Berkeley, CA enacts historic policing policies

Last night, the Berkeley City Council unanimously approved a historic measure ending Berkeley's cooperation with federal Immigration and Customs Enforcement officials, mere weeks after enacting groundbreaking reforms protecting privacy and dissent in the face of federally-coordinated domestic surveillance and intelligence collection efforts.

Responding to sustained pressure from the Coalition for a Safe Berkeley, the City Council declared last night that:

"The Berkeley Police Department will follow its normal rules and procedures irrespective of the immigration status with whom it comes into contact. The Berkeley Police Department will not honor requests by the United States Immigration and Customs Enforcement, ICE, to detain a Berkeley jail inmate for suspected violations of the federal civil immigration law."

The decision resulted from sustained controversy in Berkeley, and across the nation, over federal policy initiatives that co-opt local police and distract them from their core public safety mission, such as the Secure Communities Initiative (S-Comm).

Almost exactly one year ago, Santa Clara County rejected S-comm, implementing a policy that severely restricted the Santa Clara Sheriff's compliance with detainer requests. After mobilizing for the past two years to champion broad law enforcement reforms to protect civil rights undermined by federal programs, the Coalition for a Safe Berkeley (covered by Bay Area media sources including the SF Bay Guardian, Berkeley Daily Planet, ABC News, and CBS News) has secured the support of its City Council on a series of important policy reforms.

The City Council enacted many of the Coalition's proposed reforms, on September 18, particularly relating to intelligence collection by the Berkeley Police Department. Those reforms also addressed: (1) dissemination of intelligence information to the Northern California regional fusion center (mere weeks before the US Senate released a report sharply critical of fusion centers for wasteful spending and abuses of constitutional rights), (2) responses to mutual aid requests from nearby police agencies when suppressing  First Amendment activity (such as the crackdown on Occupy Oakland nearly exactly a year ago), and (3) transparency into proposed purchases of military equipment (like an armored personnel carrier whose attempted purchase by the police department the Coalition eventually blocked).

While the Council supported many of the Coalition's reform proposals in September, it continued the vote on the Coalition's proposed civil detainer policy (responding to S-Comm) until this week's Council meeting. In the wake of the Coalition's further victory last night,  Manuel De Paz from East Bay Sanctuary Covenant said:

"This...policy...protects the rights of immigrants and follows the Constitution....[it] gives faith and hope nationwide to those who struggle day by day for social justice. When a coalition like the Coalition for a Safe Berkeley finds common ground, values, and puts aside the differences and personal interests, and persists, everything can be achieved and there’s no battle that can’t be won."

S-comm is a much-criticized program under which local police departments send fingerprints to FBI and ICE for inclusion in federal biometric (e.g., fingerprint) databases. Once this occurs, ICE can request most local law enforcement agencies to then detain anyone suspected of an immigration offense to be transmitted to ICE's custody, even before being adjudicated for any criminal offense.


S-comm has been criticized for a variety of reasons. It decreases community safety as police become equated with immigration enforcement, thus leading to a lack of willingness to call the police or assist in community policing or investigations. The federal government has stated that S-comm is aimed at “criminals” but according to Immigration and Customs Enforcement’s (ICE) own numbers, 79% of deportees under S-Comm had no criminal records, or had been picked up for low-level offenses such as traffic violations. In California alone, almost 80,000 deportations have taken place.

S-comm was also originally touted as a voluntary program, before the federal government later made it clear that it was, in fact, mandatory even for localities that wanted to opt-out. Finally, even without any of its other flaws, S-comm is problematic because it streamlines the detention and deportation process so much that even US citizens often get mistakenly deported.  The FBI and the Los Angeles County Sheriff are each facing separate lawsuits for wrongful detention.

Manuel De Paz with East Bay Sanctuary Covenant pointed out that a Public Records Act request showed that BPD was detaining and transferring people every month.

The policy recommended by Chief of Police Michael Meehan would have allowed the department to honor detainer requests targeting individuals who have been convicted of serious or violent felonies in the past. Unlike the Santa Clara policy, it did not require reimbursement from the federal government, or exclude minors. The Chief stated that his policy focused on "dangerous people", noting that:

"...there are going to be times when we are going to release someone when we don't want to release them."

As written, the prior policy thus allowed the Police department to get around the requirement of releasing individuals when they otherwise must under the criminal law procedures mandated by the Constitution.

Regarding the notion that complying with ICE detainers under the policy was a matter of public safety, members of the community made it clear that S-comm allows for detention and deportation of people without regard to any proven current wrongdoing, based solely on their history and what they were arrested for. Regardless of the language used by the Chief of Police referring to "dangerous people", it was clear that  individuals would be held under criminal law if there were sufficient cause. Detainers simply create a way to short-circuit this process.

Initially, it appeared that City Council was swayed by the Chief's argument that the policy as written would solely lead to detention of dangerous individuals.  However, as the conversation went on for over an hour, it became clear that the Council was deeply perturbed by the idea of treating individuals differently based solely on past convictions and their immigration status as reported by a database. In fact, Councilmember Daryl Moore made it very clear that simply because people had prior convictions they:

"...ought not to be viewed as some seething cauldron of potential criminality."

Questions from Councilmember Linda Maio and other members focused on why city policy should not simply be immigration blind, and treat everyone the same. Councilmember Jesse Arreguin emphasized that:

 "...we are dealing with the consequences of a flawed federal program."

After much deliberation, the Council questioned why Berkeley Police Department would honor any detainer requests, regardless of what someone had been arrested for. In the end, it was clear that their commitment to respecting the due process rights of all was strong.

Berkeley's policy is now one of the strongest stances against S-comm in the country. The Berkeley City Council has made a significant step towards creating a true sanctuary city, and demonstrating for other cities how to protect the civil rights of their residents in the face of a rising tide of federal abuses.

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