Mayor and Council

   For the meeting on:

  February 27, 2017
   Department:   City Manager
   Responsible staff:  Robert DiSpirito, City Manager
  phone: (240) 314 - 8102

Introduction – Policy/Resolution on the Role of the Rockville Police Department in the Enforcement of Federal Immigration Laws; or Ordinance to amend Chapter 11 of the Rockville City Code entitled "Human Rights" so as to add a new Section 11-3 entitled "Fostering Community Trust".

The Mayor and Council discuss this item.

Change in Law or Policy
Councilmember Palakovich Carr has proposed that the Mayor and Council consider adopting a policy/resolution/ordinance to expressly set forth the role of the Rockville Police Department in the enforcement of Federal immigration laws.

Councilmember Palakovich Carr requested that this Agenda Item be set for the February 27, 2017 meeting. Councilmember Palakovich Carr is considering introducing a policy/ordinance/resolution that would clarify the Rockville Police Department’s role in immigration enforcement and also to ensure that there is trust between the City and its residents, regardless of immigration status. A copy of Councilmember Palakovich Carr’s proposed ordinance, which addresses all City employees, officers, and officials, is included as Attachment A.

To frame the context of this Agenda Item, certain questions were posed to staff. This discussion addresses the substance of the questions.

What is a Sanctuary City?
To Staff’s knowledge, the federal government has not yet expressly designated any jurisdiction a “sanctuary jurisdiction.”

The term “sanctuary city” or “sanctuary” does not have a legal definition; however, the terms are generally used to refer to cities or municipalities that refuse to cooperate with federal immigration authorities and/or enforce federal immigration laws. If a city or municipality has adopted an ordinance, official written policy, or unwritten policy with such restrictions, the jurisdiction is often referred to as a “sanctuary city” by the general public. For example, the San Francisco City Code explicitly prohibits any department, agency, commission, officer, or employee of the City to use any City funds or resources to assist in the enforcement of federal immigration law. The Milwaukee County Board of Supervisors (Wisconsin), on the other hand, adopted a policy via a resolution which indicated the limited circumstances in which the County would comply with Immigration and Customs Enforcement (“ICE”) detainers. While neither jurisdiction has been officially designated as a “sanctuary city” by the federal government, both jurisdictions have been referred to as sanctuary cities in various media reports.

The Executive Order issued by President Trump on January 25, 2017 entitled “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”) provides a framework on how federal authorities will deem a city or municipality a “sanctuary city” and is included as Attachment B. The Executive Order states that “[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” The Executive Order goes on to state that “the Attorney General and Secretary [of Homeland Security], in their full discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” The Secretary of Homeland Security “has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.”

While the Executive Order appears to provide the Secretary of Homeland Security with broad authority to designate a city as a sanctuary city, the designation must be premised on whether there is willful refusal to comply with 8 U.S.C. 1373 by the city or municipality. At this time, there has been no indication of how the Attorney General or Secretary of Homeland Security will apply the Executive Order.

The Executive Order does not differ from current federal immigration law, as an Executive Order cannot create new law. The President is responsible for implementing and enforcing laws enacted by Congress, so implementation and enforcement of laws can differ from President-to-President, but a President cannot create new law.

It is also worth noting that there have been at least four cities that have preemptively challenged the Executive Order as unconstitutional on various grounds.

What Does Federal Law Require with Respect to Immigration Enforcement?
Federal law does not place any affirmative obligations on a local city or municipality with respect to civil immigration enforcement. Under 8 U.S.C. 1373, a local government is prohibited from restricting, in any way, an official or employee “from sending to, or receiving from, [ICE] information regarding the citizenship of immigration status, lawful or unlawful, of any individual.” Federal law does permit a local jurisdiction to enter into an agreement with ICE that would authorize local police officers to carry out certain immigration enforcement functions. However, prior to carrying out any immigration enforcement function, a local police officer would be required to receive “adequate training regarding the enforcement of relevant Federal immigration laws.”

