President Donald Trump has suggested, incorrectly, that states are duty-bound to provide assistance to federal immigration authorities.
, a hub for reporting, analysis, and commentary about state courts and constitutions. State Court Report is a project of the Brennan Center for Justice. Suppose your local police department decided to collaborate with a masked man who, under the guise of catching criminals, was routinely grabbing people off the street and beating them.
Would state law impose any limits on local law enforcement’s arrangement with this vigilante?In cities and states nationwide, the Trump administration has deployed thousands of federal officers, including agents from Immigration and Customs Enforcement and Customs and Border Protection. Whatever the purported benefits of this enforcement surge, its toll has been alarming. In Minneapolis, federal agentsprotesters, journalists, and bystanders alike, including local officials and religious leaders. Across the country, people caught in the immigration crackdown But the federal enforcement surge is only half the picture. Both ICE and federal Border Patrol rely on collaboration with state and local law enforcement to detain immigrants, share data and resources, and control protests. In Tennessee, for example, state highway patrol officersthe identities and locations of immigrants in state custody with federal immigration authorities. Even in so-called sanctuary jurisdictions that prohibit or discourage collaboration, state and local police havePresident Donald Trump has suggested, incorrectly, that states are duty-bound to provide this kind of assistance to federal immigration authorities. He has denounced sanctuary jurisdictions as “Amendment gives states the authority to refuse to participate in federal programs, including immigration enforcement. Just as many states have chosen not to assist in enforcement of the federal prohibition on marijuana possession—indeed, many have expressly decriminalized marijuana possession under state law—they can choose not to assist the federal government in enforcing federal immigration law. Some states or municipalities have done precisely that. But the abhorrent behavior of federal immigration agents in recent months, combined with the federal government’s apparent determination to continue that behavior, raises an additional possibility: While the U.S. ConstitutionState constitutions can go beyond the U.S. Constitution in protecting individual rights. For example, suppose an officer pulls over a vehicle because he suspects that the passengers are undocumented immigrants but claims that the reason for the stop is a broken taillight. Even if that pretextual stop is permissible under the U.S. Constitution’s Fourth Amendment, the officer’s actions might still violate a state constitutional right against unreasonable searches and seizures. Similarly, making a stop based partly on a suspect’s language, race, ethnicity, or occupation—what law professor Anil Kalhan termed a “Kavanaugh stop,” in reference to Supreme Court Justice Brett Kavanaugh’s concurring opinion in—could violate a state’s equal-protection guarantee even if federal courts deem it to pass muster under the U.S. Constitution.Federal agents are unlikely to worry about the heightened protections of state constitutional law. By virtue of the U.S. Constitution’s supremacy clause, those agents typically don’t have to follow the constitutions for the states in which they operate. State and local officers don’t have that luxury. State constitutions fully bind those officers, including when exercising state law-enforcement authority to assist federal immigration agents. At a minimum, state and local officers must not directly undertake conduct that violates the state constitution. But shouldn’t they also avoid facilitating such conduct by federal agents? That question brings us, naturally, back to Batman. Suppose the fictional Commissioner Gordon thinks vital evidence is inside a private home or is known only to a bad guy. But instead of seeking a search warrant or inviting the bad guy for questioning, he lights up the Bat-Signal—perhaps anticipating that Batman might use physical force to extract the evidence. Under what circumstances would the state constitution hold the commissioner responsible for Batman’s methods?That state constitutional question—that is, whether state actors are legally responsible for the actions of someone with whom they’ve chosen to collaborate—shouldn’t hinge on whether you think Batman’s heart is in the right place. The answer might be found in the state action doctrine. Applying that doctrine, courts have attributed third-party conduct to the state when there is a close nexus between the state and the third party.that constitutional protections extend to illegal searches by private citizens who participated in a police operation if police officers “stood silently by” while the illegal search took place. Similarly, the New Mexico Supreme Courtthat state courts should exclude evidence gathered by private security guards if those guards “routinely exceeded” the bounds of a reasonable search and “police officers knew of that practice and condoned or participated … or even failed to discourage it.”Although these “attribution” cases typically involve third-party private actors, their logic applies more forcefully when state and local officers associate with third parties who are federal agents. Federal agents are government actors, and state constitutions seek, at a minimum, to protect their residents’ rights against government infringement. Indeed, some state courts have interpreted state constitutions toStates also have strong incentives to ensure that state and local police officers do not negligently, or even willfully, undertake joint activities with federal officers that harm their own residents. Even in the absence of wrongdoing by state officials, for example, the New Mexico Supreme Courtthe exclusionary rule to evidence seized by a federal agent who violated the state constitution. The court reasoned that it had “the authority—and indeed the duty—to insulate our courts from evidence seized in contravention of our state’s constitution.” High courts inhave adopted similar rules. These decisions suggest that in deciding when to attribute federal action to state and local officers for purposes of the state action doctrine, state courts should be wary of any conduct by state and local officials that risks facilitating behavior—by anyone—that contravenes the state constitution. State officials should be just as wary. If ICE and Customs and Border Protection act without apparent regard for the rights of state residents, local police entanglement with federal immigration enforcement risks more than the erosion of trust with local communities. It may also, in effect, erode the guarantees of their state constitutions. State and local officials should therefore consider the possibility not only that the U.S. Constitution gives them a choice about whether to assist federal immigration enforcement, but that their own state constitutions might compel them to
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