This research memo represents the first in a series reporting results of UWCHR’s new initiative on Human Rights at Home, which we hope will help increase transparency and inform human rights advocates, the public, and our elected leaders on immigrant rights issues in our state. As part of this effort, UWCHR has requested information from Customs and Border Patrol (CBP), Immigration and Customs Enforcement (ICE), and other agencies, as well as from immigrant communities and civil rights advocates, about immigration enforcement in Washington. While we are still awaiting ICE and CBP responses to most of our requests, this memo reports findings from an initial survey of local law enforcement agencies about their collaboration with federal authorities on such matters.
Local law enforcement collaboration with ICE/CBP
In human rights terms, the conditions under which local police or county sheriffs collaborate with federal agencies charged with immigration enforcement matter greatly. They are determined by a complex set of shifting policies decided at the local, state, and federal level. In recent years, federal authorities have increasingly sought to incentivize or compel local jurisdictions to aid them in cracking down on unauthorized migrants, despite the fact that most immigration violations are a matter of civil, not criminal, law, and immigration enforcement is the responsibility of federal, not local, law enforcement1. These efforts have taken many forms, including the reactivated Secure Communities program, the use of immigration detainers, the promotion of 287(g) programs, and most recently, the threatened withholding of funds from specific jurisdictions that have declined to participate in immigration enforcement programs.
Many human rights advocates, including some leaders in law enforcement, contest this effort to involve local law enforcement in federal matters. Research shows that when local police are viewed as an extension of the immigration system, non-citizens are less likely to report crime or appear as witnesses, making all residents less safe. As a result, many localities have sought to push back on this trend by declaring cities, counties, or other areas to be “sanctuaries” or “welcoming” to immigrants; others, without adopting such titles, have adopted specific guidelines to limit local officers’ participation in immigration enforcement. Although there is no single legal definition of what counts for “sanctuary” status, the two most frequently-invoked examples include policies barring police officers from asking about immigration status, and refusing to honor ICE “detainers.” Detainers are requests to hold a person in jail beyond their release date so that ICE can investigate whether to initiate deportation proceedings against them.
UWCHR applauds these efforts to prevent law enforcement from engaging in rights violations. To examine how jurisdictions in Washington are defining the limits of local law enforcement collaboration with ICE and CBP, in 2017 UWCHR student researchers filed public records requests to 165 law enforcement agencies within the 100-mile zone where CBP claims authority to conduct stops2, seeking copies of documents including policy guidelines instructing agents on immigration matters3. Our findings suggest the need to go deeper in examining local law enforcement collaboration with CBP/ICE to ensure just outcomes.
Specifically, we are concerned that policies currently in force encourage the following problematic dynamics:
- “Don’t ask, do tell”: Even in cases where police officers or sheriffs are instructed not to ask about immigration status, local policy manuals frequently instruct them to call in CBP or ICE to the scene during regular law enforcement encounters, even in cases where no crime has occurred. Once on the scene, CBP/ICE undertake immigration inquiries. This effectively converts a local law enforcement encounter into an occasion for immigration enforcement.
- “Don’t hold, but notify”: Although most jurisdictions instruct jails not to honor ICE detainers unless accompanied by a warrant, the manuals offer inadequate guidance to on which type of warrants are sufficient to clear Fourth Amendment concerns. What’s more, policy manuals still instruct jails to notify ICE prior to an inmate’s release; while this represents an improvement over holding them without cause, such information-sharing may still facilitate the handoff of inmates to immigration authorities, including in cases where they have not been convicted of any crime.
These concerns are not abstract hypotheticals: the policy manuals we examined translate into real-life cases of rights abuse, some of which have been deemed unconstitutional by Washington courts. For example, a 2013 ruling found that Kitsap County Sheriff’s deputies had violated the rights of three Latino plaintiffs when they pulled them over ostensibly for a broken headlight, and then required them to wait until CBP officers arrived on the scene. In this case, communications between the deputies and CBP converted an ordinary traffic stop into enforcement of federal immigration law, in violation of the Washington state Constitution.
More recently, in September 2017 Northwest Immigrant Rights Project and the ACLU of Washington filed a lawsuit against the Spokane Police Department, responding to an incident in which police called CBP to the scene of a motor vehicle accident because of the accident victim’s ethnicity alone. In these cases, everyday law enforcement encounters became occasions for immigration enforcement because local law enforcement handed off Washington residents to federal immigration authorities in ways that violated their rights.