It should be noted that the Executive Order required DHS to reinstitute the federal program known as “Secure Communities.” Under the Secure Communities Program, when any individual, regardless of the individual’s sex, race, immigration, or any other status, is arrested and booked by a local law enforcement official for a criminal violation and his or her fingerprints are submitted to the FBI for a criminal history and warrants check, the FBI automatically shares the information with ICE. ICE then determines if any immigration enforcement is required. While the Secure Communities Program does not impose any additional requirements on local governments or police departments, certain information regarding an arrested individual is provided by the FBI to ICE as a result of local police submitting information to the FBI during normal police work.

What is Montgomery County’s Policy?
The Montgomery County Council has adopted two resolutions associated with building community safety and trust among residents and County law enforcement agencies. On May 3, 2011, the County Council adopted Resolution 17-108 “Promoting Community Safety and Trust among Residents and the County’s Law Enforcement Agencies.” The resolution (Attachment C) was adopted in response to the federal Secure Communities Program. The Secure Communities Program was described as improving public safety by allowing it to better identify, detain and ultimately remove dangerous criminal aliens. However, the May 2011 resolution notes the County Council’s concern that ICE data showed that 26% of those deported nationwide under Secure Communities between 2008 and 2011 were non-criminals, and in some jurisdictions, more than 75% of deportations had been of non-criminals. Based on that information, the County Council was concerned that “the Secure Communities [P]rogram, as currently administered, [would] create division in our community, promote a culture of fear and dismantle the trust that our police officers have worked to establish in many immigrant communities throughout the County.” The adopted resolution expressly states that the Council “values the trust and confidence of all its residents and encourages public safety officials to work closely with ICE to ensure that the Secure Communities [P]rogram was implemented consistent with its stated purpose and goals.”

The subject of the subsequent County Resolution 18-673 (Attachment D), adopted on November 15, 2016, is “Reaffirming Community Safety and Trust and Denouncing Anti-Immigrant Activity, Racial Bias and Discrimination, Anti-Semitism, Islamophobia, Hate Speech, Hate Crimes, and Harassment in Montgomery County.” The resolution notes the value of the County’s diversity and that “all our residents should be free to go about their daily life without fear of hate speech, hate crimes, harassment, or deportation.” The Background also states “The Council is committed to ensuring that activity at the federal level will not impact our democratic values or the progress made in our community to protect individual freedoms. Federal authorities must proceed with great caution and respect for the values of our County and the requirements of the Constitution.”

One of the conclusions of Resolution 18-673 is that “Montgomery County believes that no deportations should take place without insuring that the person to be deported received adequate representation and due process of law under the Constitution. The Montgomery County Police Department will play no role in enforcing federal immigration law. County residents should never be afraid to seek help from our public safety officers.”

The latest action on this topic is a Joint Statement by the County Executive and County Council dated January 30, 2017 (Attachment E.) Key parts of the statement include:

We greatly regret the anxiety that has been stoked among many in our community as a result of the President’s Executive Orders. We issue this statement to assure all of our residents that those orders will not change the way that County police officers or County workers interact with the public and will not impact how we provide social services.

It is longstanding County policy that County police do not enforce federal immigration law. Neither will they inquire about immigration status when individuals are stopped nor target individuals based on their ethnicity, race, or religious beliefs.

Your County leaders stand ready to take the steps necessary to defend our values and maintain the integrity of our community. Executive Orders are not self-executing. They require additional actions by federal agencies to be implemented. In addition, executive orders are subject to public scrutiny and legal challenges.

Montgomery County remains steadfast in its commitment to fairness, justice, and equal treatment under the law. We believe that no deportations should take place without ensuring that individuals to be deported receive adequate representation and due process of law under the Constitution. Regardless of immigration status, we will uphold the Fourth Amendment rights of our residents.

