How Chicago Could Beat Trump in Court

Originally published in VICE on August 9, 2017.
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For months, Donald Trump has been fueling panic about Chicago’s crime rate, repeatedly threatening to use his power as president to “send in” federal troops to deal with the scourge of homicides plaguing the city.

On Monday, Chicago made its own power move.

The city filed a federal lawsuit against the Trump administration in an effort to stop the Department of Justice, led by Trump’s frenemy Jeff Sessions, from punishing Chicago for its status as a so-called “sanctuary city.” In defending the lawsuit on CNN, Mayor Rahm Emanuel stressed that forcing his city to choose between its values and the police department’s community policing philosophy is “a false choice” that “undermines our actual safety agenda.” Going after Trump and Sessions over policing is also likely a welcome change for Emanuel, who has drawn harsh fire for Chicago’s police brutality and persistently high violent crime.

The lawsuit centers on a federal grant, the Edward Byrne Memorial Justice Assistance Grant—or Bryne JAG—used by state, city and tribal governments to support law enforcement. In July, Sessions—a longtime foe of undocumented people—took his first real step to crack down on sanctuary cities when he announced that he would be imposing new conditions on localities that want to receive cash from the Bryne JAG.

Chicago’s lawsuit alleges that these new conditions—which empower the feds to interrogate arrestees at local jail facilities, and require local law enforcement officials to detain individuals longer than justified by probable cause—are “unauthorized and unconstitutional.” Meanwhile, the city received $2.3 million from the Bryne JAG last year.

While Sessions has already responded to Chicago’s legal challenge by saying that the Windy City “has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system,” a number of legal experts have argued the lawsuit’s central claims actually rest on sturdy shoulders. George Mason Law School professor Ilya Somin told me that while it’s not unusual to see a presidential administration attempt to finagle grant conditions, he’s “not aware of a case as blatant as this one where the executive branch just seems to make up conditions on its own, and doesn’t even have a minimally plausible argument that they were included in the bill Congress passed.”

Likewise, Phil Torrey, an attorney focused on the intersection of criminal and immigration law at the Harvard Immigration and Refugee Clinical Program, thinks Chicago’s suit has some real muscle. Here’s what he had to say about the latest major lawsuit against the Trump administration, and how this saga might play out from here.

VICE: What do you make of Chicago’s new lawsuit? Is it viable? 

Phil Torrey:
 I think Chicago feels like they’ve been backed into a corner as they anticipate potentially losing JAG funding. They make a number of claims—on statutory and constitutional grounds—and I’d say both have a good deal of merit.

What are some of the stronger claims?

Well there are a few. One is Chicago’s spending clause claim: Basically what the city is saying is that the executive agency responsible for administering these federal grants cannot impose additional restrictions on those funds without congressional approval. And in this instance, Congress has not given any authority to the DOJ to impose the kinds of restrictions Sessions is advocating for. I think that’s a pretty clear, straightforward argument.

I also think the city of Chicago and other municipalities are currently in compliance with federal law, specifically Section 1373 [a federal statute that bars local governments from restricting the sharing of immigration status information with ICE agents]. If you look closely at their “sanctuary” policies, you’ll see they don’t have rules that restrict the sharing of this information. I think the DOJ is incorrectly construing those policies to claim cities are running afoul of the law.

But if Chicago is arguing the DOJ needs congressional approval to condition federal funds, couldn’t the GOP-controlled Congress just go ahead and do that, and effectively render the lawsuit moot?

Yes, Congress could attempt to pass some legislation that would further restrict JAG funding, but that hasn’t been done yet. There could be other constitutional challenges to that kind of statute, but as it stands, that specific enabling language to allow the DOJ to pass new restrictions has not been approved.

One complicating factor is that the Bryne JAG is related to public safety, and Congress can’t impose its will on municipalities in a way that would force them to implement new public safety measures. Constitutionally, public safety is completely within the purview of a city or county or state, and Congress could arguably be overstepping its authority if it passes legislation that forces these localities to do something that they believe harms their public safety.

Do you think other local governments will follow Chicago’s lead, as some reports suggest they are considering?

You’ve got city, county, and state law enforcement officials all serving different roles within the realm of public safety, and some of these new conditions placed on the Bryne JAG funding affect those players in different ways. You could definitely imagine multiple levels of local government filing claims—either in conjunction with Chicago or separately against the DOJ.

Can’t the administration argue—with some merit—that the federal government has broad discretion over immigration policy?

This is actually being framed more as a public safety issue than an immigration enforcement issue. And when you’re operating within the realm of public safety, then states and localities have full constitutional authority to enact and enforce policies that they see fit. Municipalities are saying, “Wait a minute—public safety is our realm to operate in. You can go ahead and enforce immigration laws. Do what you need to do, but don’t come in here and tell us how to do public safety.”

