Advocate staff photo by JOHN McCUSKER -- Crescent City Connection and New Orleans skyline including the Ernest N. Morial Convention Center. File photos of aerials of New Orleans area and landmarks shot July 23, 2013.

John McCusker

The debate over so-called “sanctuary cities” heated up this past week, putting New Orleans among cities in the cross-hairs as President Donald Trump’s administration seeks to crack down on communities that limit law enforcement’s cooperation with immigration authorities.

How the New Orleans Police Department and Orleans Parish Sheriff’s Office handle immigration issues is guided by a web of considerations and the requirements of three separate court orders, complexities that local officials have frequently referenced as they’ve defended their policies.

Those policies, some of which were specifically approved by law and immigration enforcement officials under former President Barack Obama, place limits on whom police officers and jail officials can ask about their immigration status and what can be done with that information.

The policies do far less to restrict cooperation with immigration authorities than those in place in many other communities, some of which have taken a directly adversarial stance to immigration enforcement under both the previous and current presidential administrations.

“We certainly don’t agree with it being framed as being uncooperative. That’s a false narrative,” NOPD Superintendent Michael Harrison said. “We’re here to protect the citizens and visitors to New Orleans."

Questions remain about how the Trump administration will ultimately view the limits now in place in New Orleans, though it appears likely it will seek to force the city and the sheriff’s office to devote more local resources to enforcing federal immigration laws that are usually civil and not criminal in nature.

On Monday, the city was included along with about 100 other communities on a list of jurisdictions that do not cooperate fully with federal immigration authorities. The report is seen as a potential precursor to labeling New Orleans a “sanctuary community.”

Under an executive order signed just days after Trump took office, that label could cost the city tens of millions in federal dollars it now receives each year.

The report issued last week specifically focused on whether communities were complying with immigration detainers issued by U.S. Immigration and Customs Enforcement.

Those are written requests that the agency regularly sends to local law enforcement agencies nationwide asking them to hold an inmate for 48 hours — excluding weekends and holidays — after his or her scheduled release in order to give federal immigration authorities more time to determine whether to take the inmate into custody for deportation proceedings.

As central as it is to the debate, there’s no formal definition of what makes a community a "sanctuary city." That fact was noted in a brief that New Orleans and 33 other cities filed in a federal lawsuit brought by Santa Clara County, California, seeking to block Trump's executive order from going into effect.

The brief says that when he was asked recently to define a sanctuary city, Homeland Security Secretary John Kelly responded, “I don’t have a clue.”

However, cities with a wide range of policies that limit when police can ask people about their immigration status or when they can cooperate with ICE have been given the label, often by conservative detractors but occasionally by officials touting their own policies.

'Complies with federal law'

On one end of the spectrum are cities like Chicago, which bars police from turning over any information to ICE unless the agency has a criminal warrant, and which provides identification cards for undocumented individuals. More common are less comprehensive policies that merely prevent officers from asking about an individual’s immigration status.

New Orleans falls somewhere in the middle of that spectrum.

"Our policy by everybody's own admission complies with federal law," Harrison said.

The NOPD operates under a sweeping federal consent decree that was started at the invitation of Mayor Mitch Landrieu and that now guides many aspects of the department's operations, including how it handles immigration issues. Its policies are the result of discussions and negotiations among city officials, federal agencies and the monitor who oversees the agreement, with the federal judge presiding over the case having the final word.

The current version of the department’s immigration policies dates back to September and was approved by both the U.S. Department of Justice and the U.S. Department of Homeland Security, which oversees ICE.

The NOPD’s policy bars officers from asking about immigration status or stopping or arresting people on the grounds that the officer believes they may be in the country illegally.

That, Harrison said, is key to ensuring victims and witnesses feel comfortable talking to police.

“On a daily basis, our officers are focused on dealing with violent crime, dealing with property crime, working as hard as we can to deter crime, apprehend people who commit crimes,” Harrison said. “When it comes to immigration, our officers are treating perpetrators like perpetrators, witnesses like witnesses and victims like victims.”

"It’s about building trust and better relationships so we can have better reporting and not have people go underground because they have a fear of being reported," he added.

Departmental policy also prohibits officers from participating in immigration enforcement actions except when there is a direct threat to “life or public safety” or if officers are needed to safely execute a criminal warrant or court order.

“We’re under-resourced and understaffed and can’t do it anyway,” Harrison said.

The policy also specifically bars the department from aiding in enforcing civil immigration law, which includes deportations.

