local sanctuary laws, but without examining potential remedies).
16. For leading voices in this debate, compare Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 Fla. St. U. L. Rev. 965, 967 (2004) (arguing that local officers lack constitutional authority to enforce immigration law) [hereinafter Pham I]
17. and Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1096 (2004) (criticizing the insertion of immigration information into the NCIC as unlawful)
18. with Kris W. Köbach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 (2005) (supporting the Department of Justice's position that local enforcement officers possess inherent authority under the Constitution to make arrests for violations of federal immigration laws).
19. See The Federalist No. 42, at 285-86 (James Madison) (Jacob E. Cooke ed., 1961) (discussing the ability of states to adopt their own varied immigration policies under the Articles of Confederation and arguing that granting this level of authority to the states jeopardized the nation as a whole)
20. see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 872 (1995) (Thomas, J., dissenting) ("Before the Constitution was adopted, citizenship was controlled entirely by state law, and the different States established different criteria.").
21. U.S. Const, art. 1, § 8
22. see also William F. McDonald, State and Local Law Enforcement, Transnational Criminality, and Illegal Immigration: The Changing Boundaries of Law Enforcement 16 (July 20, 2001), available at http://wvm.ncjrs.gov/pdffilesl/ nij/grants/l88876.pdf
23. Act of Mar. 3, 1875,18 Stat. 477 § 5.
24. Act of Mar. 3, 1891, 26 Stat. 1084. Shortly thereafter, the Supreme Court explicitly recognized federal authority over immigration enforcement
25. See Ekiu v. United States, 142 U.S. 651, 658 (1892) ("In the United States this [immigration] power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war.").
26. Roger L. Abel, The Black Shields 70 (2006).
27. McDonald, supra note 15, at 16.
28. Ibid.. at 16
29. see also Robert S. Chapman & Robert F. Kane, Illegal Aliens and Enforcement: Present Practices and Proposed Legislation, 8 U.C. Davis L. Rev. 127,149 (1975) (describing historical trends in local enforcement of immigration law).
30. McDonald, supra note 15, at 23 (detailing results from a 250-person survey of law enforcement personnel, field observations, and eight conferences and working groups).
31. Stumpf, supra note 6, at 369 (explaining the dramatic increase in deportations and criminal consequences for both legal and illegal immigrants convicted of crimes).
32. McDonald, supra note 15, at 16.
33. Michelle Chernikoff Anderson & Howard Giles, Fairness and Effectiveness in Policing: The Evidence, 55 J. Comm. 872, 872-874 (2005) (book review)
34. see also Tracey L. Meares, Praying for Community Policing, 90 Calif. L. Rev. 1593,1600-01 (2002).
35. Special Order 40, Los Angeles Police Department, http://keepstuff. homestead.com/Spec40orig.html (last visited May 10, 2008).
36. Ibid..
37. Ari L. Goldman, U.S. Clerics Debating Ethics of Giving Sanctuary to Aliens, N.Y. Times, Aug. 23, 1985, at al.
38. Maria Cristina Garcia, "Dangerous Times Call for Risky Responses:" Latino Immigration and Sanctuary, 1981 - 2001, in Latino Religions and Civic Activism in the United States 159,164 (Gaston Espinosa, Virgilio Elizondo & Jesse Miranda eds., 2005).
39. Ibid..
40. Ibid.. at 169. See generally Miriam Davidson, Convictions of the Heart: Jim Corbett and the Sanctuary Movement (1988).
41. Only five sanctuary policies were adopted in the 1990s. See Sanctuary Laws Chart, supra note 9.
42. See id.
43. see also Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. Cin. L. Rev. 1373, 1381 (2006) (discussing the impact of September 11,2001 on the sanctuary movement) [hereinafter Pham 11].
44. See David A. Harris, The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America, 38 Rutgers L.J. 1, 7 (2007). ("[I]n the central law enforcement battle of our time, we see state and local police doing something curiously unusual-saying 'no, thank you' to greater police power.").
45. See Asli Ü Bali, Changes in Immigration Law and Practice after September 11: A Practioner's Perspective, 2 Cardozo Pub. L. Pol'y & Ethics J. 161, 170 (2003).
46. Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice, Office of Legal Counsel for the Att'y Gen. on Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations 2 (Apr. 3, 2002), available at http://www.aclu.org/ FilesPDFs/ACF27DA.pdf [hereinafter 2002 DOJ Memo]. Notably, the Office of Legal Counsel only released the 2002 memorandum after the American Civil Liberties Union requested it under the Freedom of Information Act. The released version of the memorandum cited herein contains a number of redactions.
47. See, e.g., Pham I, supra note 13.
48. See Sanctuary Laws Chart, supra note 9.
49. See, e.g., Immigrant Rights Commission, S.F., Cal., Resolution # IRC-090902, available at http://wvm.sfgov.org/site/immigrant-page.asp?id=4973 (expressing disapproval with the federal government's "war against terrorism" and accusing federal immigration enforcement efforts of "discrimination and terror").
50. See, e.g., H.R.J. Res. 22, 23rd Leg., 1st Sess. (Alaska 2003) (stating that state agencies may not "use state resources or institutions for the enforcement of federal immigration matters, which are the responsibility of the federal government").
51. Cities and counties that passed sanctuary policies in 2007 included Oakland, Richmond, and Santa Cruz, California; Cook County, Illinois; Detroit, Michigan; Minneapolis, Minnesota; and Albuquerque, New Mexico. Sanctuary Laws Chart, supra note 9.
52. Ibid..
53. Ibid..
54. Ibid..
55. Kittrie, supra note 12, at 1455.
56. Ibid..
57. Takoma Park, Md., City Code § 9.04 (2007)
58. see also Steve Hendrix, Council Votes to Stay an Immigrant 'Sanctuary, ' Wash. Post, Oct. 30, 2007, at B5.
59. S.F., Cal., Admin. Code § 12H.2-1 (1993). The San Francisco Administrative Code once included a "don't enforce" provision protecting all immigrants. However, the City Council voted to exclude convicted felons from the policy when political pressure threatened the viability of the city's sanctuary policy in the early 1990s. In order to maintain the sanctuary policy, immigration rights activists on the City Council were forced to compromise and create an exception for felony offenders. Telephone Interview with Sheila Chung Hagen, Immigrant Rights Administrator, City of San Francisco (Apr. 9,2008) [hereinafter Hagen Interview].
60. See supra note 9 for a discussion of the variability of sanctuary policies
61. see also FactCheck.org, The Sanctuary Spat, http://wvm.factcheck.org/the- sanctuary-spat.html (last visited May 20, 2008) (analyzing the dispute between Republican presidential primary contenders Rudolph Giuliani and Mitt Romney over the status of New York City as a sanctuary city).
62. Pub. L. No. 104-193,110 Stat. 2105 (1996).
63. Pub. L. No. 104-208, Division C, 110 Stat. 3009, 546 (1996). In addition, the Immigration Reform Act separately included a section amending the Immigration and Nationality Act to allow written agreements between local and federal authorities deputizing local enforcement officers with federal enforcement authority over immigration matters. Known as Section 287(g) authority, these written agreements usually provide for federal-level training for local enforcement officers and allow these trained officers to file immigration violation charges. See Immigration Reform Act, Pub. L. No. 104-208, §§ 1(a) 133, 110 Stat. 3009-546, 3009-563 (codified as amended in scattered sections of 8 U.S.C)
64. Kobach, supra note 13, at 196 - 199.
65. Pub. L. No. 104-193, 110 Stat. 2105 (1996) and Pub. L. No. 104-208, Division C, 110 Stat. 3009, 546 (1996).
66. The Conference Report accompanying the Welfare Reform Act states that the law intends "to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens. . . . The conferees believe that immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and that illegal aliens do not have the right to remain in the United States undetected and unapprehended." H.R. Rep. No. 104-725, at 383 (1996) (Conf Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2771.
67. City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (characterizing New York City's policy as an effort "to turn the Tenth Amendment's shield against the federal government's using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs").
68. Pham II, supra note 32, at 1376 (providing a detailed preemption analysis)
69. see also Kittrie, supra note 12.
70. Cities with "don't tell" provisions still in place include San Francisco, Chicago and Philadelphia. Even New York City has an executive order in place purportmg to restrict the ability of local officers to communicate immigration-related mformation. See Sanctuary Laws Chart, supra note 9.
71. See City of New York, 179 F.3d at 36 (suggesting that "don't tell" measures could be valid in spite of Sections 434 and 642 if a local government prohibits the dissemination of confidential information generally, and not only to specific persons or agencies).