Drafting policy for profit in Washington state
Across Washington state, law enforcement policy manuals are overwhelmingly drafted by Lexipol LLC, a California-based for-profit company4. Individual agencies do introduce some modifications, and six of the 45 policies we reviewed use original language not developed by Lexipol. But for the most part, across our state the language guiding officers on what to do is adopted verbatim from Lexipol.
The company purports to provide its clients up-to-date and “state-specific” information, including the latest best practices and developments in case law. On one hand, this makes sense: immigration enforcement involves a particularly complex set federal laws and regulations, rendered contentious in the current political climate. It is also an area where recent court decisions at both the federal and state level have broad implications for policing. So if ever there were an area where local law enforcement might be well-served by expert, up-to-the-minute guidance, this might be it.
Yet our research revealed that Lexipol’s guidance sometimes misses the mark in important ways, and that updates may introduce worse, rather than better, policy language as regards immigrant rights5. Rather than assisting law enforcement agencies, these poorly-written policies may in fact expose them to significant liability if, on Lexipol’s advice, officers engage in practices that violate individual rights enshrined in the U.S. and Washington State Constitutions. According to Lexipol’s Terms and Conditions agreement, the company holds itself exempt from indemnification for any legal claims challenging its policy guidelines. This leaves local law enforcement – and taxpayers – on the hook if Lexipol’s guidance leads to rights violations.
Table: Policies in force in surveyed jurisdictions
|Current Policy Version
Policy language based on 2015 update:
|Arlington Police Department
Auburn Police Department1
Bainbridge Island Police Department
Bellingham Police Department2
Buckley Police Department
Clallam County Sheriff
Des Moines Police Department3
Enumclaw Police Department
Ferndale Police Department
Issaquah Police Department
Kelso Police Department
Kirkland Police Department
Kittitas County Sheriff
Lake Stevens Police Department
Longview Police Department4
Mason County Department
Mountlake Terrace Police Department
Normandy Park Police Department5
Oak Harbor Police Department
Othello Police Department
Pacific County Sheriff
Pierce County Sheriff6
Poulsbo Police Department
Quincy Police Department
Spokane County Sheriff
Sumner Police Department
Tumwater Police Department
Warden Police Department
Woodland Police Department
Policy language based on 2012 update:
|Aberdeen Police Department
Bellingham Police Department2
Brier Police Department
Castle Rock Police Department
Edmonds Police Department
Fife Police Department
Kalama Police Department
Orting Police Department
Port Townsend Police Department
Snoqualmie Police Department
Spokane Police Department
|Jurisdictions with original policies
See below for discussion of these policies.
|Bellevue Police Department
Ellensburg Police Department
King County Sheriff
Lewis County Sheriff
Seattle Police Department
Whatcom County Sheriff
1 Auburn Police Department does not include language proficiency as indicator of “reasonable suspicion”; instead includes language allowing ICE/CBP to authorize detention.
2 Bellingham Police Department policy includes elements of both 2015 and 2012 Lexipol versions.
3 Des Moines Police Department does not include language proficiency as indicator of “reasonable suspicion”.
4 Longview Police Department uses only the first three sections of the “Immigration Violations” policy chapter.
5 Normandy Park Police Department’s policy is marked as a draft.
6 Pierce County Sheriff includes language clarifying legality of ICE detainers/warrants.
Key concerns with Lexipol policies
1) “Don’t ask, do tell”: a traffic stop can become immigration enforcement
While a growing number of law enforcement agencies in our state purport to limit officers’ direct involvement in immigration enforcement by specifically instructing them not to ask about immigration status, such protections are rendered effectively meaningless if officers instead summon CBP/ICE to the scene to do the asking. Yet Lexipol’s guidance appears to encourage precisely these such practices.
For example, most of the law enforcement agencies surveyed in Washington have adopted policy language suggesting that individuals can be detained on “reasonable suspicion” that they entered into the US in violation of criminal law6. This matters, because unauthorized presence in the United States is a civil, not criminal, violation. While unauthorized entry, under some circumstances, constitutes a criminal offense, courts have found that mere unlawful presence is insufficient to provide probable cause of the criminal violation of illegal entry7.
Moreover, few officers in Washington would have occasion to directly witness this federal crime. By introducing the broad category of “reasonable suspicion” that a person’s prior entry to the country may have occurred in violation of criminal law, and suggesting that officers detain an individual on those grounds, Lexipol effectively encourages local police and sheriffs’ involvement in immigration enforcement.
