Reforming the NOPD s Bias-Free Immigration Policy. White Paper: Key Policy Recommendations for the New Orleans Police Department

Transcription

1 Reforming the NOPD s Bias-Free Immigration Policy White Paper: Key Policy Recommendations for the New Orleans Police Department New Orleans Workers Center for Racial Justice September 2014

2 Reforming the NOPD s Bias-Free Immigration Policy: A White Paper Key Policy Recommendations for the New Orleans Police Department Prepared by: NEW ORLEANS WORKERS CENTER FOR RACIAL JUSTICE 217 North Prieur Street New Orleans, Louisiana Phone: (504) , Facsimile: (504) SUMMARY The following white paper analyzes the current Immigration Policy of the New Orleans Police Department (NOPD), which seeks to enforce federal immigration law. As discussions move forward regarding revisions to this policy, we strongly urge the adoption of the below reforms to the NOPD policy in accordance with core Constitutional principles, best community policing practices, and strong input from the community. As a multi-racial organization with expertise in civil, labor, and human rights, the New Orleans Workers Center for Racial Justice and the Congress of Day Laborers have been documenting a pattern and practice of civil rights violations by the NOPD, and monitoring the progress of the NOPD Federal Consent Decree with the Department of Justice with special attention to protections related to immigration status and racial justice. While we are hopeful, with new leadership at the NOPD, that the immigration policy under review will finally embody bias-free policing principles as required by the Consent Decree, we urge the City and all parties involved to ensure that the policy clearly adopt the following three best-practice recommendations: 1) Prohibit NOPD from enforcing federal immigration law both unilaterally and with ICE assistance; 2) Prohibit NOPD from stopping and interrogating residents about their immigration status and demanding their foreign documents; 3) Recognize the right of residents to provide verbal communication of their identity or present non-government identity documents when officers in the field ask a resident to identify themselves. A revised policy incorporating these policy recommendations can be reviewed at Exhibit B. 1 1 All exhibits can be accessed online via the New Orleans Workers' Center for Racial Justice website, White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 1

3 PROCEDURAL BACKGROUND As part of the Federal Consent Decree, the NOPD is required to create a bias-free policing policy for the immigrant community that is subject to review and revision by the Department of Justice and Federal Monitor. The Consent Decree requires the NOPD to develop and implement a plan to provide all individuals within the City essential police services regardless of immigration status, in order to build and preserve trust among community members, including dissemination of a written policy. 2 NOPD was required to create such a bias-free policing policy in order to remedy a pattern and practice of police targeting Latinos based on racial profiling for stops, interrogations, investigations and arrests based on immigration status, as found by the U.S. Department of Justice. 3 In June 2013, without the input of the community, Department of Justice, or Federal Monitor, the NOPD unilaterally issued an immigration policy called Policy 428: Immigration Violations. See Exhibit A. Rather than creating a bias-free policing policy, Policy 428 did the very opposite issuing a confusing policy that permitted NOPD officers to inquire about immigration status, enforce federal immigration violations, and participate in Immigration and Customs and Enforcement (ICE) community raids, while simultaneously failing to incorporate the recommendations that community members have long been requesting. Given serious concern over the policy, the NOPD has been required by the Federal Court to revise its Policy 428. A revised, draft Policy 428 is under development. The following briefing provides background on the community s policy revisions to Policy 428 that are necessary to ensure that the policy complies with fundamental Constitutional protections of civil rights and prohibition on racial-profiling and best community-oriented policing practices. A revised policy incorporating our policy recommendations can be reviewed at Exhibit B. 2 U.S. v. City of New Orleans, No. 12-cv (E.D. La. July 24, 2012) (Document 2-1, 183). 3 Civil Rights Div., U.S. Dep t of Justice, Investigation of New Orleans Police Department, (Mar. 16, 2011) at viii and x, available at White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 2