72. Kittrie, supra note 12.
73. Colo. Rev. Stat. § 29-29-101 (2006).
74. Press Release, Minn. Off. of the Governor, Governor Pawlenty Signs Executive Order Directing Cooperation with Federal Immigration Authorities (Jan. 7, 2008), available at http://www.govemor.state.mn.us/priorities/ govemorsorders/executiveorders/PROD008599.html.
75. Ismael Estrada & Keith Oppenheim, Oklahoma Targets Illegal Immigrants with Tough New Law, CNN, Nov. 5, 2007, http://wvra.cnn.com/2007/US/ll/02/ oklahoma.immigration/.
76. th Sess. (Md. 2008) (conditioning funding to localities on willingness to enforce immigration laws)
77. A.B. 2601, 2008 Leg. (Cal. 2008) (withholding local receipt of vehicle registration funds from cities with sanctuary policies).
78. Durango, Colo., City Council Resolution No. 2004-40 (July 6, 2004)
79. see Sanctuary Laws Chart, supra note 9.
80. Kittrie, supra note 12, at 1482-84.
81. Ibid..
82. Rick Su, A Localist Reading of Local Immigration Regulations, 86 N.C. L. Rev. 1619, 1623 (2008).
83. Harris, supra note 33, at 44 (discussing success of Austin's public outreach campaign).
84. In San Francisco, the $83,000 outreach campaign included billboards and brochures in English, Spanish, Chinese, Vietnamese, and Russian. Cecilia M. Vega, City Making Clear Illegals Can Obtain Services Here, S.F. Chron., Apr. 3, 2008, at Bl.
85. See Sanctuary Laws Chart, supra note 9.
86. See Int'l Ass'n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal, and Local Law Enforcement 1, available at http://www.theiacp. org/documents/pdfs/Publications/ImmigrationEnforeementconf%2Epdf [hereinafter Int'l Ass'n of Chiefs of Police Position Paper]
87. Major Cities Chiefs, M.C.C. Immigration Committee Recommendations for Enforcement of Immigration Laws by Local Police Agencies 8 (2006), available at http;//www.houstontx.gov/police/pdfs/mcc-position.pdf (expressing concern that local enforcement of immigration laws could encourage officers to use racial profiling tactics) [hereinafter Major Cities Chiefs Position Paper].
88. See Hannah Gladstein,. Annie Lai, Jennifer Wagner, & Michael Wishnie, Migration Policy Inst., Blurring the Lines: A Profile of State and Local Police Enforcement of Immigration Law Using the National Crime Information Center Database, 2002-2004 6 (2005), available at http://www.migrationpolicy.org/pubs/ MPI-report-Blurring-the-Lines-120805.pdf (citing 8 U.S.C. § 1252c)
89. see also Major Cities Chiefs Position Paper, supra note 69.
90. See. e.g., Immigrant Rights Commission, S.F., Cal., Resolution # IRC-090902, supra note 38 (expressing disapproval with the federal government's "war against terrorism" and accusing federal immigration enforcement efforts of "discrimination and terror")
91. Hendrix, supra note 46 (describmg local support for the sanctuary policy in Takoma Park, Md. and quoting resident Jenny Hughes as saying that Takoma Park "is a sanctuary for me against what is going on in this country ... I have always been proud of the fact that our city is a place where I can feel not just physically safe but politically safe.").
92. The "states as laboratories" philosophy encourages states and cities to craft and experiment with social legislation on the local level. See, e.g.. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."). In terms of the sanctuary movement, the states as laboratories approach suggests that variables on the local level-including the size of the local pohce force and the number of immigrant residents-must be considered m policymaking. The International Association of the Chiefs of Police emphasizes the importance of local control by characterizing local law enforcement participation in immigration enforcement as "an inherently local decision that must be made by a police chief, working with their elected officials, conmiunity leaders and citizens." Int'l Ass'n of Chiefs of Police Position Paper, supra note 69, at 1.
93. See, e.g., H.R.J. Res. 22, 23rd Leg., 1st Sess. (Alaska 2003) (stating that state agencies may not "use state resources or institutions for the enforcement of federal immigration matters, which are the responsibility of the federal government").
94. Int'l Ass'n of Chiefs of Police Position Paper, supra note 69, at 5 (discussing the increasing complexity of federal immigration law and the group's position that proper enforcement would require specialized knowledge of immigration law)
95. see also Charlie LeDuff, Police Say Immigrant Policy is Hindrance, N.Y. Times, Apr. 7, 2005, at AI6 (quoting the former Los Angeles Police Commissioner Silvia Saucedo as saying, "We're stretched so thin, it's impossible to have the L.A.P.D. trained in federal procedures.").
