Fake Legal Claims from the Trump Administration on Sanctuary Cities

Last week the Supreme Judicial Court of Massachusetts issued a significant ruling concerning the enforcement of both federal immigration law and local law in the so-called “sanctuary” jurisdictions. In this post I want to summarize the case, Sreynuon Lunn v. Commonwealth, and then briefly scrutinize a very peculiar legal claim advanced by the Trump-Sessions Justice Department. (Note that it is a bit unusual for the federal government to file a brief in state court when the legal issues concern state law, but the Trump administration is being aggressive, to say the least, on matters relating to immigration enforcement.)

First, by way of background, this case involves the power to arrest people. In America, the government’s power to arrest is limited by both constitutional and statutory law. The police may be able to write tickets for certain offenses (littering) but they are not arrestable offenses because that’s they way the legislature wrote the law. In places like North Korea, the police power to arrest is unlimited. The police there can arrest anyone at any time. To keep our country free, we have to be vigilant about governmental attempts to weaken the limits on the power to arrest.

Turning now to the case before the Massachusetts court, Sreynuon Lunn was being held in a jail cell at the Boston Municipal Court. The criminal charge against him, unarmed robbery, was dismissed.

When a criminal charge is dismissed by the court, that ordinarily means the prisoner must be freed. In this case, however, Lunn was not released. Local officials kept Lunn locked away because of a request from federal immigration police.

Hours later, federal police arrived and took Lunn into federal custody. Lunn’s attorneys filed an action in the state court that said the local officials acted unlawfully in keeping Lunn locked up when he was otherwise free to leave the jail.

The legal crux was this: What was the legal source of that power to arrest and detain?

The Massachusetts high court could not un-do what had already been done because it lost jurisdiction when Lunn was taken into federal custody, but it recognized that similar situations might arise—so it decided to go ahead and clarify its own law in this area. That is, whether local officials, going forward, should keep people like Lunn locked up at the request of federal immigration police.

The court’s analysis began with the first principles regarding the power to arrest. Depriving a person of his liberty, holding a person against his will, is an “arrest” under Massachusetts law.

This now gets a little technical, but it is important. When the criminal charge against Lunn was dismissed, the law said he should be freed. But since the jailors kept him locked up, Lunn was, in effect, “arrested” a second time and this is what the court focused on.

The next question was whether the locals had a valid legal reason for that second “arrest,” in other words, to keep Lunn locked up.

In this case, the feds did not possess a federal arrest warrant. They did present a document called a “civil detainer,” which is a request that a prisoner be held for 48 hours. The court noted, properly, that the federal civil detainer, by itself, had close to zero legal impact or force. It was a request, not a legal command.

Now imagine if a private citizen (Sean Hannity, Mark Zuckerberg, whoever) requested that local police keep a friend of yours locked up and the local officials went ahead and did just that!

The Massachusetts court didn’t get that dramatic in its ruling but instead methodically went about an analysis of the legal claims. Since the federal document was a mere request, the court had to turn to state law to see if it could provide a valid basis for Lunn’s detention.

The court reviewed state law concerning valid warrantless arrests but none of those precedents were applicable to persons like Lunn. And no government lawyer could identify “a single Massachusetts statute that authorizes a Massachusetts police officer or court officer, directly or indirectly, to arrest in the circumstances here, based on a Federal civil immigration detainer. Simply put, there is no such statute in Massachusetts.”

Unauthorized arrests are illegal arrests. The length of time only exacerbates the illegality—an illegal arrest over days is worse than an illegal arrest over hours, for example.

At last we come to the peculiar legal claim advanced by Trump’s Department of Justice in an amicus brief that was filed before the Massachusetts court.

Federal lawyers argued that Massachusetts police officers have the—wait for it— “inherent authority” to make arrests for federal civil immigration matters.

The court unanimously rejected the claim. Here’s an excerpt:

Where neither our common law nor any of our statutes recognizes the power to arrest for Federal civil immigration offenses, we should be chary about reading our law's silence as a basis for affirmatively recognizing a new power to arrest -- without the protections afforded to other arrestees under Massachusetts law -- under the amorphous rubric of "implicit" or "inherent" authority.

That was an extremely polite way of saying, “Um, we’re not going to approve some new power to arrest when there is no basis for it whatsoever in our law. Not a chance.” The Justice Department’s claim was, in a word, fake.

Conservatives typically caution against the dangers of federal overreaching and respecting the prerogatives of the states, but in this case the Trump administration swept those ideas aside in a bid to “win” a case against sanctuary jurisdictions. It’s a very good thing that the administration’s legal claim failed here.

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