While impacted communities have worked hard to pass a statewide policy limiting collaboration between local police and federal immigration authorities (known as the statewide Fair and Impartial Policing Policy), the current policy unfortunately has several loopholes and has been weakened since it was first adopted statewide in 2016. However, the VT state’s attorney general has established the statewide FIPP as “the floor, not the ceiling.” By passing H.518 in the spring of 2019, the Vermont legislature clarified that cities and towns that build upon their current FIP policies to close loopholes and strengthen them will have their policies certified by the VT Attorney General’s Office.
All local jurisdictions were required to adopt, at a minimum, statewide model policy by March 1, 2018. However, Burlington has yet to adopt the statewide model policy. Instead of moving to adopt the statewide model policy, Burlington should take this opportunity to build in stronger protections for immigrant rights by putting forward a policy that closes the loopholes left behind in the statewide model policy that allow for local police to collaborate with federal immigration authorities.
The loopholes in the current FIPP allow Burlington police to:
The stronger Fair and Impartial Policing Policy that Migrant Justice and community organizers have put forward will close these loopholes.
I thought that the FIPP had already been passed! What makes this policy different?
While impacted communities have worked hard to pass a statewide policy limiting collaboration between local police and federal immigration authorities (known as the statewide Fair and Impartial Policing Policy), the current policy unfortunately has several loopholes and has been weakened since it was first adopted statewide in 2016. However, the VT state’s attorney general has established the statewide FIPP as “the floor, not the ceiling.” By passing H.518 in the spring of 2019, the Vermont legislature clarified that cities and towns that build upon their current FIP policies to close loopholes and strengthen them will have their policies certified by the VT Attorney General’s Office.
All local jurisdictions were required to adopt, at a minimum, statewide model policy by March 1, 2018. However, Burlington has yet to adopt the statewide model policy. Instead of moving to adopt the statewide model policy, Burlington should take this opportunity to build in stronger protections for immigrant rights by putting forward a policy that closes the loopholes left behind in the statewide model policy that allow for local police to collaborate with federal immigration authorities.
The loopholes in the current FIPP allow Burlington police to:
The stronger Fair and Impartial Policing Policy that Migrant Justice and community organizers have put forward will close these loopholes.
How is this different from sanctuary city status?
Sanctuary City is an important symbolic declaration standing up immigrants and protecting their rights. By contrast, our proposal would prohibit the kind of collaboration between police, ICE and CBP that led to Luis “Chiri” Ulloa’s arrest and deportation, and it will be up to the Burlington public to make their police department accountable to this policy.
Why is there an urgency for this policy to be passed?
Right now immigrants are living in fear and getting detained and often deported almost weekly.
In 2017, father and son Luis and Armando were driving a farm vehicle when they were pulled over by the Franklin County Sheriff’s Department for a registration violation. When the deputy saw one of them had a Mexican ID, he radioed for Customs and Border Protection (CBP) and held them until agents arrived. The Sheriff’s Department freely provided information to the CBP agents. The two were arrested by Border Patrol, spent six months in immigration detention, and were deported. The sheriff attempted to justify the department’s collaboration as being necessary to protect officer safety, one of the loopholes in their policy.
In 2018, Olman, a husband and father of three, was arrested by the Vermont State Police on suspicion of driving under the influence. The trooper made a civilian call to federal agents allowing ICE to interrogate Olman. State police held Olman in custody and allowed ICE agents to enter the police barracks and arrest him. Olman spent months in immigration detention before winning his case and being reunited with his family.
In November 2019, a Chittenden County Sheriff detained, arrested, and turned over Luis “Chiri” Ulloa to Border Patrol, who incarcerated him and has begun processing him for deportation. What was his “crime?” Being an undocumented passenger in a car pulled over for speeding on I-89. Chiri’s arrest violated the Chittenden County Sheriff’s current FIPP, which points to our need to hold local police officers accountable to all policies, including future, strengthened ones.
The language “suspected of having recently crossed the border” allows for any number of markers to be used to open the door to ask about immigration status. A better policy must require actual evidence of border crossing in order to ask about immigration status.
Immigrants around the state regularly decide not to call the police when victims of crimes, for fear of being turned over to ICE and deported. Migrant Justice regularly receives calls from survivors of domestic and workplace violence who refuse to contact the police due to this fear.
These are all examples of the kind of harm that the loopholes which exist in the current Burlington FIPP cause and underscores why it is urgent for Burlington to act now to end the collaboration between police and immigration authorities. If Burlington adopts a strengthened FIPP, it will have a progressive impact throughout the state, encouraging other cities and towns to follow suit and do the same.
Is this legal?
Trump’s threat of withholding funding to so-called “sanctuary cities” has to do with a federal law called 8 U.S.C. § 1373. This law says that states and municipalities cannot adopt policies that prevent employees from sharing information related to an individual’s citizenship status with federal immigration officials. In 2017, the Department of Justice (DOJ) began withholding federal JAG/Byrne funds from municipalities that have enacted local policies to limit this communication between local police and federal immigration authorities.
However, local governments around the country have been challenging § 1373 in court. In summary, every court that has heard challenges to the DOJ’s threats to withhold JAG/Byrne funds has determined that the DOJ cannot require states and municipalities to permit their employees to share information with federal immigration enforcement, either because the DOJ lacks authority to impose a condition of compliance with § 1373 on JAG funding and/or because § 1373 itself is unconstitutional. These rulings roundly reject Trump's strategy of using federal funding as a cudgel to force local jurisdictions to comply with his agenda of mass deportation.