96. Int'l Ass'n of Chiefs of Police Position Paper, supra note 69, at 4 (discussing civil lawsuits filed by U.S. citizens and legal residents mistakenly detained in a local police raid for illegal immigrants).
97. See, e.g., Pham II, supra note 32 (arguing that local officers lack the constitutional authority to enforce immigration law).
98. See, e.g., Int'l Ass'n of Chiefs of Police Position Paper, supra note 69.
99. Ibid..
100. George W. Bush, Pres. of U.S., New Temporary Worker Program: Remarks on Immigration Policy (Jan. 7, 2004), available at http://www.whitehouse.gov/news/ releases/2004/01/20040107-3.html.
101. Int'l Ass'n of Chiefs of Police Position Paper, supra note 69, at 5.
102. Ibid..
103. Some federal officials, including Senator Jeff Sessions, Republican of Alabama, and former DOJ lawyer Kris W. Kobach, have characterized the cooperation theory as a "myth" and challenged the utiUty of sanctuary policies in improving crime reporting and community safety. Jeff Sessions & Cynthia Hayden, The Growing Role for State & Local Law Enforcement in the Realm of Immigration Law, 16 Stan. L. & Pol'v Rev. 323, 338-39 (2005)
104. th Cong. 19 (2004) (testimony of Professor Kris Kobach).
105. See, e.g., Mary Ann Dutton, Leslye E. Orloff & Giselle Aguilar Hass, Characteristics of Help-Seeking Behaviors, Resources, and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications, 1 Geo. J. on Poverty L. & Pol'y 245, 292-95 (2000) (detailing the fact that abusers of illegally present Latinas often threaten to have their victims deported if they seek help)
106. Juliet V. Casey, Police Pilot Program: Hart Discourages Silence, Las Vegas Rev. J., Sept. 30, 2001, at IB (describing a police outreach program to immigrant commimities in Las Vegas wherein an officer began a workshop by asking if anyone would contact the police if their neighbor demanded $200 a week not to report the person to immigration authorities; no one in the room indicated that they would seek help from local authorities as a result of such extortion)
107. Chirac Mehta et al., Ctr. for Urban Econ. Dev., Univ. of ILL. at Chi., Workplace Safety in Atlanta's Construction Industry: Institutional Failure in Temporary Staffing Arrangements 31 (2003), available at http://www.uic.edu/ cuppa/uicued/npublications/recent/atlantareport.pdf ("[T]he undocumented immigrants surveyed explained that their lack of legal status ... makes it more risky to protest unsafe conditions or seek compensation for on-the-job injuries.")
108. Chirac Mehta et AL., Ctr. for Urban Econ. Dev., Univ. of ILL. AT Chi., Chicago's Undocumented Immigrants: An Analysis of Wages, Working Conditions, and Economic Contributions 28 (2002), available at http://www.uic.edu/cuppa/uicued/ npublications/recent/undoc-fuIi.pdf (finding that "the fear that workers might be deported if they report the conditions" prevented illegal workers from reporting unsafe working conditions to OSHA).
109. Harris, supra note 33, at 44; see also David A. Harris, Good Cops: The Case for Preventive Policing (2005).
110. Harris, supra note 33, at 44 (finding that "nearly all categories of criminal victimization dropped, and stayed lower.").
111. Ibid..
112. Ibid..
113. Rampart Independent Review Panel, A Report to the Los Angeles Board of Police Commissioners Concerning Special Order 40, at 8 (Feb. 1, 2001), available at http://lacity.org/oig/Special-Order-40-70806l-v1.pdf
114. Int'l Ass'n of Chiefs of Police Position Paper, supra note 69, at 1
115. Major Cities Chiefs Position Paper, supra note 69. The positions of such groups are not insignificant; the National Crime Information Center 2000 Operating Manual notes that "the structure and basic procedures of the NCIC System were approved by resolution of the full membership of the International Association of Chiefs of Police" in 1996. Nat'l Crime Info. Ctr., 2000 Operating Manual § 1.1, available at https://olets-info.olets.state.ok.us/ cjismanuals/pdf/ [hereinafter NCIC 2000 Operating Manual].
