Baker, Warren not far apart on ICE detainers

Despite Newton mayor's rhetoric, ordinance similar to governor's bill


NEWTON MAYOR SETTI WARREN unleashed a blistering attack on Gov. Charlie Baker this week in response to the governor’s filing of legislation that would allow police, in some cases, to detain someone already in custody at the request of federal immigration authorities.

He accused the Republican governor of making Massachusetts police part of President Trump’s “deportation force,” and surmised that the the bill was a political move to appease the conservative base of his party that has, more often than not, looked upon Baker with unease.

But despite the rhetoric, Warren, a Democratic candidate for governor, signed off this past February on a substantially similar policy in Newton at the height of the backlash against Trump for a proposed travel ban and threats to hold back federal funding from so-called “sanctuary cities.”

And he’s not alone. Many cities reluctant to work with Immigration and Customs Enforcement to deport otherwise law-abiding immigrants, including Somerville, have policies that allow for cooperation with ICE detainer requests in certain cases involving people with violent criminal pasts.

The latest dust-up, thrust to the forefront by a Supreme Judicial Court ruling that found police had no legal standing in Massachusetts to honor any immigration detainer requests, highlights how easily the line between politics and policy can blur when it comes to immigration.

The ACLU of Massachusetts has raised constitutional concerns with Baker’s proposal, but acknowledged that in practice the governor’s bill and Newton’s city ordinance were not far apart in their intent.

“I think they are similar and the whole idea of creating exceptions to the rule based on prior criminal records is a notion that’s out there and many communities have adopted that strategy,” ACLU attorney Laura Rótolo said.

The “Welcoming City” ordinance signed by Warren in February made clear that Newton police were not to investigate or detain anyone based solely on the possibility that they may be in the country illegally and a candidate for deportation.

But like Baker’s bill, the city directive carved out a number of exceptions for cases where the individuals sought by ICE had “an outstanding criminal warrant, has a prior conviction for a serious violent felony, is being investigated for terrorism, or if there is a law enforcement or public safety purpose to do so that is not related to the enforcement of civil immigration law…”

Baker’s bill, which was filed Tuesday in response to the SJC decision, seeks to reinstate authority for state and local police, if they choose, to honor ICE detainer requests in limited circumstances. The governor’s proposal would allow law enforcement to hold an individual already in custody, but due to be released, for up to 12 hours at the written request of ICE if that person has engaged in or is suspected of terrorism, has been convicted of a crime involving a street gang, or has been convicted of a non-immigration related felony or a state crime such as domestic violence, sexual abuse or human trafficking.

The proposed policy, according to Baker aides, was based substantially on former president Obama’s Priority Enforcement Program at ICE, and does not authorize police to investigate or make arrests solely on the belief that someone might be in the country illegally.

Despite the similarities, Warren and other critics chose to link Baker’s proposal to the Trump administration’s amped-up deportation efforts. The mayor even mentioned the controversial detention of MIT custodian Francisco Rodriguez, who Baker has suggested should not be a target for deportation.

Warren’s campaign adamantly disputes the notion that the two policies are similar, but deferred all questions about how the implementation of Newton’s ordinance differed from what might happen under Baker’s bill to the city’s legal department.

Warren’s campaign did not make the candidate available to discuss the policy differences after first being contacted Tuesday, and would not say whether the mayor would support eliminating the exemptions for violent criminals in his city’s policy following the SJC decision.

Kevin Franck, the Warren campaign’s spokesman, said the similarities amount to “smoke and not fire,” and argued that the policies “came out of different environments and in completely different contexts.” While Newton officials sought to affirm their support for immigrant communities and put limits on cooperation with ICE in February, Baker’s bill seeks to make cooperation possible in the wake of the SJC’s Lunn v. Commonwealth decision, he said.

Franck also contended that some communities could use the new authority under Baker’s bill to blindly comply with ICE requests.

“The Welcoming City ordinance was designed to make the community in Newton feel safer and that they could go to the police and police could do their jobs. Gov. Baker’s bill is something that’s going to make people go into the shadows and live in even more fear than they already do under President Trump,” Franck said.

The Newton law department noted that Baker’s bill would allow police to hold someone if they have been sentenced to 180 days or more in jail or prison for a past offense, which could include crimes not covered in the city’s ordinance, such as multiple drunk driving offenses.

A City Hall attorney also raised due process concerns with a section of Baker’s bill that would allow the court to authorize someone’s detention beyond 12 hours through a proceeding to which the detainee would have no right to attend, either in person or by counsel.

Citing the SJC’s decision that equated holding someone solely on a detainer request to an arrest, Rotolo, the ACLU official, said she did not believe detentions under Baker’s bill or the Newton ordinance would pass legal muster.

The civil rights attorney pointed out one major difference between the governor’s bill and Newton’s policy – a clause at the end of the list of exemptions to the city’s no-cooperation policy that states any arrests or detentions must be consistent with the Fourth Amendment of the Constitution and Article XIV of the state constitution.

“I think that catch-all at the end is what’s really different from the Baker bill, which doesn’t talk about the constitutional requirements at all,” she said.

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Matt Murphy

State House News Service
Ironically, Rótolo said she also believes Newton’s decision to include that clause in its own policy would make any attempt by Newton police to honor an ICE detainer, even if it met the narrow criteria for being a public safety threat, unenforceable.

“I don’t think you could hold anyone by putting that language at the end, but I don’t know in practice how Newton has been carrying this out,” Rotolo said.