4 ANALYSIS AND RECOMMENDATIONS I. NOPD Should Not Enforce Federal Immigration Law Such As Stopping, Interrogating, and Arresting Individuals for Federal Immigration Violations Over the years, the Latino and immigrant community members have experienced widespread, systematic problems in which NOPD engages in racial profiling to stop and arrest Latino community members, either through joint actions with federal immigration officials or unilateral actions against residents for the purpose of enforcing federal immigration law. The following are a small sample of these incidents: In March 2014, Murilo Gomes, a Latino reconstruction worker, was driving in a primarily Latino neighborhood in Mid-City when he was stopped by NOPD. The officer proceeded to arrest Murilo and detained him in the backseat of the police car for hours until ICE agents came to pick him up. Murilo was only granted temporary relief from deportation after the public expressed civil rights concerns over his arrest. In August 2013, Enrique Morales-Sosa was a passenger in a vehicle that was pulled over by NOPD in a traffic stop. He, his partner, and the driver were all Latino and driving to the store to buy school supplies for Enrique s daughters. Upon being stopped by NOPD, ICE agents surrounded the car, interrogated them about their immigration status and arrested Enrique. NOPD failed to provide any articulable reason for the stop, and no citation was ever issued. Enrique was a reconstruction worker who came to New Orleans in 2007 to help in rebuilding efforts and had no criminal record. He was deported in September, leaving behind his partner and two children. In August 2013, Ernesto Zacarias-Lopez went to the Ideal Supermarket, a Latino supermarket in New Orleans, to buy food for his pregnant partner. As he got into his car to leave, NOPD and ICE vehicles surrounded the parking lot, and agents began pulling people from their cars and arresting them. During the raid, Ernesto witnessed an NOPD vehicle block the exit and stop Latino drivers so that ICE could interrogate individuals inside. Ernesto was granted temporary relief from deportation after community advocacy. In 2010, federal Border Patrol agents raided a day laborer corner in the Marigny. Joaquin Hernandez, a day laborer and Latino resident of the Marigny, was walking home when a vigilante tackled and pinned him to the ground. A neighbor called NOPD to the scene. Rather than taking investigative or other action against the vigilante, NOPD handcuffed and detained Joaquin until Border Patrol agents were called to the scene and took him into custody. See Exhibit C. The NOPD s bias-free immigration policy must clearly prohibit NOPD from enforcing federal immigration law regardless of whether the NOPD engages in unilateral immigration enforcement actions or assists ICE with its immigration raids. Local police enforcing federal immigration law is both bad law and bad policy. For one, NOPD enforcement of federal immigration law would raise serious Constitutional problems in the wake of U.S. v. Arizona, 132 S. Ct. 2492, the U.S. Supreme Court decision prohibiting Arizona from deputizing local police to enforce federal immigration law. 4 Second, allowing NOPD to unilaterally or assist in 4 See Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (local police do not have general power to arrest residents for violating federal immigration laws); Santos v. Frederick County Bd. of Com rs, 725 F.3d 451 (4th Cir. 2013) (violation of Fourth Amendment to stop, question and arrest resident for immigration violation); Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) (same). White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 3