116. Major Cities Chiefs Position Paper, supra note 69, at 6.
117. Ibid..
118. Heather Ishimaru, San Francisco Reaffirms Immigration "Sanctuary" Status, ABC News, Apr. 20, 2007, http://abclocal.go.com/ kgo/story?section=news/local&id=5230622.
119. Eric Schmitt, Administration Split on Local Role in Terror Fight, N.Y. Times, Apr. 29, 2002, at al.
120. Tim Steller, Expansion of Foreigner Arrest Plan is Feared, Ariz. Daily Star (Tuscon, Ariz.), July 12, 2002, at al.
121. Stephen Moore, Hoover Inst., Immigration and the Rise and Decline of American Cities 29 (1997).
122. See Rick Su, The Immigrant City (Sept. 4, 2006) (unpublished article, on file with author).
123. Thomas Muller, Immigrants and the American City 304 (1993).
124. But see City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (raising refusal by local authorities to cooperate with desegregation as ordered in Brown v. Board of Education, 347 U.S. 483 (1954), as an uncomfortable analogy to New York City's sanctuary measure). The difference, significantly, between resistance to desegregation and resistance to local enforcement of immigration is that federal law does not mandate immigration enforcement by local authorities.
125. Town of Caste Rock v. Gonzales, 545 U.S. 748 (2005).
126. Ibid.. at 748.
127. Ibid..at 752.
128. Ibid..at 760.
129. Ibid.. at 760-61 (citing 1 ABA Standards for Criminal Justice 1-4.5, commentary, pp. 1-124 to 1-125 (2d ed. 1980) (footnotes omitted)).
130. See supra text accompanying notes 49-57.
131. Telephone Interview with Roy Weise, Senior Criminal Justice Info. Servs. Advisor, Fed. Bureau of Investigation (Apr. 9,2008) [hereinafter Weise Interview].
132. McDonald, supra note 15, at 2.
133. The Ctr. for Democracy & Tech., A Briefing on Public Policy Issues Affecting Civil Liberties Online (Oct. 25, 2002), http://wvw.cdt.org/ publications/pp-8.22.shtml (noting that now, however, the rap sheet and fingerprint databases are distinct: the NCIC is separate from the Integrated Automated Fingerprint Identification System, more commonly known as lAFIS. The FBI maintains both databases).
134. Information Letter from Criminal Justice Info. Ctr. Div., Fed. Bureau of Investigation (Apr. 6, 2001), available at www.doj.state.wi.us/les/law/docs/ 20010406-infoletterl.doc. The statute authorizing the NCIC was originally at 5 U.S.C. § 340. Revised and renumbered in the 1960s, 5 U.S.C. § 340 is now 28 U.S.C. § 534.
135. Sec 28 U.S.C. § 534 (2006).
136. NCIC 2000 Operating Manual, supra note 89. The categories of NCIC files are: seven property files containing records for articles, boats, guns, license plates, securities, vehicles, and vehicle and boat parts; and eleven persons files including the Convicted Sexual Offender Registry, Foreign Fugitive, Identity Theft, Immigration Violator, Missing Person, Protection Order, Supervised Release, Unidentified Person, U.S. Secret Service Protective, Violent Gang and Terrorist Organization, and Wanted Person Files.
137. th Birthday, Government Technology, Jan. 22, 2007, available at http://www.govtech.com/gt/articles/103437.
138. Weise Interview, supra note 105.
139. th Birthday, supra note 111.
140. Weise Interview, supra note 105.
141. Ibid..
142. NCIC 2000 Operating Manual, supra note 89.
143. Ibid..
144. Ibid..
145. Prepared Statement from Alice Fisher, U.S. Deputy Assistant Att'y Gen., to the Subcomm. on Tech., Terrorism, and Gov't Info of the Senate Comm. on the Judiciary (2001).
146. Wishnie, supra note 13, at 1096
147. see also Executive Memorandum from James Jay Carafano, Senior Research Fellow, The Heritage Foundation, No Need for the CLEAR ACT: Building Capacity for Immigration Counterterrorism Investigations, (Apr. 21, 2004), http://www.heritage.org/Research/HomelandSecurity/em925.cfm.
148. Gladstein et al., supra note 70.
149. See Stumpf, supra note 6, at 376 (explaining that "criminal law is poised to swallow immigration law" and that the increasing criminalization of immigration violations has "created parallel systems in which immigration law and the criminal justice system are merely nominally separate.").
