After the illegal immigrant who shot and killed Kate Steinle was acquitted of murder and manslaughter charges last week, top Trump administration officials angrily denounced San Francisco and other sanctuary cities.
President Donald Trump himself called the verdict a “travesty of justice,” while Attorney General Jeff Sessions vowed to take measures that would “ensure that all jurisdictions place the safety and security of their communities above the convenience of criminal aliens.”
Those reactions raised a provocative question: Could such measures include criminal prosecutions of sanctuary city officials based on their protection of illegal immigrants?
The idea of bringing a criminal case against a government official for knowingly harboring an illegal alien is not without precedent. In 2008, federal prosecutors charged a top Customs and Border Protection official in Boston for employing an illegal immigrant as a housekeeper, even after supervisors warned the official that she was breaking immigration law.
That case did not involve prosecuting a local official from a sanctuary city who acted in direct violation of federal immigration law. But the administration could attempt such a prosecution in unusual circumstances like the Kate Steinle killing, according to Jessica Vaughan, the director of policy studies at the conservative Center for Immigration Studies.
“I think a criminal case against a sanctuary official or government is possible, although probably as a last resort, after they have exhausted other options, and when the facts of the case are particularly egregious or concerning,” she told The Daily Caller News Foundation in an email.
Vaughan pointed to a pair of federal statues that could serve as the basis of a criminal case against sanctuary city officials.
The first is 8 USC 1324, which makes it illegal to knowingly harbor or shield an illegal alien from detection by federal authorities. The law is typically used against human traffickers, people who operate “stash houses” for smuggled aliens and, occasionally, companies that employ illegal immigrants.
The law has not been used to criminally prosecute sanctuary city officials, but Vaughn says the Trump administration’s reactivation of a Department of Homeland Security program could put such a case in the realm of possibility.
That program, known as Secure Communities, allows federal agents to check the immigration status of local inmates when police send booking fingerprints to the FBI. Under the program, fingerprint submissions to the FBI are automatically checked against DHS immigration databases. If the checks reveal that an inmate is unlawfully present in the U.S. or has an order of removal, immigration authorities can notify local law enforcement and make an immigration detention request.
As Vaughan explains, the Trump administration could make the argument that local officials who authorize the release of deportable aliens are knowingly shielding the person from immigration authorities, a violation of Section 1324.
The second federal statue that could be invoked against a sanctuary city officials is 8 USC 1373, which prohibits municipal governments from enacting policies that interfere with communication or cooperation with immigration authorities. The Trump administration has used Section 1373 to construct its operational definition of a sanctuary city and threatened to pull federal grants from any city or state whose policies don’t comply with the law.
While Section 1373 is not a criminal statute, the Trump administration could use it to seek injunctions against jurisdictions that have enacted strong sanctuary laws, as California did earlier this year.
“I am actually a little surprised that they have not done this yet, especially in the case of the new California law, which goes into effect next month,” Vaughan said. “I cannot imagine why they would not seek to block that law from taking effect, other than the fact that the federal judges of the Ninth Circuit might not be hospitable, but still, an unfavorable ruling can be appealed.”
Absent legal action from the government, private individuals and groups can bring civil lawsuits against sanctuary jurisdictions. Although previous suits against Chicago and California have failed, a bill under consideration in Congress could soon make it easier to bring legal action against sanctuary city officials.
The bill, the No Sanctuary For Criminals Act, empowers certain victims of crimes committed by illegal aliens to sue sanctuary jurisdictions, if officials in that jurisdiction had previously released the alien despite an ICE detainer.
The bill passed the House this summer and is awaiting action in the Senate.
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