Immigration advocates protest new policing policy

PITTSFORD — Immigration advocates are protesting the Vermont Criminal Justice Council’s updated language in a state law designed to encourage fair policing.

But the chairman of the VCJC says those same advocates were involved in the updating process and are smearing the council. The VCJC has said the language in the Fair and Impartial Policing Policy must be changed in order to comply with tighter federal immigration rules or risk losing grant funding.

The VCJC met this past Tuesday morning, Dec. 12, at the Vermont Police Academy to vote on the policy changes.

VCJC Chairman and Brandon Police Chief Chris Brickell said Dec. 11 that the American Civil Liberties Union (ACLU) and the Migrant Justice workers’ advocacy organization have been continuously consulted and in the loop regarding the revisions on the Fair and Impartial Policing Policy, or FIP, since meetings began earlier this year. He added that a lot of the revised language is based on those groups’ recommendations.

Brickell said he believes the advocates have been purposely stalling the process and now are issuing inflammatory press releases and social media notices that contain misinformation in order to drum up support for their cause.

“At some meetings they have not shown up and wanted to cancel until we would agree to more meetings, without specifying what they wanted to meet about,” Brickell said. “In my opinion, they have intentionally stalled with tactics in order to push their agenda. They have gone to the media with what I would call misinformation by making comments such as we have ‘gutted’ the policy, weakened protections for immigrants, made sweeping cuts, etc. In fact, nothing could be farther from the truth. We have adopted much of their suggested language edits.”

But the ACLU also argues that the federal government cannot lawfully withhold funding and that Vermont should not be so compliant with what it considers “empty threats” from Washington.

“To be absolutely clear — we are not asking Vermont to thumb its nose at federal law,” said ACLU of Vermont staff attorney Jay Diaz in a press release last week. “Regarding the FIP Policy, the Justice Department has no lawful basis to withhold funding from Vermont, especially for policies that ensure the safety of all Vermonters. Vermont should not be fooled by empty threats, nor should our law enforcement officials cave to the bullying of Jeff Sessions. Rather, we should join the growing number of states standing up to the Trump Administration’s anti-immigrant agenda.”

Both the ACLU and Migrant Justice targeted media outlets and social media sites with a press release, urging pro-immigrant Vermonters to go to the Vermont Police Academy on Tuesday morning for the VCJC meeting to urge the council not to tighten the language of the FIP.

The FIP Policy Act requires the Council to consult with stakeholders to update and create a policy that will require every law enforcement agency in the state to adopt by January 2018. Brickell said the VCJC created a policy in 2016 with those groups and the policy had essential elements all agencies had to adopt, and some non-essential elements agencies could adopt if they chose to.

“The Council is not free to ignore federal law,” he said. “The enacting legislation from the Vermont Legislature (Act 54 of 2017) stated that the Council must bring this policy into compliance with federal law, and further provided that any policy not in compliance with federal law is abolished.”

Brickell said the non-essential elements were practices that would have made Vermont a sanctuary state and were in conflict with federal law, which is why they were not made mandatory.

“The council has had several meetings since late July with Migrant Justice, ACLU, Justice for All, Human Rights Commission and others to work towards this goal,” Brickell said. “We have provided draft policies to them and asked for responses prior to meeting with them and instead were sent back their own created policy rather than edit our document.”

PROPOSED CHANGES

The VCJC is basically putting a finer point on the language in the act regarding sharing information about a subject’s immigration status with federal authorities, such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), in order to bring the legislation into compliance with federal law. Not doing so would categorize the state as a “sanctuary state” and would result in the loss of federal law enforcement grant funding.

For instance, changing “…shall not give ICE or CBP agents access to individual in (agency’s) custody.” to “…shall not offer…” and “…shall not propose granting ICE or CBP agents access to individuals in (agency’s) custody.”

Advocates wanted the following language added to the section addressing victims and witnesses:

“Agency members shall not share information about crime victims/witnesses with federal immigration authorities, unless it is with the individual’s consent.”

The VCJC’s position is that such language would put the policy in violation of federal law. The Council instead proposed, “(Agency members) should communicate that they are there to provide assistance and to ensure safety, and not to deport victims/witnesses. In considering whether to contact federal authorities pursuant to 8 U.S.C. § 1373, (police officers) should remain mindful that (1) their enforcement duties do not include civil immigration enforcement and (2) (the agency) stands by its mission to serve all Vermonters, including immigrant communities, and to ensure the trust and cooperation of all victims/witnesses.”

Federal law limits how a state can regulate interactions with federal immigration authorities. Two federal statutes, 8 U.S.C §§ 1373 and 1644, provide that local and state agencies and officials may not prevent or in any way restrict their employees from communicating with other government officials (for example, ICE or CBP) regarding an individual’s “citizenship or immigration status.”

Remaining points of disagreement included:

•  Advocates want an absolute ban on Vermont police enforcing illegal border crossings unless a person is apprehended in the process (note that this language was never an essential component of the current policy).

VCJC position: Given that Vermont law enforcement officers can enforce federal criminal law, and illegal border crossings are a federal crime, Vermont law enforcement officers can investigate and, if necessary, enforce after establishing reasonable suspicion or probable cause.

•  VCJC, in order to stay compliant with federal law, changed “…shall not give ICE or CBP agents access to individual in (agency’s) custody” to “…shall not offer…”

Advocates wanted to return to prior language.

•  VCJC: “…shall not propose granting ICE or CBP agents access to individuals in (agency’s) custody.”

Advocate language: “No information about an individual shall be shared with federal immigration authorities unless necessary to an ongoing investigation of a federal felony, for which there is probable cause, and the investigation is unrelated to the enforcement of federal civil immigration law.”

•  VCJC language: “Information about an individual that is outside the scope of Sections 1373 and 1644 (i.e., information other than “citizenship or immigration status”) should not be shared with federal immigration authorities unless there is justification on the grounds of (i) public safety, (ii) officer safety, or (iii) law enforcement needs that are not related to the enforcement of federal civil immigration law.”

Advocate language: “No information about an individual shall be shared with federal immigration authorities unless necessary to an ongoing investigation of a federal felony, for which there is probable cause, and the investigation is unrelated to the enforcement of federal civil immigration law.”

RESIST OR COMPLY?

Immigration and social justice advocates say they would rather see Vermont law enforcement and the governor’s office push back against the anti-immigration policies of the Trump administration rather than change policy.

“Vermont has an opportunity to stand up to the Trump administration and ensure that Vermont’s resources are directed to fostering healthy communities, not the deportation of our families, friends and neighbors,” said ACLU of Vermont community organizer Nico Amador in a press release. “We call on Vermont’s leaders, including Gov. Scott and Attorney General Donovan, to reject the Trump administration’s efforts to divide us.”

Vermont Gov. Phil Scott has gone on the record stating that he believes the FIP Policy was already in compliance, but has not explained that position in detail. Advocates insist that the federal government is overstepping its authority.


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