However, if a criminal immigration warrant is in the system when an NOPD officer runs a check on someone, the department will make an arrest, Harrison said. And nothing in the policy specifically bars officers from communicating with ICE. Such a prohibition would violate federal law, and the policy, originally put together in February 2016, was revised in the fall specifically to include that language.

At least so far, the Justice Department has not given the city any sign it will seek to alter the portion of the consent decree dealing with immigration, which would be the most direct route to changing the NOPD’s policy.

“We have not received any information that anyone has changed their legal opinion about what our policy is,” Harrison said.

The sheriff's policy

New Orleans also has been dubbed a sanctuary city because of Orleans Parish Sheriff Marlin Gusman’s refusal in recent years to honor so-called immigration detainers except in cases involving inmates charged with serious felonies like murder, rape, kidnapping and armed robbery.

In its report last week, the Department of Homeland Security flagged the Sheriff’s Office for disregarding an immigration detainer filed in late January for an unnamed Mexican national who had been jailed for battery.

In the wake of the report, the sheriff last week issued a statement in which he vowed to “stand behind our jail policies that make New Orleans a safer city while also keeping families together and using precious resources wisely.”

He also insisted that Sheriff’s Office policy complies with federal law — immigration detainers are requests, not orders — and protects “the constitutional rights of all individuals in our custody.”

“Our ICE policy is about freedom and fairness,” Gusman added, “ideals upon which I hope we can all agree and upon which our country was built.”

Gusman’s statement did not mention that the Sheriff’s Office could not change its approach to immigration detainers without the permission of a federal judge.

The Sheriff’s Office adopted a detailed immigration policy in 2013 as part of a settlement of a federal lawsuit filed by two construction workers who had been jailed unlawfully for months beyond the expiration of their 48-hour ICE detainers.

The lawsuit, filed in 2011, accused the Sheriff’s Office of routinely violating the rights of inmates who had completed their sentence, had their charges dismissed or were indefinitely denied the opportunity to post bail even after federal authorities decided not to initiate deportation proceedings.

The practice was unconstitutional, the plaintiffs contended, because the detainers did not have to be approved by a judge and could not be challenged by the inmates. ICE, the lawsuit alleged, issued such hold requests based on the “mere suspicion that an individual has committed a civil immigration violation — a suspicion that is often based on racial profiling alone.”

The U.S. Justice Department, which later joined a separate lawsuit that resulted in a sweeping plan to reform the local jail’s abysmal conditions, had determined that jail staffers tended “to rely upon memory or handwritten notes on files” to track immigrants being held on 48-hour holds. The process, the feds added in a letter to the sheriff, “is vulnerable to individuals falling through the cracks.”

Two glaring examples

Two such individuals were Mario Cacho and Antonio Ocampo, the construction workers who filed the federal lawsuit. Cacho was held in Orleans Parish Prison for five months after completing his sentence for disturbing the peace, a municipal crime. His immigration detainer expired on Aug. 25, 2009, with ICE choosing not to take him into custody, but he remained behind bars until Feb. 5, 2010, being released only after he filed a civil rights complaint with the Department of Homeland Security.

Ocampo’s case was similar. He had completed a short sentence for two counts of simple battery but, despite filing repeated grievances, was held for three months beyond the expiration of his ICE detainer.

Cacho received $19,000 and Ocampo about $11,000 under the terms of the settlement. But the most significant result of the litigation was the sheriff’s agreeing to adopt an immigration policy that forbids deputies from initiating “any immigration status investigation” or even providing an inmate’s release date to federal authorities.

The policy further states that the Sheriff’s Office “shall decline all voluntary ICE detainer requests” unless the inmate in question has been charged with murder, aggravated rape, aggravated kidnapping, treason or armed robbery with use of a firearm.

“Absent a court order,” the policy states, “OPSO shall not allow ICE to conduct civil immigration status investigations at OPSO or otherwise interview an inmate before the detainee’s first appearance.”

The Sheriff’s Office has shown no indications in recent weeks that it will seek to amend the settlement agreement, though that could change if it becomes clear that the Trump administration intends to follow through on its threat to withhold federal funds from jurisdictions deemed sanctuary cities.

It’s unclear how frequently the sheriff has declined to honor immigration detainers. Neither the Sheriff’s Office nor ICE responded to requests for that data.

The sheriff’s immigration policy has drawn criticism from a host of Republican lawmakers, who have accused him of providing safe harbor to people in the country unlawfully.

But Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, supports the sheriff’s position.

“Immigration enforcement is a matter for federal and not local officials,” Esman said. “The job of local law enforcement, such as the sheriff, is to protect the safety and fundamental rights of everyone, including immigrants.”

Follow Jeff Adelson on Twitter, @jadelson.​