County Resolution 17-108, County Resolution 18-673, as well as the joint statement do not contain the term “sanctuary community.”

If Montgomery County were to be designated as a “sanctuary jurisdiction” under the Executive Order, the effect on the City is not fully known.

Does the Rockville City Police Department Currently Have a Policy on How the Police Department Interacts with the Community in Connection with Federal Immigration Laws?
The Rockville City Police Department’s goal is to have the trust of all members of the City’s diverse community. That includes ensuring all community members feel comfortable reporting crimes or cooperating as witnesses.

The Rockville City Police Department (“RCPD”) does not have a written policy that encompasses how officers interact with the community in connection to Federal immigration laws. RCPD General Order #4-31, titled Foreign Nationals and Consular Access and Notification, is the only formal policy related to foreign nationals, who are defined as persons that are not U.S. citizens. General Order #4-31 (Attachment F) addresses timely notifications to consular officials when foreign nationals have been arrested, detained or die within the City of Rockville, and defines steps to follow in each situation. A foreign national's country is assumed to be the country that issued a person's passport or other travel document. It does not address steps to be taken when an individual who is arrested or detained does not have a valid passport or other travel documentation.

In the absence of a more comprehensive policy or General Order, RCPD officers are guided by policy/guidelines established by the Montgomery County Police Department, and Federal and State case law. The Montgomery County Police Department’s policy and guidelines are defined in Function Code Number: 520 (“FC No. 520”) (Attachment G). This County Police policy addresses Foreign Nationals and Consular Access and Notification, as well as other instances of police officer interaction with foreign nationals and immigrants.

An overarching aspect of the policy, which the Rockville Police Department has also adopted in practice, is that “it is the policy of the department to provide service to all persons and to exercise its duties in conformance with all applicable laws, regardless of citizenship status, nationality, or racial/ethnic background.” Other notable items in the County policy that RCPD also apply in practice include:

Indiscriminate questioning of foreign nationals about their citizenship status (possession of their “green card”) without a reasonable basis for suspicion of state/local traffic or criminal charges is unconstitutional according to Supreme Court decisions.

Officers have no statutory authority to enforce violations of federal immigration laws. If any foreign national is arrested, the arrest must be based on a confirmed warrant or on state/local traffic or criminal charges.

If an individual who is stopped for a traffic violation is not wanted for other charges and has a valid permit, the individual should be treated the same as any other violator and not be subjected to arrest or further questioning because of nationality.

Generally, officers do not have authority to confiscate Resident Alien Cards (a.k.a. “green cards”) or Employment Authorization Cards, unless the officer has probable cause to believe that immigration documents are altered or counterfeit with fraudulent intent.

Officers are permitted to assist ICE agents when officers have been assigned to a task force or a joint criminal investigation involving ICE agents when the primary focus of the task force or investigation is not federal immigration violations. Officers may also assist with any federal warrant service in order to maintain safety in exigent circumstances.

Specific arrest procedures to be followed when a foreign national is physically arrested are defined in Montgomery County Police FC No. 520 (Attachment G, page 2). The procedures are summarized below. The RCPD General Order #4-31 addresses the notification step described in item 1 below. The General Order does not address the arrest procedures in item 2, however the department follows them in practice.

1. Promptly inform the foreign national of the right to have their government notified of arrest/detention – If the foreign national requests notice or if the country requires notice, it is to be conducted without delay by informing the nearest consulate or embassy.

2. For 28 specific offenses, the arresting officer will notify Immigration and Customs Enforcement (ICE) by telephone as soon as possible after the arrest – A list of the 28 offenses requiring notification to ICE is found on page 3 of FC No. 520. They include 1st degree child abuse, murder, rape, robbery, carjacking, kidnapping, handgun violations, and other serious crimes. The officer provides ICE the full name, date/place of birth, when/where entered the US (if known), charges or reason for the arrest, and registered alien file number.