Furthermore, Lexipol’s guidance on what might constitute this “reasonable suspicion” introduces grounds for serious concern about racial profiling. For example, in 19 of the police departments and 6 of the sheriff’s offices whose manuals we reviewed8, the list of enumerated factors includes “lack of English proficiency” and “other factors based on [officers’] training and experience,” suggesting broad leeway for interpretation and raising the likelihood of racial/ethnic profiling.
In other words, an officer could decide that because a person doesn’t speak English and may act or dress a certain way, s/he may have committed improper entry at some point in the past; according to Lexipol, this “reasonable suspicion” is then grounds for detention. And then, per the policy manuals, “The officer… may continue the detention and may request ICE or CBP to respond to the location to take custody of the detained person.” In this case, a regular law enforcement interaction which may have been initiated on discriminatory grounds translates directly into an encounter with federal authorities.
Courts have found such practices to be unconstitutional. As noted above, in Ramirez-Rangel v. Kitsap County 2103, a Washington State Superior Court found that prolonging an individual’s detention to allow the arrival of federal agencies to investigate his or her immigration status violates the Washington State Constitution. Such practices also contravene international human rights treaties signed and ratified by the United States9.
2) “Don’t hold, but notify”: Detainers, warrants, and information-sharing
Detainers are requests issued by ICE to law enforcement, asking to hold people up to 48 hours after their legal release date to allow ICE more time to initiate removal proceedings. Although the federal government has touted detainers as tools for upholding public safety, research by Syracuse University’s TRAC using data from fiscal years 2014-16 has shown that approximately fifty percent of detainers were issued for individuals who had been convicted of no crime; another twenty percent, roughly, were for individuals convicted of misdemeanors. In Miranda-Olivares v. Clackamas County 2014, a federal magistrate judge in Oregon held that holding someone on an ICE detainer violates the Fourth Amendment to the US Constitution. Following this decision, many jurisdictions in Washington ceased to honor ICE detainer requests.
Nationally, DHS Secretary Jeh Johnson, in November 2014, ordered the overhaul of the program to focus on notifications, rather than requests for ongoing detention: “Further, to address the increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment, I am directing ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released with requests for notification (i.e., requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).”
Despite this, evidence obtained by Syracuse University’s TRAC shows that in FY 2015, a majority of ICE detainers – four out of every five – continued to request the physical detention of immigrants, rather than mere notification. And while TRAC data shows that the number of detainers issued in Washington dropped dramatically following Secretary Johnson’s proposed reform, they have seen a steady uptick since then. Concerns remain, therefore, about law enforcement responses to the ongoing use of detainers in our state.
Fortunately, most law enforcement manuals in Washington reflect the growing national awareness that extending detention without cause is problematic. The most up-to-date manuals stipulate that “No individual should be held based solely on a federal immigration detainer…unless the person has been charged with a federal crime or the detainer is accompanied by a warrant, affidavit of probable cause, or removal order.” Yet this language, alone, is not specific enough to allay rights concerns flagged by the courts or reflected in international prohibitions on arbitrary detention:
For example, in response to the courts’ criticism, ICE has increasingly issued its own administrative warrants to accompany detainers. These are not the same as criminal warrants, which typically require a finding of probable cause that is reviewed and signed off by a neutral judge. ICE agents write and sign administrative warrants themselves; because they are not signed by any judge, they are insufficient to meet the Fourth Amendment concerns laid out by the courts. Lexipol’s language suggesting that “unless the detainer is accompanied by a warrant, affidavit of probable cause, or removal order” fails to make a distinction between types of warrants, and further suggests that an affidavit or removal order could substitute for the warrant. This appears to directly contravene multiple courts’ rulings.
We are aware of only three jurisdictions in Washington – Bellevue Police Department and the Pierce and King County Sheriff’s Offices – whose policies include specific language explaining which warrants qualify and which don’t. Of these, only Pierce County Sheriff includes this language in a policy based on Lexipol’s model.
Furthermore, while Lexipol policy advises law enforcement agencies not to hold inmates longer that legally required, it still instructs them to respond to detainers by notifying ICE prior to an inmate’s release – as, indeed, Secretary Johnson suggested in 2014 that detainers should be interpreted. While the practice of warning ICE in advance that an inmate it has targeted is to be released is, admittedly, better than holding that person in arbitrary detention, it still may contribute to the net effect of funnelling people – including those who are awaiting trial and have yet to be convicted of any crime – into deportation proceedings. It is not clear whether federal law can meaningfully require notification of this sort; although 8 USC §1373 requires the sharing of information about citizenship status with federal authorities, it is silent on the matter of sharing an individual’s anticipated release date. Lexipol’s guidance therefore may counsel jails to collaborate with ICE more fully than is legally required. Those concerned about promoting rights-friendly policies at the state and local level may wish to further examine these notification practices.
