The sanctuary city debate just go real. Newly proposed federal laws could threaten city-level, pro-immigrant, policies in as many as 300 municipalities across the country. On Thursday, the House passed a bill to punish cities that don’t fully cooperate with federal immigration enforcement agencies, commonly known as “sanctuary cities.” Another anti-sanctuary bill has been presented to the Senate, called "Kate's Law." The White House has already threatened to veto such a law. The legislation got increased attention after the death of Kate Steinle, a woman who was allegedly murdered by an undocumented immigrant in San Francisco. This week, her father Jim Steinle endorsed “Kate’s Law,” which would penalize sanctuaries and create minimum mandatory sentences on immigration violators. Jim Steinle says that such a law would save lives , while others argue that it’s a misguided reaction to the tragedy.

The House bill penalizing sanctuary cities was largely split along party lines, but the debate over the cause of Steinle’s death is not. It’s pretty clear that the undocumented man, Juan Francisco Lopez-Sanchez, shot Steinle (he’s admitted this but has pled not guilty, saying it was an accident). If Lopez-Sanchez had been apprehended by ICE (the day he was released after a long jail sentence), Steinle might be alive today. A multiple-time felon with five previous deportations, Lopez-Sanchez is exactly the type of immigrant that should be deported under current White House policy. Local and federal officials disagree as to who is responsible for letting Lopez-Sanchez walk free.

Municipal Sanctuary City Laws

There's another debate raging not along party lines, but between local and federal officials. Local officials have no voice in making immigration laws and no responsibility to enforce them.

The “sanctuary cities” label broadly describe municipalities whose local policies facilitate civic participation by undocumented immigrants and protect residents from potential civil rights violations. While federal officials are tasked with deporting undocumented immigrants, local governments have to decide how to incorporate the more than 11 million people eligible for deportation. In New York City, undocumented residents may obtain a municipal ID card that allows them to enter public buildings and receive locals’ discounts at museums.

San Francisco is considered a “sanctuary city” because it limits the types of federal immigration detainer requests that the local sheriff’s department will honor. All sanctuary policies make life easier for undocumented immigrants, but only policies on detainer requests and cooperation with law enforcement are being targeted by federal legislation. As a representitive of the American Civil Liberties Union (ACLU) told us in an email, the label "doesn't really capture what's at issue [in the House bill];" even cities like San Francisco don't provide sanctuary in the sense that they prevent "prevent foreign-born crimminals from arrest." (Full disclosure: I was a paid intern at the ACLU in New Mexico for a summer in 2009). 

Immigration Detainers

What is an immigration detainer and when should it be honored by local law enforcement? The first question has an answer. Immigration detainers are notifications from Immigrations and Customs Enforcement (ICE) to local law enforcement agencies that they intend on apprehending a suspected undocumented immigrant. In the past, ICE has asked local law enforcement to keep those suspects in custody for 2-5 days

“San Francisco Sheriff’s Department will no longer honor U.S. Immigration and Customs Enforcement (ICE) detainers unless they are supported by judicial determination of probable cause or with a warrant of arrest,” according to a 2014 policy statement released by San Francisco Sheriff Ross Mirkarimi.

In other words, local police in San Francisco won’t keep someone in a jail cell unless there is reason to believe that they’ve committed a crime. If that’s inconvenient for federal immigration agents, Mirkarimi told press on July 10th , “then it’s inconvenient for us to be testing the erosion of the Constitution. And that’s part of the inherent conflict that needs to be reconciled and has been well explained to leadership of ICE.”

Critics Of ICE Detainer Request Say They’re Unconstitutional And Unsafe

Mirakami and other skeptics of ICE detainers got some validation from court rulings that ICE detentions are legally questionable. Just last week the First U.S. Court of Appeals (coincidentally located in San Francisco) affirmed a Rhode Island court’s ruling that ICE needs to establish probable cause to detain a suspected “illegal alien.” In the case, a Guatemalan-born U.S. citizen was held in a prison for more than a day at the behest of ICE who -- for the second time -- had falsely suspected that person.

Notification and information sharing are also a part of ICE detainers. ICE can request that local law enforcement notify them when they arrest a suspected undocumented immigrant, or when they plan on releasing them. Mirkarimi has also gotten bad press for not notifying ICE of Steinle’s alleged shooter’s release. It's unclear if he violated department policy by “not picking up the phone,” as his critics Mayor Ed Lee and Senator Dianne Feinstein have mentioned. In any case, it’s important to know that there are some sanctuary cities that rarely notify ICE of an arrestee's immigration status.   

For example, Santa Fe, New Mexico Police Department has a sort of “don’t ask, don’t tell” policy with immigrants, a SFPD spokesperson told the Latin Times. Even if a suspect divulges her immigration status, officers have to receive approval from a commander to notify ICE. That rarely happens unless the person has committed a violent felony. Even in those cases, the SFPD will notify, but not detain someone on immigration charges alone.

If departments notify ICE about every undocumented immigrant that comes through their door, two undesirable things often happen. First, some people will get deported without committing a crime (immigration violations fall under civil, not criminal law). Perhaps the worst examples of this are domestic violence victims , who are are often arrested along with perpetrators. Turning them over to ICE is not a popular idea. Second, indiscriminate use of detainers with undocumented immigrants makes them and their family members afraid to call 911. That's bad for their safety, advocates argue, as well as their neighbors' safety.

How can low-priority immigrants stay safe, while high priority immigrants like Lopez-Sanchez are routinely deported? The House bill passed on Thursday seeks to force local plice departments to cooperate by threatening federal funds. 

House Bills Put A Price On Federal Funding

It's usually cities -- not ICE -- who end up having to pay damages to victims in these lawsuits, so there’s a disincentive to complying. The House bill passed on Thursday doesn’t force cities to honor detainer requests; the federal government doesn’t have the authority to do that. It also doesn’t address the existing financial disincentive, for example by mandating that the feds pay the basic costs of detention, let alone the costs of lawsuits. (Though the bill doesn’t explicitly prohibit localities from charging ICE to hold prisoners, as right-leaning Federation for American Immigration Reform pointed out to us in an email). On one hand, the bill would constitute an unfunded mandate. It requires local resources to help execute federal immigration laws, without the promise of extra money.

On the other hand, the bill’s punishment mechanism is to cut federal funding. So in a way, it's asking cities to pitch in on immigration enforcement after receiving grants for other things from the feds. If passed, the first thing sanctuary cities will do is weigh the financial benefit of existing grants against the expected costs of detention, police hours and lawsuits.

Where The Debate Could Go From Here

Remember Santa Fe’s narrow violent-felons-only rule on ICE notifications? Under Obama’s new enforcement priorities , ICE will be focusing on violent felons anyway. As long as those rules are in place, the entire country has become a bit of a “sanctuary city” anyway. So there will be less tension between ICE's mission to deport and cities; desires to focus on local law enforcement. Even if Obama were to sign an anti-sanctuary bill into law, it might not be that effective. Take Santa Fe's “don’t ask, don’t tell policy,” which prevents most immigrant from ever being reported to ICE. Cities might find plenty of loopholes to keep the spirit of their policies, without losing federal funding, not to mention that some cities might not even rely on such funds.