150. th Cong. (2001) (Statement of James W. Ziglar, Commissioner, Immigration and Naturalization Service) (notifying Congress that the INS would enter "absconder" records into NCIC).
151. Ashcroft, supra note 8 (announcing the creation of the National Security Entrance and Exit Registration System).
152. Ibid..
153. Dan Eggen, U.S. Considers Expanding FBI Database, TechNews, Dec. 17, 2003 (discussing the possible expansion of the FBI database to include the names of noncriminal deportees and student visa violators). Despite DHS's announced plan to include records on student visa violations in the NCIC, this information has not yet been entered
154. see NCIC 2000 Operating Manual, supra note 89 (describing the contents of the NCIC Immigration Violator's File).
155. LESC Fact Sheet, supra note 2. In addition, the NCIC interface provides local enforcement officers the option to search for immigration information from DHS's vastly more inclusive database, which contains more than 90 million immigration records. Unlike immigration-related information obtained through the NCIC, however, the immigration records DHS maintains are only accessible when officers choose to enter an immigration-specific query, known as an Immigration Alien Query (IAQ). Although the immense search capability of the IAQ may present other concerns about data-sharing and privacy, IAQ searches do not challenge the sanctuary movement in the same way as NCIC searches of the Immigration Violators File because officers can easily avoid running an IAQ if they do not want to learn about immigration status or violations of immigration law. See Intelligence Sharing: Law Enforcement Support Center, The Police Chief Mag., Feb. 2005, available at http://policechiefmagazine.org/magazine/index.cfin? fuseaction=display&article-id=515&issue-id=22005 (explaining how law enforcement officers run IAQ searches).
156. Nina Bernstein, Crime Database Misused for Civil Issues, Suit Says, N.Y. Times, Dec. 17, 2003, at A34.
157. Deborah Frazier, INS Arrests in Region Up 500%, Quick Response Teams Help Swell Numbers of Detentions in Colorado, Utah, Wyoming in 2000, Rocky Mountain News (Denver, Colo.), Jan. 22, 2001, at A4.
158. NCIC 2000 Operating Manual, supra note 89.
159. Weise Interview, supra note 105 (adding that other files in the NCIC rely on local enforcement officers to enter the relevant warrant information).
160. Ibid..
161. Ibid..
162. Ibid.. See generally Klaaskids.org, Sex Offender Registration & Community Notification Internet Access, http://www.klaaskids.org/pg-legmeg2.htm (last visited May 25, 2008) (listing sex offender registration laws by state).
163. LESC Fact Sheet, note 2.
164. Ibid..
165. Ibid..
166. Press Release, Immigration and Customs Enforcement, ICE Provides Record Support to Law Enforcement Counterparts (Oct. 22, 2004), available at http://www.ice.gov/pi/news/newsreleases/articles/lescl02204.htm?searchstring= LESC.
167. LESC Fact Sheet, supra note 2.
168. Ibid..
169. Ibid..
170. Gladstein et al., supra note 70 (describing the error rate for immigration data in the NCIC). See generally Mary De Ming Fan, Reforming the Criminal Rap Sheet: Federal Timidity and the Traditional State Functions Doctrine, 33 Am. J. Crim. L. 31, 54-65 (2005) (describing general inaccuracies found in the NCIC and discussing "persistent data quality problems").
171. Gladstein et al., supra note 70, at 3.
172. Ibid..
173. Ibid.. at 29.
174. -28 C.F.R. § 16.96 (2007)
175. see also Daniel J. Solove & Chris Jay Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. Rev. 357, 379 (discussing the Privacy Act of 1974 and its impact on criminal records information).
176. Ashcroft, supra note 8.
177. Gladstein et al., supra note 70, at 3. The Migration Policy Institute determined this by studying a statistically significant sample of NCIC hits.
178. See Press Release, U.S. Dep't of State, Fact Sheet: Foreign Terrorist Organizations (Oct.11,2005), available http://www.state.gOv/s/ct/ris/fs/37191. htm.