It is important to note that all challenges brought against municipalities by the DOJ have centered around threats to withhold funding. This indicates two vital points: there is no precedent for the DOJ challenging local law for a city that is not receiving JAG funds, and that Burlington is immune from such challenges since it does not currently receive JAG/Byrne funding, and has not since FY 2017.
Will our police department lose federal Justice Assistance Grant (JAG) funding if we adopt the Winooski version of the FIPP?
The City of Burlington’s Police Department first encountered threats to withhold JAG/Byrne funding when Mayor Miro Weinberger designated Burlington as a “sanctuary city” in 2017. Burlington has not applied for JAG funding since receiving a ~$38,000 JAG award in Fiscal Year (FY) 2017, making this threat of withholding funds fall flat in Burlington.
Despite concerns that JAG funding is supporting restorative justice programs or police department accountability tools, such as body cameras, the Fiscal Year 2017 JAG award was used entirely to purchase updated computer tablets for police vehicles.
In order to protect the important restorative justice programs funded by earlier Justice Assistance Grants (received prior to FY 2017), Former Burlington Chief of Police Brandon Del Pozo directed JAG funds into the Burlington Police Department general budget, and prescribed a new funding source for restorative justice programs that would be resilient to changes in federal JAG funding.
The City of Winooski was unable to receive JAG funding due to the § 1373 condition on the JAG certificate of compliance form. Winooski could have challenged this in court and received their funding, however, it was only a $10,000 grant, so Winooski decided not to fight it.
If Burlington were to apply for additional JAG funding (which they haven’t done in the past four years), and the federal government were to withhold those funds due to § 1373, Burlington would have legal precedent for winning those funds in a lawsuit.
For further background on federal funding concerns, the Immigrant Legal Resource Center has good materials and expertise on the matter. You can check out this 3-pager from August, 2018 and the slides from this webinar in October 2018.
What is the ACLU’s stance on this?
The ACLU fully supports our efforts to strengthen Burlington’s Fair and Impartial Policing Policy. In a letter on January 17th, 2020, Lia Earnst, an ACLU of Vermont staff attorney, urges city councilors not to let unlawful threats from the federal government stand in the way of meaningful and significant protections for the immigrant community, citing dozens of court cases that challenge the legality of the DOJ’s actions to withhold funding from municipalities and the constitutionality of 8 U.S.C. § 1373.
The ACLU of Vermont helped draft the strengthened FIPP that Winooski adopted in 2018. They are vocal advocates of this precedent being followed throughout the state. We have been in consultation with them in preparation of the proposal to the Burlington City Council.
Are the police supportive of this policy?
Although not initially supportive of this policy change, the Winooski Police Department has been operating under a strengthened FIPP for more than two years now without issue.
Former Chief Del Pozo has stated in the past that he opposed collaboration between ICE and the BPD and reportedly instructed officers to adopt an unofficial version of the policy we are submitting to the City Council. With leadership turnover in the Burlington Police Department, codifying this policy has become essential to protecting the legal interests of the Burlington community.
There is a persistent shortage of police officers in the Burlington Police Department. With limited city resources, the Burlington Police Department should be focused on more pressing public safety issues than doing the work of federal immigration authorities.
Is the City Attorney supportive of this policy?
We sent the stronger Winooski policy passed in 2018 to Eileen Blackwood, the Burlington City Attorney, several months ago, and are still awaiting her review. However, from previous conversations between Migrant Justice and the City Attorney in 2017, it is our understanding that the City Attorney will likely oppose the adoption of a stronger policy due to concerns around the policy violating 8 U.S.C. § 1373. However, local governments around the country have been challenging §1373 in court, and in summary, every court that has heard challenges to the DOJ’s threats to withhold JAG/Byrne funds has determined that the DOJ cannot require states and municipalities to permit their employees to share information with federal immigration enforcement, either because the DOJ lacks authority to impose a condition of compliance with § 1373 on JAG funding, and/or because § 1373 itself is unconstitutional. In short, every time a city has challenged the Trump administration's threats, the courts have sided with the city. But, because it is the City Attorney’s job to mitigate risk, we are not surprised by her likely position on this issue.
However, it is the responsibility of Burlington city councilors to support sound public policy and advance the legal interests of the Burlington community. The stronger FIPP is a constitutional policy that is needed to protect immigrant rights in Burlington, and we hope that city councilors will answer calls from their constituents to stand on the right side of history on this issue.
What does the support and outreach look like from local constituents?
When the FIPP was initially passed in 2017, the Burlington Police Commission conducted multiple public forums to hear Burlington residents’ opinions on adopting a Fair and Impartial Policing Policy. The results from that outreach, which were presented to the Welcoming Cities Committee in 2017 and summarized in this memo, demonstrated overwhelming community support for adopting the strongest FIPP possible to protect Burlington’s immigrant community.
Our local group, No Mas Polimigra BTV, has done systematic outreach to the Burlington community to educate people on this issue. Our group has made presentations and/or announcements at all the NPAs, organized a public forum on this issue, and contributed op-eds in VT Digger and the Peace and Justice Center newsletter.
If you have an upcoming community event that a few folks from our team can join and give an announcement or presentation at, please reach out to us at no-mas-polimigra-btv@googlegroups.com and someone from our team will get in touch with you.