5 immigration enforcement fuels its proven pattern and practice of racial profiling Latinos based on perceived immigration status. As Orleans Parish Criminal District Court Judge Arthur Hunter a former NOPD officer states in an editorial explaining how local police enforcement of federal immigration law leads to racial-profiling: I have seen firsthand the onerous burden placed on law enforcement and the judiciary when statutes like those enacted in Arizona and Louisiana criminalize a person s inability to establish his or her immigration status upon demand my experience as a trial court judge has convinced me that cautionary no-profiling provisions are inherently ineffective. They are unenforceable because they are vague and give too much discretion to police officers on the street Is there any means by which law enforcement agencies can develop objective policies that do not rely on skin color, national origin, or other racially or ethnically subjective factors to trigger an inquiry into whether a person is an illegal immigrant? 5 Thirdly, NOPD should not be allowed to join ICE in immigration field operations when ICE New Orleans Field Office engages in systemic racial profiling in its enforcement activities. There has been overwhelming national concern over the enforcement tactics of ICE in New Orleans that rely on racial profiling, indiscriminate mobile fingerprinting, and large-scale community raids. 6 No local police force should be participating in such raids with ICE or replicating these tactics on their own volition. Furthermore, a policy which draws a bright line between the NOPD and federal immigration enforcement agents would restore trust within Latino and immigrant communities and make communities far more comfortable in reaching out to the NOPD for help and to report crime. One comprehensive academic study, based on over 2,000 phone interviews in four major metropolitan areas, found that 44% of Latinos, regardless of their immigration status, are less likely now to contact police if they were victims of a crime because they fear officers will inquire about their immigration status or the status of people they know a fear that jumps to 70% among Latinos who do not currently have lawful status. 7 This study sparked concern among members of U.S. Congress, who held a panel on its findings, where Congressman Jared Polis (D-Colo.) noted that the report highlight[ed] how local law enforcement's greater role in immigration enforcement has created mistrust between the Latino community and local police, making all of our communities less safe from crime. 8 The community wants to be able to trust the NOPD and work with the police to address crime in the City, as Latinos and immigrants are often the targets of crime in the City. 9 However, this trust and cooperation cannot occur when NOPD is actually engaged in efforts to deport residents and stopping and interrogating Latino residents about their immigration status. In an already resource-strained police force that it trying to stem systemic 5 Judge Arthur Hunter, The Day-to-Day Reality of Enforcing Federal Immigration Law, WASHINGTON POST, April 22, Julia Preston, Amid Steady Deportations, Fears Among Immigrants Multiply, NY TIMES, 23 December 2013; Katy Reckdahl, Fear of Immigration Raids Causing Fear Among Many in N.O., Area, THE ADVOCATE, 28 November 2013; Hannah Rappleye, Does High-Tech Dragnet to Deport Immigrants Go Too Far? NBC NEWS, 28 February 2014; Suzanne Gamboa, Heavy Police Tactics A Reality For Immigrants, Latinos Too, NBC NEWS, 28 August See Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, U. of Illinois at Chicago (May 2013). 8 Brian Bennett, Latinos Now Less Likely to Report Crimes to Police, Report Says, L.A. TIMES, May 07, 2013, Advocates say crime against Hispanics going unreported, WWLTV, June 2014, available at html. White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 4

6 violence, NOPD should not be using its limited resources to enforce civil and federal immigration law. Lastly, the principle of local police staying out of the business of enforcing federal immigration law is an established best-practice policing policy and supported by numerous police departments across the U.S. including the Major Police Chiefs Association of which the NOPD is a member. 10 For the same reasons articulated above, police departments across the country have adopted policies of bias-free policing that deliver police services regardless of immigration status. 11 It is time for the New Orleans Police Department to adopt these best and constitutional practices. Recommendations The bias-free policing policy must clearly prohibit NOPD from enforcing federal immigration law and from assisting ICE agents in conducting immigration enforcement. Specifically, Policy 428 should be revised in the following manner: Policy 428 should not be titled Immigration Violations. Rather, the policy should be properly labeled as a bias-free policing policy with the proper signature Discriminatory Policing / Bias-Based Profiling Immigration Status. Policy should be revised to state that the purpose of the policy is providing all individuals within the City essential police services regardless of immigration status, in order to build and preserve trust among community members. NOPD s statement that the purpose of the policy is reporting, investigating, and enforcing immigration laws must be deleted, as this is not the purpose of the policy as required by the Federal Consent Decree. Exhibit B, at 1. Policy should clarify that prohibited law enforcement actions include not just stops but also apprehension, and arrest based on perceived or actual immigration status. Id. Policy should be either deleted or revised to state that the NOPD will only provide available support services, such as traffic control or peacekeeping efforts, to ICE where it is required by a criminal warrant or court order issued by a Federal or State Judge. Exhibit B, at See Police Chiefs from Nation s Major Cities Object to Legislative Proposals Requiring Local Police to Enforce Federal Immigration Law (statement released by Major Cities Chiefs Association, June 2013), available at: Major Cities Police Chiefs Association: Immigration Position, October 2011, available at 11 See e.g. Washington D.C., the Metropolitan Police Department s Circular 12-09, implementing Mayor s Order (Oct. 19, 2011); New Haven, Connecticut Police Department s General Order 06-2; Chicago Police Department s Special Order S White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 5