179. Ernesto Londoño, Database is Tool in Deporting Fugitives, Wash. Post, June 13, 2007, at al.
180. Ibid..
181. Ibid..
182. Ibid..
183. Ibid..
184. See, e.g., Nina Bernstein, Challenge in Connecticut Over Immigrants' Arrest, N.Y. Times, Sept. 26, 2007, at B1 (Ecuadorian immigrant pulled over for a noisy muffler deported after an NCIC check revealed his immigration record)
185. Miriam Jordan, Return Flight: Visa Violators Swept Up in Widening Dragnet, Wall St. J., Apr. 10, 2008, at A1 (Polish immigrant received deportation order after a police officer discovered his immigration status in the process of issuing a citation for talking on a cell phone while driving)
186. Ann M. Simmons, N.O. Police Halt Immigration Arrests, L.A. Times, Feb. 9, 2007, at A14 (describing the use of traffic stops to identify illegal aliens in Louisiana).
187. Jordan, supra note 154, at A1; see also Press Release, Office of U.S. Senator Patrick Leahy's, Homeland Sec. Official Calls Vt.'s LESC "Crown Jewel" (Mar. 30, 2004), available at http://leahy.senate.gov/press/200403/ 033004b.html (quoting Michael J. Garcia, assistant secretary of the Department of Homeland Security, as saying that the LESC is "the crown jewel of our state and local cooperation efforts").
188. Takoma Park, Md., Ordinance No. 2007-58 (Oct. 29, 2007), available at http://www.takomaparkmd.gov/clerk/ordinance/2007/or200758.pdf
189. Hendrix, supra note 46.
190. National Council of La Raza v. Mukasey, 283 Fed. Appx. 848, 851 (2d Cir. 2008), (citing Bennett v. Spear, 520 U.S. 154,169 (1997)).
191. Ibid.. The plaintiffs raised claims on two grounds. First, they argued
192. Mukasey, 283 Fed. Appx. at 851.
193. Ibid..at 852.
194. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
195. Mukasey, 283 Fed. Appx. at 852.
196. See 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.5 (3d ed. 2008) (noting that an act may be the "cause in fact" of an alleged injury while nevertheless failing to satisfy the causation prong due to intervening causes).
197. See Mukasey, 283 Fed. Appx. at 852.
198. See Pub. L. No. 104-193,110 Stat, 2105 (1996)
199. Pub. L. No. 104-208, Division C, 110 Stat. 3009, 546 (1996)
200. see supra, text accompanying notes 49-57.
201. Mukasey, 283 Fed. Appx. at 851.
202. Compare this proposal, with Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 777-87 (2007) (discussing the benefits of using independent forensic laboratories to assess DNA evidence, but suggesting oversight mechanisms to ensure accuracy and information sharing).
203. COPLINK, http://www.coplink.com/ (last visited May 25, 2008).
204. Ibid..
205. Ibid..
206. Telephone Interview with Bob Fund, COPLINK Prod. Manager, Knowledge Computing Corp. (May 6,2008) [hereinafter Fund Interview].
207. Ibid..
208. Ibid..
209. Ibid..
210. Ibid..
211. Ibid..
212. See Gladstein et al., supra note 70, at 13.
213. Fund Interview, supra note 172.
214. Ibid..
215. Robert O'Harrow Jr. & Ellen Nakashima, National Dragnet is a Click Away; Authorities to Gain Fast and Expansive Access to Records, Wash. Post, Mar. 6, 2008, at al.
216. Fund Interview, supra note 172.
217. Fund Interview, supra note 172; see also Press Release, COPLINK, COPLINK Innovates with LEXS/National Information Exchange Model (NIEM) Compliance for Law Enforcement Agencies Nationwide (July 1, 2008), available at http://www.coplink.com/pr08-niem0701081.htm [hereinafter Press Release, COPLINK].
218. KC-Area Police to Share Crime Information COPLINK Program Gives Police More Access to Details, KMBC-TV 9 (Kansas City, Mo.), available at http://wvw.copIink.com/news08-kmbc0722081.htm. Federal grants, including those from the National Institute of Justice and Homeland Security Admmistration, may help to defray some of these costs. Fund Interview, supra note 172
219. see also Press Release, COPLINK, supra note 175 (discussing grants as a partial source of funding for the Missouri and Kansas contract).
220. O'Harrow & Nakashima, supra note 181, at al.
221. Law Enforcement Information Exchange, http://www.ncis.navy.mil/linx/ index.html (last visited May 25, 2008) (noting that LInX is currently available in "areas of strategic importance to the Department of the Navy").
