Nine “Model” State and Local Law Enforcement Policies and Rules - Descriptions
The 9 “model” state and local law enforcement policies and rules are intended, in short, to prevent the discrimination, deportation, and surveillance of immigrant communities. Below are each of the policies written by ACLU staff along with a short description of each in laymen’s terms.
#1) The Judicial Warrant Rule: [County/City/State] officials shall require a judicial warrant prior to detaining an individual or in any manner prolonging the detention of an individual at the request of U.S. Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP).
Rule #1 is meant to stop local police and sheriffs from volunteering to do immigration detention without a judge’s approval. Immigration agents routinely ask police and sheriffs to hold people in jail before they have the legal authority to do so. Immigration agents have even asked local police to hold U.S. citizens for immigration purposes, a clear violation of their rights. The ACLU has represented many people who were illegally arrested this way, and it has cost local governments tens of thousands of dollars in court-ordered penalties. By requiring a warrant, we are protecting everyone’s Constitutional rights.
#2) No Facilitation Rule: [County/City/State] officials shall not arrest, detain, or transport an individual solely on the basis of an immigration detainer or other administrative document issued by ICE or CBP, without a judicial warrant.
Rule #2 is meant to help ensure that local police do not spend limited local dollars and staff time carrying out federal immigration work, beyond what is legally required. It also protects against violations of the Fourth Amendment and racial profiling.
#3) Defined Access/Interview Rule: Unless acting pursuant to a court order or a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no [County/City/State] official shall permit ICE or CBP agents access to [County/City/State] facilities or any person in [County/City/State] custody for investigative interviews or other investigative purposes.
Rule #3 is meant to stop immigration agents from interfering in local public safety mission. When immigration agents can come to a local facility and do whatever they want, it blurs the line between local police and federal immigration agents, and local communities lose trust in the local police, which harms public safety.
#4) Clear Identification Rule: To the extent ICE or CBP has been granted access to [County/City/State] facilities, individuals with whom ICE or CBP engages will be notified that they are speaking with ICE or CBP, and ICE or CBP agents shall be required to wear duty jackets and make their badges visible at all times while in [County/City/State] facilities.
Rule #4 is meant to ensure ICE officers clearly identify themselves. Sometimes people think they are talking to a public defender – instead, they find out they are talking to an immigration agent. Everyone has the right to remain silent or seek an attorney. Local law enforcement agencies should not assist immigration agents in deceiving immigrants and deprive them of their ability to effectively use their rights.
#5) Don’t Ask Rule: [County/City/State] officials shall not inquire into the immigration or citizenship status of an individual, except where the inquiry relates to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, or where required by state or federal law to verify eligibility for a benefit, service, or license conditioned on verification of certain status.
Rule #5 is meant to promote good government, and smart policing. Many local police departments have commonsense policies to protect victims and witnesses that ensure they only ask about immigration status if it’s relevant to a state or local crime. This rule keeps our whole community safe by drawing a clear line between local priorities and interference from immigration agencies.
#6) Privacy Protection Rule: No [County/City/State] official shall voluntarily release personally identifiable data or information to ICE or CBP regarding an inmate’s custody status, release date or home address, or information that may be used to ascertain an individual’s religion, ethnicity or race, unless for a law enforcement purpose unrelated to the enforcement of a civil immigration law.
Rule #6 is meant to safeguard privacy. ICE officers often call local police and request personal information about people (like home addresses). People deserve to have their private information protected to the maximum extent permitted by law. The rule also protects against targeting people in discriminatory ways - for example, because they are Muslim or Latino.
#7) Discriminatory Surveillance Prohibition Rule: No [County/City/State] agency or official shall authorize or engage in the human or technological surveillance of a person or group based solely or primarily upon a person or group’s actual or perceived religion, ethnicity, race, or immigration status.
Rule #7 is meant to prevent the discriminatory targeting of groups, including using false or weak justifications for doing so. For instance, it would prevent local involvement in the surveillance of a construction worksite for immigration reasons, solely because people of Latino background work there in large numbers. It would prevent the general surveillance of mosques.
#8) Redress Rule: Any person who alleges a violation of this policy may file a written complaint for investigation with [oversight entity].
Rule #8 is meant to ensure that every city, town or county has a complaint and redress process for people who have been harmed because of failures to comply with these protections. It would allow your city, county, town to make clear that rules are not just on paper, and something will be done if they are broken.
#9) Fair and Impartial Policing Rule: No [County/City/State] official shall interrogate, arrest, detain or take other law enforcement action against an individual based upon that individual’s perceived race, national origin, religion, language, or immigration status, unless such personal characteristics have been included in timely, relevant, credible information from a reliable source, linking a specific individual to a particular criminal event/activity.
Rule #9 is meant to promote fair policing, and covers areas including, but not limited to immigration. It is a standard increasingly adopted by law enforcement agencies committed to constitutional and equitable policing. It is a safeguard against biased policing, and it requires that there be specific, non-discriminatory reasons to take police action against a person.
Final Note: The Trump Administration has asserted, falsely, that if localities do not help advance Trump’s mass deportation agenda, they are violating federal law. The following rule, which is the only applicable federal law in this area, would help ensure your city, county or town establishes its clear intent not to violate federal law. While not a necessary addition, this rule may be a useful complement to the above policies.
1373 Rule: Under 8 U.S.C. § 1373 and 8 U.S.C. § 1644, federal law prohibits [County/City/State] officials from imposing limits on maintaining, exchanging, sending, or receiving information regarding citizenship and immigration status with any Federal, State, or local government entity. Nothing in [County/City/State] policies is intended to violate 8 U.S.C. § 1373 and 8 U.S.C. § 1644.
1373 Rule: Is optional, but meant to signal in a clear way that, while your city, county, or town wants to be immigrant-friendly and a “Freedom City,” it does not want to violate federal law. Your local leaders can point to this rule to show that your policies are fully consistent with federal law. That would be true even without this rule, but this rule reiterates it. It is like driving 40 mph on a street with a 50 mph speed limit, yet nevertheless calling the police and telling them that you are driving 10 mph less than the limit.