Original policies offer alternatives, and new concerns
Some Washington State law enforcement agencies have adopted policies regarding immigration enforcement that are not based on Lexipol’s policy guidelines. Some of these represent positive examples. For instance, Seattle Police Department’s policy states: “Being an undocumented person in this country, barring any criminal activity, is a federal civil violation not enforced by the Seattle Police Department. In Seattle, only ICE (Immigration and Customs Enforcement) and other federal agencies can enforce federal laws relating to illegal entry and residence within the United States…” SPD policy also states specifically that “Officers will not initiate police action based solely on an individual’s immigration or alien status,” a statement that precludes the detention of individuals on suspicion of prior illegal entry.
Similarly, King County Sheriff’s Office’s General Orders include similar language barring involvement in immigration enforcement, and also include strong language on ICE detainer requests and warrants: “…detainers and ICE warrants are typically not based on probable cause. They are not signed by a neutral judge or magistrate, but are signed by almost anyone authorized within ICE. They are not reviewed by any court and cannot be served by local law enforcement.” King County also has an ordinance in place that bars honoring ICE detainers unless they are accompanied by a judicial warrant; this provides a positive example of ways city and county councils can support rights-friendly policies.
However, other independent policies raise civil rights concerns, such as:
- Whatcom County Sheriff’s Office, for example, generally restricts immigration enforcement activities, but with broad exceptions based on specific authorizations by the County Sheriff. One area of concern, however, is Whatcom County Sheriff’s policy allowing collaboration with CBP employees for language interpretation. While the manual prohibits officers from requesting interpretation assistance from CBP, it does not prohibit them from accepting it if offered in certain situations. UWCHR previously highlighted this practice in our 2012 report, “The Growing Crisis on the Northern Border“. We found that Border Patrol agents requested to act as interpreters routinely asked for information about immigration status, sometimes leading to detention and deportation following incidents such as routine traffic stops. Such interpretation practices also raised concerns of racial and ethnic profiling.
- The Ellensburg Police Department’s policy, adopted in 2011, is framed around ICE’s controversial Secure Communities program, which was suspended from November 2014 – January 2017: “It is therefore, the policy of the Ellensburg Police Department, to participate with the Kittitas County Sheriff’s Office in the Secure Communities Initiative. This program is administered by the Department of Homeland Security and Immigration and Customs Enforcement (ICE) with the express purpose of identifying and removing criminal aliens from our community.” It is unclear whether this policy remained in force during the period of suspension of Secure Communities. The Ellensburg Police Department policy permits arrest or detention of individuals for the sole purpose of investigating their immigration status if the detention is in conjunction with an ICE operation.
- Lewis County Sheriff’s policy chapter for “Foreign Nationals,” adopted in 1998 and revised in 2010, includes a section regarding “Illegal Aliens – General Procedures”. While the policy asserts that, “Deputies have no lawful authority to enforce immigration laws”, it also includes language mandating notification of ICE in several circumstances. These include: “Discovery of any violations of the federal immigration laws;” “location of a subject believed to be illegally in the United States;” and “lawfully detaining an individual suspected in violation of state law or county ordinance and he/she is suspected of being an illegal alien.” These provisions are particularly troubling since officers lack authority to enforce civil immigration laws and since unlawful presence is not a crime.
- Bellevue Police Department policy restricts its officers from inquiring about immigration status, and instructs members not to act on civil ICE detainers or warrants; however, the policy also recommends ICE notification upon arrest of a person who an officer “believes is an illegal alien.” The policy also includes a recommendation that may result in prolongation of detention for purposes of investigating immigration status, which may be in violation of the Washington state constitution, as outlined above: “For suspects held in custody, officers should recommend to the jail not to release the person from custody until federal authorities are formally notified of the pending charges.”
Recommendations and next steps
Official policies shape the training of officers and signal to the community where law enforcement priorities lie. Particularly at a time of heightened concern about the civil rights of immigrants and people of color in our state, local law enforcement agencies should review the instruction they provide their officers to ensure it upholds the values and practices of our constitutional democracy as well as international human rights norms.
