The latest immigration debate over a City Hall general order has a few New Haven Police Department officials up in arms.
Last Friday, two Yale Law School students and one community organizer visited the NHPD to reaffirm General Order 06-2, a December 2006 directive that instructs police officers to enact a “don’t ask, don’t tell, don’t arrest” policy when dealing with undocumented immigrants who are not facing criminal charges.
The encounter drew the ire of officials in the NHPD union Local 530, who said the students’ latest affirmation of the order was inappropriate, and inspired renewed calls from the union for the general order’s retraction.
In response, Mayor John DeStefano Jr. apologized to Local 530 police union president Cavalier on Saturday for the encounter, Community Watchdog Project Chief Strategist Dustin Gold said.
On its face, the recent disagreement could be a simple repeat of previous public debate. Just as he did last December and again in a New Haven Register article on Saturday, Cavalier said he does not want the order to cause officers to neglect federal law. And just as they did last year, immigrants-rights advocates and lawyers said the order is legal and contributes to public safety.
In the wake of Friday’s confrontation, and with the anti-illegal aliens group Community Watchdog Project now advising the police officers’ union on the order’s legality, the debate could take on a new form.
But actors on both sides of the debate disagree on whether the episode will intensify friction between City Hall and the police union over the order’s legality.
Gold said he plans to “rat the mayor out” to the public and the federal government about the ways the general order violates federal law. But Yale Law School professor Michael Wishnie ’87 LAW ’93 said nothing significant happened last week, as Local 530 leadership has always publicly opposed the general order.
Cavalier on Friday expressed concern that NHPD officers may be sued for violating federal law. But Wishnie, who helped develop the order, said the law promotes public safety by building trust between local officials and immigrant communities. Local officials are busy enough with their own responsibilities and do not have the training required to enforce federal immigration law, he said.
‘We’d like a murder’
CWP has been corresponding with Local 530 in the last few weeks over the general order’s federal legality, Gold said. Within hours of telling a reporter that police officers had been reporting crimes committed by undocumented immigrants to CWP’s hotline, he said, Yale student lawyers entered the police station to reinforce the General Order.
Gold said thus far CWP’s hotline has collected nine reports of crimes committed by undocumented immigrants, but they are waiting for a serious crime to occur before releasing the information to the public.
“We’d like a murder,” he said. “We’d like at least one murder and hopefully in a case where it was committed by an illegal that was deported to ICE but released back to the public.”
But Wishnie said he knew very little about the hotline or whether it even really exists.
According to Saturday’s Register article, the Friday confrontation was “prickly” and “deteriorated” after the two Yale Law students and immigrant-rights advocates began to address the morning police lineup.
“If they want to go over the general order, they should have sent corporation counsel, Emmet [Hibson] or the chief himself, not bring some kindergarten students in that are going to tell our police officers what to do,” Cavalier is quoted as saying in the Register article.
Cavalier could not be reached after multiple requests for comment.
Gold said that after the front-page Register article publicized the “flare-up,” DeStefano contacted Cavalier to discuss the general order and to apologize for the Friday encounter between officers and the two Yale Law students and community organizer.
“Mayor John DeStefano contacted the Union President, Lou Cavalier, at 9 a.m. [Saturday] and was very concerned about any controversy,” Gold said. “The mayor has agreed to have a meeting with the Union to discuss [the] general order…the mayor apologized to Lou [Cavalier] and said that it shouldn’t have happened, and shouldn’t happen again.”
City Hall spokeswoman Jessica Mayorga said she could not confirm DeStefano’s correspondence with Cavalier because she had not yet conferred with the mayor about the issue.
The Yale Law clinic students said they did not wish to comment on last week’s events.
The Bloomberg model
While police officers can run background checks on individuals using the FBI’s National Crime Information Center database and view confidential information such as sexual orientation or immigration status, the general order restricts the disclosure of such information and the enforcement of non-criminal immigration warrants in the database.
Opponents said the order violates federal statute 8 U.S.C. § 1373 (a), which makes it illegal for an individual or agency to prohibit local, state and federal governments from exchanging information regarding immigration status.
Wishnie, who provides legal counsel to City Hall in regards to the municipal ID card program, said the order’s “don’t ask, don’t tell” policies are modeled on New York City Mayor Michael Bloomberg’s 2003 executive order, which mandated similar non-cooperation with federal immigration authorities. The order’s “don’t arrest” policies follow in the footsteps of the Houston police department, he said.
In August, two CWP members signed a letter to DeStefano condemning the order.
The letter also referenced an Aug. 18 Bill O’Reilly article, which said New Haven’s general order “is outrageous, and verges on anarchy.”
“New Haven officials have violated Federal Statute 1373(a), and if Attorney General [Alberto] Gonzalez still has an office, he should prosecute them,” O’Reilly wrote.
But the federal statute cited by the general order’s opponents has its own flaws, Wishnie said.
The constitutionality of 1373 first came into question in 1996, when New York City’s then-mayor, Rudy Giuliani, filed suit against the U.S. government, arguing 1373 infringed on the 10th Amendment’s guarantee of local government autonomy. At the time, Giuliani’s Executive Order 124 mandated that police enforce a “don’t ask, don’t tell” policy regarding immigration status.
Dictating rules governing municipal employees detracted from the city’s local responsibilities to ensure safety, Giuliani said, and violated the Tenth Amendment and the Constitution’s Guarantee Clause.
But Giuliani lost the case in the U.S. Court of Appeals for the 2nd Circuit in 1999. The second circuit noted, however, that application of Section 1373 to a more broadly-drawn confidentiality policy might well violate the tenth amendment.
In other words, Giuliani’s order needed to protect other forms of confidential information besides immigration status in order to win the suit.
Based on the precedent of Giuliani’s lawsuit, Bloomberg’s and DeStefano’s orders are legal because they protect various types of personal information and therefore fit within the constitutionally protected space noted by the 2nd Circuit, Wishnie said.
No one has sued New York or New Haven, Wishnie said, or any other city that has adopted similar confidentiality orders. In the event that someone does file suit, he said, 1373 rather than the general order would likely be struck down.
“If someone tried to bring a lawsuit saying the ‘don’t tell’ portion is illegal because it violates 1373, I believe the 2nd Circuit would say, ‘No, 1373 itself violates the Constitution, it violates the 10th Amendment,’ ” Wishnie said.
Gold said the union has called in lawyers to determine whether a lawsuit challenging 1373 is legally feasible, as well as whether the mayor had the power to issue the general order in the first place.
It is also unclear for now whether the general order should be considered a city law, since the Board of Aldermen never ratified it, he said.
The mayor’s public advocacy of the general order and the city’s municipal ID card program may also be violating Title 8, U.S.C. § 1324, which prohibits individuals and employers from “bringing in and harboring aliens,” Gold said.
“The fact that Mayor DeStefano promoted it with a bilingual press conference basically encouraged illegal aliens to reside in the U.S.,” he said. “By promoting it you’re actually encouraging them to stay there by giving them a false sense of security.”
In 2005, Yale Law students at the Workers and Immigrants Rights Advocacy Clinic released a report titled “A City to Model,” which sought to promote public safety and improve relations between immigrant communities and the City of New Haven.
The general order and the municipal ID program were two proposals in the report.