Cities and towns across our divided nation are coming to terms with how to act in the wake of the recent rhetoric and executive actions coming from the White House that targets undocumented immigrants. Communities looking to protect their populations and make public their stance towards the proposed policies are either reaffirming their positions as Sanctuary Cities or Towns or contemplating adopting “sanctuary” status. Other communities, however, are coming out in support of President Trump’s position, including support for his suggestions that federal funding should be denied to Sanctuary Cities.

According to non-binding resolutions approved by Town Meeting in 1985 and 2006 and reaffirmed by the Board of Selectmen with a public statement on February 7 of this year, Brookline considers itself a Sanctuary Town.

But what exactly is a Sanctuary City or Town?

Other than a stated desire to protect the constitutional rights of immigrants, documented or not, there is no precise definition of what it means for a community to have “sanctuary” status. While a municipality’s decision regarding the procedures employed by local law enforcement don’t affect actions taken by federal agencies like U.S. Immigration and Customs Enforcement (ICE), they can determine how their police departments will cooperate with the federal government.

One of the ways local and state law enforcement can aid ICE in their attempts to take an undocumented immigrant into custody is by accepting an ICE request to detain an individual.

When local police bring a suspect to the station, standard procedure is to fingerprint them. The prints become part of the Automated Fingerprint Identification System (AFIS), which is a biometric identification methodology that uses digital imaging technology to obtain, store and analyze fingerprint data. Once the fingerprints are taken, local police shares that data with state police and the FBI, which shares the information with ICE.

This process takes only two to three hours. After analyzing the fingerprints, ICE then can request that the local authority issue a 48-Hour Detainer. If complied with, local or state police will detain the individual in question for a period not to exceed 48 hours, excluding holidays and weekends.

In 2012, BrooklinePD issued Special Order 2012-06, which states that the department would comply with ICE Detainer requests. But the political climate and confidence in the federal government have changed since 2012.

On March 15 the Massachusetts Supreme Judicial Court will begin proceedings on Commonwealth vs. LUNN, a case that could determine whether holding someone on an ICE Detainer violates that individual’s constitutional rights.

In a public hearing scheduled for March 7, the Brookline Board of Selectmen will consider adopting a proposed policy submitted by the Diversity, Inclusion and Human Relations Commission regarding compliance with ICE Detainers.

According to attorney Tony Naro, who is a member of the Commission, BrooklinePD Chief Dan O’Leary is on board with the new policy. According to Naro, “Not only does Chief O’Leary support the new language, he has announced in advance of the BOS ruling that BrooklinePD will no longer honor ICE Detainers.”

Naro credited the Board of Selectmen for their proactive approach to this issue.

“While the BOS could do the politically safe thing and wait on the SJC to rule on the issue, they have stepped up as leaders and have tackled this head on,” Naro said.

Tony Naro credits the late Frank Farlow for bringing this matter to the Town’s consciousness. “Frank Farlow, a great advocate for social justice, deserves credit for bringing this issue to the forefront after the Trump election during a meeting of the Diversity, Inclusion and Community Relations Commission,” he continued. “This was not even on my radar until he brought it to my attention.”

Are there real consequences for Sanctuary Cities and Towns?

The president issued an executive order titled “Enhancing Public Safety in the Interior of the United States.” It is unclear by the language in the order whether the government would or could take action against Sanctuary Cities or Towns. In one section the order reads, “Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order also states, “Nothing in this order shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposal.”

A straw poll conducted at the 2017 Conservative Political Action Conference (CPAC) indicated that 91 percent of conservatives approved withholding federal funding to Sanctuary Cities and Towns. But whether the federal government could constitutionally withhold federal funding is open for debate and court challenge.

It is also important to note that according to the Commonwealth of Massachusetts Committee for Public Counsel Services, in a Practice Advisory on Challenging Enforcement of ICE Detainers, a detainer is not a valid warrant issued by an independent magistrate supporting a finding of probable cause. The advisory also states that an ICE Detainer is not considered an order by the federal government; it is a request.

Written by R. Harvey Bravman