7 II. NOPD Officers Should Not Interrogate Community Members About Their Immigration Status or Demand Foreign Country Identification Similarly, NOPD officers have engaged in a pattern and practice of asking community members, particular those who are Latino or Limited English Proficiency speakers, about their immigration status or demanding foreign country identification. The Department of Justice Civil Rights Division found such a pattern of routine profiling of Latinos by NOPD officers during its federal investigation of the Department: Latinos in New Orleans, especially young Latino males, report that NOPD officers stop them for unknown reasons or for minor offense that would not ordinarily merit police attention, and then question them regarding their immigration status. 12 These Department of Justice findings are supported by the direct experiences of community members. Our community members have consistently reported NOPD officers stopping, questioning and investigating members regarding their immigration status and/or country of origin. Below are small sample of such incidents: In the Summer of 2013, a Latina community member was driving with her infant child when an NOPD officer stopped her over for unknown reasons. When she could not produce a driver license, police officer demanded her foreign passport and threatened to arrest her if she did not produce it. The police officer finally allowed her to leave with a traffic citation after the community member called a community leader to liaison with the officer. In late 2013, a Latina community member was driving when an NOPD officer stopped her for unknown reasons. When she could not produce a driver s license, the police officer demanded her foreign documents. The member produced a foreign identity card at which point the NOPD officer proceeded to threaten her with arrest. Confused and afraid, the community member asked the NOPD officer why she was being arrested and requested translation assistance. In response, the officer began shouting aggressively and then proceeded to get back into his car and leave the scene with the member s foreign identification. No traffic citation was issued. In 2011, a Latino community member was stopped by an NOPD officer while he was driving. The officer interrogated him about his immigration status and proceeded to arrest him, charging him with violating La. R.S. 14: (operating a vehicle without lawful presence in U.S.), even though the Fourth Circuit Court of Appeals had found the law unconstitutional more than four years ago. See Exhibit D. Such practices of stopping and interrogating community members about their immigration status must cease. As explained above, these NOPD actions damage the trust between police and the Latino and immigrant communities. Moreover, these police encounters with the community are often based on troubling and unconstitutional factors such as racial stereotyping of Latinos. It should be noted that past NOPD Superintendents have repeatedly made verbal assurances that it s not department policy to ask about immigration status Civil Rights Div., U.S. Dep t of Justice, Investigation of New Orleans Police Department, (Mar. 16, 2011) at viii and x, available at < 13 Local Officials Pressed To Stop Deportation Of Undocumented Workers, WWNO, May 2, 2013, available at: White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 6

8 Former Superintendent Ronal Serpas has stated publicly that it is not the policy of the Police Department to ask immigration status, and that whether someone is documented or undocumented is of no interest to local police given that immigration enforcement is the responsibility of the federal government. 14 Former Superintendent Riley also stated as a policy matter that the NOPD will not under any circumstances focus on deportation. 15 However, the current Policy 428 clearly contravenes the NOPD s public assurances on this matter and perpetuates, rather than remedies, systemic problems. Recommendations The bias-free policing policy should clearly prohibit NOPD officers from using their time and resources to interrogate residents on their immigration status and asking residents for their foreign identity documents. Specifically, the policy should be revised in the following way: Insert at Policy 428.2: Officers shall not use their time or resources to investigate, question, inquire about a person s immigration status or otherwise enforce federal immigration law. Exhibit B, at 1. Delete Policy Information Sharing: this provision is confusing and overbroad, seemingly permitting NOPD to gather information on immigration status and enforce federal immigration law, contradicting previous provisions of the policy and the core purpose of the policy. Id. at 2. Insert at new Policy 428.4: Officers shall not require that a person produce a foreign passport as evidence of identity when a person is unable to produce a state identification card or driver s license. Id. at 2. Insert Policy 428.5: Except as otherwise provided under applicable federal law, Officers shall not disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual s parent or guardian. Id. at 2. Ronal Serpas Meets the Press, Gambit, June 14, 2010, available at: /ronal-serpas-meets-the-press/ Content?oid= Kevin Allman, Pot, Immigration Status Not Priorities, Gambit, 8 February 2011, available at: Riley, Nagin push for immigration reform, announce that officers will not inquire about illegal immigrants' status, Times Picayune, September 2009, available at: /2009/09/riley_nagin_push_for_immigrati.html. White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 7