222. Law Enforcement Information Exchange, Technical Overview, http://www.ncis.navy.mil/linx/technical.html (last visited May 25, 2008)
223. see also Mary Beth Sheridan, System Lets Agencies in Area Share Data, Wash. Post, Nov. 29,2007, at B3.
224. Law Enforcement Information Exchange, http://www.ncis.navy.mil/linx/ index.html (last visited May 25, 2008) (see map and left tool bar to explain different regions).
225. Law Enforcement Information Exchange, Steps in Creating a LInX Success, http://www.ncis.navy.mil/linx/steps.html (last visited May 25,2008).
226. Ibid..
227. See Major Cities Chiefs Position Paper, supra note 69; Wishnie, supra note 13, at 1101.
228. See generally John T. Soma, Maury M. Nichols, Stephen D. Rynerson, Lance A. Maish & Jon David Rogers, Balance of Privacy vs. Security: A Historical Perspective of the USA Patriot Act, 31 Rutgers Computer & Tech. L.J. 285, 343 (2005) ("[W]hile technology may facilitate increasingly intrusive surveillance, sufficient social condemnation can curb its use, pulling the privacy-security balance back into equilibrium.").
229. Fed. Bureau of Investigation, N-DEx Overview, http://vww.fbi.gov/hq/ cjisd/ndex/ndex-overview.htm (last visited May 25, 2008)
230. see also O'Harrow Jr. & Nakashima, supra note 181.
231. Fed. Bureau of Investigation, N-Dex Scenario Two, http://vww.fbi.gov/hq/ cjisd/ndex/scenario2.htm (last visited May 25,2008).
232. See supra, text accompanying notes 49-57
233. see also City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).
234. Town of Castle Rock, 545 U.S. at 751.
235. Nina Bernstein, Police Report Noncitizens to U.S., Official Says, N.Y. Times, Apr. 23, 2005, at B3 ("Pressed by [Councilman Kendall Stewart of Brooklyn] to say whether any law required the police to notify federal immigration authorities in database cases, [police official] Mr. Doepfner acknowledged he did not know of any, but he said, 'We believe it's prudent and it's a good law enforcement practice.'").
236. Ibid..
237. see also New York City Executive Order No. 41, City-Wide Privacy Policy and Amendment of Executive Order No. 34 Relating to City Policy Concerning Immigrant Access to City Services (Sept. 17, 2003), available at http://wvw.nyc.gov/html/imm/downloads/pdf/exe-order-41.pdf
238. Optimally, local jurisdictions should follow San Francisco's example and consider hiring someone to oversee the sanctuary policy and work with govermnent agencies to see that it is properly carried out. See Hagen Interview, supra note 47.
239. Londoño, supra note 149
240. see also New Haven, Conn. Police Dept., General Order 06-2 (2006) ("Officers shall not make arrests based on administrative warrants for arrest or removal entered by ICE into the FBI's National Crime Information Center (NCIC) database, including administrative immigration warrants for persons with outstanding removal, deportation or exclusion orders. Enforcement of the civil provisions of U.S. immigration law is the responsibility of federal immigration officials.").
241. Londoño, supra note 149.
242. Hendrix, supra note 46.
243. Rampart Independent Review Panel, supra note 88.
244. See, e.g., H.R.J. Res. 22, 23rd Leg., 1st Sess. (Alaska 2003).
245. See, e.g., San Francisco Admin. Code § 12H.2-1 (1993).
246. Nat'l Crime Info. CTR., 2000 Operating Manual: Immigration Violator File, available at https://olets-info.olets.state.ok.us/cjismanuals/pdf/Immigration- violator.htm.
247. PowerPoint Presentation: Training on General Order 06-2, New Haven (Conn.) Police Dep't (on file with author).
248. Ibid..
249. Hagen Interview, supra note 47.
250. th Cong. (2005) (amending 2003 proposal to threaten withholding federal funds from states that have laws, guidelines, or procedures that prevent local police officers from enforcing federal immigration law).
251. See Daniel Booth, Note, Federalism on Ice: State and Local Enforcement of Federal Immigration Law, 29 Harv. J.L. & Pub. Pol'y 1063 (2006).
252. Doe V. Immigration & Customs Enforcement, No. M-54 (HB), 2006 U.S. Dist. Lexis 28300 (S.D.N.Y. May 9, 2006).
253. National Council of La Raza v. Mukasey, 283 Fed. Appx. 848, 851-52 (2d Cir. 2008).