Local law enforcement agencies, including those in Montgomery County, submit all arrest data, including fingerprints, to the FBI to check for criminal history records. Under the ICE Secure Communities Program, all fingerprints submitted to the FBI are also checked against ICE records for verification of an individual’s immigration status.

According to the RCPD, following the arrest and processing of an individual for any of the 28 specified offenses and notification of ICE by telephone, RCPD officers turn the individual over to the Montgomery County Department of Corrections (“MCDC”). MCDC will honor ICE criminal detainers and ICE civil detainers consistent with the guidelines established by the Maryland Attorney General. The Detention Center will notify ICE of the release date of someone in jail for criminal offenses committed in Montgomery County, including the City of Rockville, so that ICE can pick them up on the federal charges. It is Staff’s understanding that if ICE does not arrive by the time the defendant is ready to be released based on the local charges, the County will not detain the person longer for ICE to arrive solely on an ICE detainer.

What is the Budget Impact if the City Was to Be Designated as a “Sanctuary City”?
If the City were to be designated a “sanctuary city” by the Secretary for Homeland Security, the budget impact is not fully known. With that being said, the City receives federal grant funds directly from federal agencies, through the State of Maryland and through Montgomery County, for items in both the operating and CIP budgets. The general mechanics for federal funding via grants is that the City submits an application, is approved, signs contractual documents, and is reimbursed based on actual spending.

One area of federal funding that differs from the traditional grant process relates to FEMA
reimbursements. The City has received, on application, reimbursements from FEMA when a natural disaster has been declared. In this case, costs are incurred prior to knowing whether the City will be reimbursed. Staff is unsure if FEMA reimbursements will be impacted in the future under the new federal administration.

A summary of historical federal grants received by the City and a list of open/current grant opportunities that have yet to be reimbursed is provided in Attachment H. The attachment shows that as of February 17, 2017, the City has $5,764,917 in approved federal grants. Of these grants, the City has already spent $798,449, which leaves a balance of $4,966,468.

What Is the Status of Sanctuary City State Legislation?
Two anti-sanctuary city bills and one sanctuary city bill have been introduced during the current General Assembly session.

House Bill 598, one of the anti-sanctuary city bills, would prohibit a local government from restricting “its officials, personnel, or agents from requesting, obtaining, sending, receiving, exchanging, or maintaining information regarding the immigration status of an individual.” The bill would also require local governments to “fully comply with and support the enforcement of federal law prohibiting the entry into or presence or residence in the United States of illegal aliens in violation of federal immigration law.” A copy of House Bill 598 is included as Attachment I.

House Bill 1074, the other anti-sanctuary city bill, would create standing for “a citizen of the Unites States who is a resident of the State” to file suit against “an elected official who creates or maintains a sanctuary program in violation of the Federal Immigration and Nationality Act for an injunction against the sanctuary program.” The bill does not define what a “sanctuary program” is. A copy of House Bill 1074 is included as Attachment J.

The third bill, House Bill 1362, entitled the Maryland Law Enforcement and Governmental Trust Act, states that the legislation’s intent is to clarify the parameters of local participation in federal immigration enforcement efforts. The bill sets forth certain things that a government agent is prohibited from engaging in with respect to immigration enforcement; including, but not limited to, using public funds, facilities, property, equipment, or personnel to stop, investigate, detain, detect, report, or arrest a person; respond to a hold, notification, or transfer request from federal immigration authorities; make an arrest based on a civil immigration warrant; and support or assist in civil immigration enforcement operations. The bill would also prohibit law enforcement officials from stopping, arresting, searching, or detaining an individual to investigate a suspected immigration violation or inquire about immigration or citizenship status. A copy of House Bill 1362 is included as Attachment K.

What is the Status of Howard County’s proposed Sanctuary County Legislation?
On February 6, 2017, the Howard County Council, by a vote of 3-2, voted in favor of Council Bill No. 9-2017 which would have prohibited County employees from engaging in certain conduct related to federal immigration enforcement. However, the County Executive vetoed the bill on February 9, 2017. While the Howard County Council can override the veto by the affirmative vote of four members, it is unknown whether the legislation will be brought back before the Council for a vote to override the veto.

