I am an attorney who practices in Michigan, Indiana, and Ohio. In limited circumstances I can practice in other states with the assistance of local counsel. The purpose of this piece is to outline a possible method of challenging local officials designation of a state or city as a sanctuary for illegal immigrants.
The perfect case would be an individual who has been injured, within the last three years or less, from an illegal immigrant who had previously been arrested by local officials located in a sanctuary state or city. If you know of anyone who has been injured by an illegal immigrant within this time period, please email me firstname.lastname@example.org
What follows is a legal argument which MIGHT succeed in holding local officials accountable for designating a city or state a sanctuary for illegal immigrants. I emphasize the word might, because to my knowledge, the below argument has never been made.
Attorney General Jeff Sessions is currently suing California in Federal court over state officials designating the state as a sanctuary state. This effort is bound to fail. Session’s argument is, local officials MUST enforce Federal law. Thus if an illegal immigrant is found to be present, local police departments MUST notify ICE.
However, the Supreme Court has ruled numerous times that local officials cannot be forced to enforce Federal law. I agree with this ruling. I do not want police officers to be turned into agents of the Federal government.
So how do we challenge the designation of a state or city as a sanctuary for illegal immigrants?
Under the Federal civil rights act 42 USC 1983 state and local officials can be sued for monetary damages for violating a Plaintiff’s constitutional rights under color of authority. Color of authority is a fancy way of saying when the local official is acting in their official capacity. Thus, if an officer is wearing civilian clothing and punches you at a bar, he is not acting within his official capacity. But if he punches you while on duty and waring his uniform, he is.
Now, there is no constitutional right to be protected by police from danger. So how can a person frame a federal lawsuit against a local official claiming they failed to protect him from whatever injury they suffered?
Federal courts have held that the due process clause of the 5th and 14th amendment can provide grounds for a civil rights lawsuit under one of two theories:
- The special relationship doctrine; and
The state created danger doctrine.
The doctrine which concerns us here is number two. “Although the state’s failure to protect an individual against private violence does not generally violate the guarantee of due process, it can where the state action affirmatively places the plaintiff in a position of danger, that is, where state action creates or exposes an individual to a danger which he or she would not otherwise have faced.” See Kennedy V. Ridgefield.
This is the state created danger doctrine. A few case examples will be enough to illustrate how this doctrine traditionally works.
Washington troopers stopped a car at 2:30 a.m., arrested the driver for DUI, and impounded the car, leaving the passenger/wife to walk away alone in a high-crime area. She was later picked up by a man who drove her to a secluded spot and raped her. The Court of Appeals ruled that these allegations created potential liability based on state-created danger, since the police actions placed the wife at greater risk of being assaulted than she had faced before police intervention. Wood v. Ostrander.
Police were held liable for a woman’s brain damage she suffered from a fall, after they separated her from her husband, and allowed her to walk home despite being visibly drunk. Her ability to sue for violation of her constitutional right of due process was upheld on the theory that once police separated the woman from the assistance of her husband and saw how inebriated she was, their decision to release her to make her own way in the darkness increased the level of danger that she would fall and injure herself. Kniepp v. Tedder.
Officers were called to a bar to eject a drunken and belligerent man. Although the temperature outside in the Montana night was only 11 degrees with a wind-chill of minus 25, and even though the man wore only jeans and a T-shirt, officers prevented him from getting into his truck or reentering the bar. He walked away into the night and froze to death. The Court of Appeals said that police had “placed Munger in a more dangerous position than the one in which they found him,” and so could be held liable. Munger v. Glasgow.
Then we have the final case. A man and wife were driving home with their daughter when an illegal immigrant plowed into their vehicle. Their daughter died. The illegal immigrant had formerly been detained at some time by the police who knew he was present in the country illegally. Yet, they decided to let him go instead of notifying Immigration and Custom’s Enforcement (ICE).
The final fact pattern is one I made up myself. But, whether the suffered injury is a dead daughter, burglarized house, rape, or assault, couldn’t an argument be made that local officials are liable for the injury because they decided not to notify Federal authorities? Is a “state created danger” present when local officials affirmatively decide NOT to inform Federal immigration officers that they have an illegal immigrant in custody?
It should be noted that to my knowledge no court has held that local officials are liable for damages resulting from their decision to release an illegal immigrant instead of informing customs enforcement. But, it could be that no one has yet tried.
There are certainly weaknesses in this argument. For one thing, prosecutors cannot be held liable for deciding not to prosecute a suspect. The discretion to determine which cases have sufficient evidence to pursue prosecution is the job of a prosecutor.
However, unlike a case where a prosecutor fails to bring a case for a lack of evidence, when police have a confirmed illegal immigrant in their custody, there is no doubt as to the individuals guilt. Their decision not to notify Federal officials is no different than if police decided not to arrest anyone who was accused of sexual assault. For instance, could a police department make a decision not to arrest anyone for a particular crime even if they caught the individual in the act? I think the answer would be no. But, arn’t local officials doing exactly that when it comes to letting illegal immigrants go rather then turning them in?
The Federal government may not be able to force local officials to enforce Federal law. However, failing to do so MAY expose those local officials to financial liability.