As part of this review, law enforcement agencies and the communities they serve may wish to ask whether continuing to pay for Lexipol’s guidance serves their best interests. As this research illustrates, Lexipol’s policy manuals fail to account not only for recent decisions by Washington courts, but for policy determinations made by our elected officials. For example, although Washington has elected not to participate in the 287(g) program that deputizes local law enforcement with the enforcement of federal immigration law, the policy manuals make repeated reference to consultation with 287(g) officers. No 287(g) officers exist in Washington, calling into question how sensitive Lexipol’s guidance is to the particularities of our state.
What’s more, Lexipol’s guidance doesn’t come cheap: in the tiny jurisdiction of Orting, in Pierce County, the Orting Police Department paid Lexipol more than $18,340 from 2012-2016, and Longview Police Department reported $48,350 in payments to Lexipol from 2006-2017. If local agencies were instead to pool resources and request guidance from Washington state’s Attorney General, for example, they might obtain better results for the residents of our state – while at the same time reducing their exposure to liability from potential lawsuits.
Furthermore, cities, counties, and organizations concerned about immigrant rights may wish to examine law enforcement collaboration with immigration enforcement on a deeper level. While barring police officers from asking about immigration status, and preventing jails from holding people beyond the period legally required, are important ways to resist the encroachment of federal immigration enforcement mandates on the rights of Washingtonians, they are not enough if local law enforcement shares information – including real-time information about the location and status of individuals who have not been convicted of any crime – with federal officers. We need further data, and deeper discussion, to understand the ways in which Washington law enforcement contributes to the immigration enforcement system, and to devise policies that uphold the rights of all people in the Evergreen State.
1 The only exception to this is in cases where local law enforcement has entered into a 287(g) partnership with ICE. Such agreements enable local law enforcement to enforce federal law in matters relating to immigration. No such agreements currently exist in Washington state.
2 The Fourth Amendment to the US Constitution bars the government from conducting arbitrary stops and searches; these protections are relaxed at borders to allow customs agents to conduct searches of persons seeking to enter the country. Under federal regulations, Customs and Border Protection claims the authority to conduct warrantless searches, and to detain and interrogate people, at any point in the United States within a one hundred mile radius of a border or point of entry – a zone that covers the majority of Washington state.
3 We submitted requests for to 165 agencies: 131 city or town police departments, 26 county sheriffs, and 8 state agencies. Of these, 71 responded with documents pursuant to our request; 65 claimed to have no responsive documents in their possession; and 29 failed to respond at all, despite attempts by our researchers to contact them by phone, email, and fax. In some cases, we were able to locate copies of these agencies’ policy manuals on their websites.
4 Lexipol’s policy guidelines include two sections touching on immigration issues: “Arrest or Detention of Foreign Nationals” and “Immigration Violations”. The policy for “Arrest or Detention of Foreign Nationals” largely deals with technical details of international law regarding claims of diplomatic or consular immunity (see Kirkland Police Department’s 2012 and 2015 versions of this policy for representative language). While this policy may have bearing on human and civil rights issues, we have focused this analysis on “Immigration Violations” policies, which relate more directly to immigration enforcement and collaboration with ICE.
5 The specific versions of Lexipol language in force vary from jurisdiction to jurisdiction. Some are using language provided by Lexipol in 2012; others incorporate a more recent update from 2015. In 2016, the Spokane Police Department adopted language from Lexipol’s 2012 version; the Spokane County Sheriff, by contrast, adopted language in 2017 based on the 2015 version. Some individual jurisdictions also modify Lexipol’s language, at times making it more human rights-sensitive, other times introducing new rights concerns. Kirkland Police Department has released both its current policy, updated and adopted in 2015, and its previous policy, adopted in 2012; comparison of these documents provides a overview of changes in Lexipol’s language between the two versions.
6 The language reads, “An officer may detain an individual when there are facts supporting a reasonable suspicion that the individual entered into the US in violation of a federal criminal law.”
8 These jurisdictions included the police departments of Arlington, Bainbridge Island, Bellingham, Buckley, Enumclaw, Ferndale, Issaquah, Kelso, Kirkland, Lake Stevens, Mountlake Terrace, Normandy Park, Oak Harbor, Othello, Poulsbo, Quincy, Sumner, Tumwater, Warden, and Woodland; and the sheriffs of Clallam, Kittitas, Mason, Pacific, Pierce, and Spokane counties.
9 See, for example, the International Covenant on Civil and Political Rights’ Article 9, which prohibits arbitrary detention.