According to newspaper articles, the intent of the bill was to codify existing policies of Howard County. If enacted, the bill would have prohibited Howard County employees from (i) engaging in immigration enforcement; (ii) inquiring about the citizenship or immigration status of any person; (iii) discriminating against any person on the basis of citizenship or immigration status in the performance of the employee’s duties; and (iv) disclosing citizenship or immigration status of a person, except in limited circumstances. After the bill’s initial introduction, one of the preamble clauses, which stated that the Howard County Council declared itself a “sanctuary county,” was deleted from the bill by a vote of 4-1.

The County Executive ultimately vetoed the bill and was quoted as saying: “The bill offers a false sense of security to undocumented immigrants, compromises public safety efforts and puts us at risk for losing critical federal funding.”

What is the Difference in Rockville Between an Ordinance, Resolution, and Policy?
An ordinance is a local law that typically regulates persons or property. It is an official legislative act of the Mayor and Council. Amendments to the City Code and the City’s annual budget are examples of actions taken by the Mayor and Council through the adoption of an ordinance. The City Charter specifies the procedures for how an ordinance must be introduced and acted upon in order to become law. Ordinances adopted by the Mayor and Council are given numbers and are copied into the official ordinance books of the City. The ordinance books are maintained as part of the official records of the City.

A resolution is less formal than an ordinance. It is the formal expression of the opinion or will of the Mayor and Council and may provide for the disposition of a particular item of business. The process to adopt a resolution is not governed by the City Charter or Code, but is placed on the Mayor and Council agenda as a specific action item. Resolutions adopted by the Mayor and Council are given numbers and are copied into the official resolution books of the City.

A City policy may be a written document approved by the Mayor and Council, but it is generally less formal than a resolution. Policies can be on a variety of topics and generally provide guidance for a specific administrative function in the City. A policy may be approved by resolution. There are no official records for policies approved by the Mayor and Council except as expressed in the Mayor and Council minutes of the meeting in which the policy was approved.

Unless required by State law, the decision on whether to choose an ordinance or a resolution is at the discretion of the Mayor and Council.

Mayor and Council History
This is the first time this item has been brought before the Mayor and Council.

Next Steps
The Mayor and Council scheduled a public hearing to be held on March 6, 2017, on the Role of the Rockville Police Department in the Enforcement of Federal Immigration Laws.

Attachment A - Proposed Ordinance.pdfAttachment A - Proposed Ordinance.pdfAttachment B-Executive Order.pdfAttachment B-Executive Order.pdfAttachment C - Montgomery County Resolution 17-108.pdfAttachment C - Montgomery County Resolution 17-108.pdfAttachment D - Montgomery County Resolution 18-673.pdfAttachment D - Montgomery County Resolution 18-673.pdfAttachment E - Montgomery County Immigration Joint Statement 1.30.17.pdfAttachment E - Montgomery County Immigration Joint Statement 1.30.17.pdfAttachment F - RCPD General Order 4-31 Foreign Nationals and Consular Access and Notification.pdfAttachment F - RCPD General Order 4-31 Foreign Nationals and Consular Access and Notification.pdfAttachment G - Montgomery County FC520 Dealing with Foreign Nationals (003).pdfAttachment G - Montgomery County FC520 Dealing with Foreign Nationals (003).pdfAttachment H - Federal Funding Final.pdfAttachment H - Federal Funding Final.pdfAttachment I - House Bill 598.pdfAttachment I - House Bill 598.pdfAttachment J - House Bill 1074.pdfAttachment J - House Bill 1074.pdfAttachment K - House Bill 1362.pdfAttachment K - House Bill 1362.pdf

City Manager:

Robert DiSpirito, City Manager
Approved on: 02/24/2017