9 III. NOPD Officers Should Accept Verbal Communication of Identity or Non-Government Identity Documents When Asking an Individual to Identity Themselves NOPD has been engaging in a troubling practice of stopping and arresting residents for not being able to show government-issued identity documentation upon request. Such a practice has disproportionately affected not only immigrant community members but also low-income and/or transgender members of our community. Black, Latino, and transgender 16 community members routinely report being targeted by the NOPD in stop-and-identify encounters and arrested because they could not produce government-issued identity documents upon demand. These unlawful practices must cease. The ACLU of Louisiana has already documented and expressed concern over these practices. 17 And there are serious constitutional concerns, 18 not to mention national and public concern over overzealous police forces arresting individuals for small infractions or no infraction at all because resident could not produce government issued ID. 19 Additionally, such practices waste taxpayer money on incarcerating residents for low-level offenses or no offense at all. NOPD should not be using its limited resources in arresting individuals for simply not carrying government issued identification. Such minoroffense arrests further alienates community from working with the police force and takes away much needed NOPD resources from fighting serious crime in the City. Partially in response to these stop-and-identify encounters and arrests, civil rights organizations like the Congress of Day Laborers and BreakOUT, a civil rights membership of LGBTQ youth, provide membership cards that members can present to officers in such police encounters. The card provides the identifying information such as the member s name, photo, and date of birth, as well as a written statement asserting the member s Constitutional right to remain silent and right to counsel, and request for permission to leave if not under arrest. However, rather than respecting this manner of communicating identity information and the member s asserting of his or her constitutional rights, NOPD officers have mocked and ridiculed Congress of Day Laborer members for producing these cards and asserting their constitutional rights therein. Such conduct is deeply concerning and underscores the need for a formal, written policy. 16 See e.g. Walking While Woman' and the Fight to Stop Violent Policing of Gender Identity, March 7, 2014, available at: 17 ACLU Seeks Records On NOPD Practice Of Stop And Identify, ACLU of Louisiana, available at: 18 No state law in the United States permits officers to arrest individuals for not carrying government issued ID. The applicable Louisiana law on identification La. Rev. Stat. 14:108(B)(1)(c) requires that an individual communicate their identity at the request of the police officer. An individual is free to convey this identity information in the manner of his choosing like through verbal communication; a government-issued ID is not necessary. It should be noted that a law criminalizing individuals for not carrying government ID would run into serious Constitutional problems. See Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) (holding that similar stop and identify law did not violate the Fourth Amendment provided that an individual was free to decide the manner of conveying identity information including verbal communication or document production). 19 Dismal Tale of Arrest for Tiniest of Crimes, NY Times, November 1, 2011, available at: (student arrested for two days for walking in park afterhours rather than given citation because she was not carrying government issued ID). White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 8

10 Recommendation The bias-free policing policy should clearly prohibit NOPD officers from arresting residents for failing to present government-issued identity documents. Specifically, Policy 428 should be revised in the following way: Insert Policy 428.4: When making a request that a person provide evidence of his or her identity, Officers shall accept as adequate evidence of identity, presentation of a photo identity document issued by a non-government organization stating the person s full name and date of birth or a verbal statement of the person s full name and date of birth. Exhibit B, at 2. NEXT STEPS As the implementation of the Federal Consent Decree moves forward, we believe that all parties as well as the community have a critical role to play in ensuring that the NOPD adopts fundamental Constitutional and community policing principles as embodied in these policy recommendations. In particular, we urge that specific attention be paid to the Bias-Free Immigration Policy emphasized herein as review and negotiations over the final policy are currently taking place. For further inquiries into this policy and recommendations, please contact Staff Attorney Yihong Julie Mao via phone at (504) or via at jmao@nowcrj.org. White Paper: Reforming the NOPD s Bias-Free Immigration Policy // NOWCRJ // 9