As this case winds its through the courts, what should we be looking out for next?

Hundreds of municipalities have decided that the best way to police their communities is by separating their public safety enforcement from immigration enforcement. If we move to entangle them, it may have a chilling effect that could really harm community systems.

I think this case illustrates that the administration is putting a target on states, counties, and municipalities that have these types of [community policing] policies—considering them somehow against federal law. Essentially what the DOJ is doing is saying, “We’re going to substitute your own views on what’s best for your communities with our views.”

You effectively have a federal government attempting to force municipalities to change their policies, which is actually contrary to how you’d expect a traditional Republican, conservative government to act. Normally you’d expect to see conservatives favoring local autonomy and disfavoring federal overreach. That’s not what’s happening.

This interview has been lightly edited and condensed for clarity.

Baltimore Is Finally Doing Something About Its Notorious Police Force

Originally published in VICE on January 12, 2016.
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The city of Baltimore and the federal government unveiled the terms of a sweeping 227 page consent decree Thursday morning, a legal document mandating reforms to the local police force. The deal emerged 21 months after 25-year-old Freddie Gray died while in police custody in April 2015, and five months after a scathing Department of Justice report alleged a litany of unconstitutional, racist, and just plain mean-spirited policing practices in Charm City.

“Through this agreement, we are moving forward together to heal the tension in the relationship between BPD and the community it serves,” US Attorney General Loretta Lynch said at a press conference in the city. “The agreement is robust and comprehensive,” she added, emphasizing that it was negotiated to ensure effective policing, restore the community’s trust in law enforcement, and advance the public and police officers’ safety.

Like 14 similar deals currently being enforced on law enforcement jurisdictions across America, the Baltimore consent decree lays out a number of new rules and systemic changes. Among other things, it calls for a community oversight task force to recommend tweaks to the current civilian oversight systems, insists on respect for individuals’ First Amendment rights to protest and monitor the police, imposes guidelines on proper use of force and transport of people in custody, protocols on constitutional stops, searches, and arrests, requirements for annual “community policing” trainings for all officers, and new procedures for conducting sexual assault investigations. While the BPD has moved to implement some of these reforms already—which the decree acknowledges and commends—Baltimore now has a legal tool to help cure what critics believe is a broken culture of often-brutal policing.

The deal also represents one of the last chances for the Obama administration’s activist Justice Department to leave its fingerprint on the American criminal justice system—and to rein in rogue cops at the center of Black Lives Matter protests. The only question is how aggressively a new, “law and order” happy White House under Donald Trump will enforce it.

The Baltimore City Fraternal Order of the Police, the local police union, quickly issued a critical statement after news of the decree broke Thursday, bemoaning the fact that they were not included in the negotiations. “Despite continued assurance by representatives of the Department of Justice that our organization would be included in the Consent Decree negotiations, no request to participate was ever forthcoming and we were not involved in the process,” the statement said. “As we were not afforded an advance copy of the agreement, neither our rank and file members who will be the most affected, nor our attorneys, have had a chance to read the final product and, as such, we will not have a comment now. Be assured, however, that a response will be forthcoming at the appropriate time.”

Police unions in other cities have worked to block reform efforts through their collective bargaining agreements, and Baltimore activists say they are bracing for similar resistance from the local FOP. The Baltimore police union has opposed reforms to the Law Enforcement Bill of Rights, which governs how officers accused of misconduct are treated in Maryland. Some activists say the statewide law stands as the city’s biggest barrier for meaningful police accountability and transparency.

In October, for its part, the Baltimore FOP issued its own recommendations for inclusion in the consent decree, calling for things like increased whistleblower protections, more cops, and technology upgrades.

During his confirmation hearings for US Attorney General this week, Alabama US Senator Jeff Sessions expressed skepticism about using consent decrees to force change in police departments. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness,” he said. Sessions also once wrote that court-ordered consent decrees were “undemocratic” and “dangerous,” which taken with his more recent comments has served to send a chill down the spine of police reformers nationwide.

Still, Outgoing Attorney General Lynch assured the public at Thursday’s press conference that the consent decree “will live on past this administration.” After all, it is court-enforceable and there will be an independent monitor overseeing the agreement.

But Lawrence Brown, an assistant professor of public health at Morgan State University, told VICE he has “no faith in Trump’s folks, especially if it’s Beauregard Sessions” and that he expects the police union to oppose key elements of the agreement. “Other means will have to be utilized to ensure this is enforced,” he said, pointing to ongoing efforts to change or repeal the Law Enforcement Bill of Rights.

Meanwhile, DeRay McKesson, a Black Lives Matter national activist and administrator in the Baltimore City Public School system, praised the agreement on Twitter for its scope, and noted that it’s the first consent decree he’s ever seen to include school police.

 

Skepticism that the new administration will hold local cops’ feet to the fire abounds, however. One member of Baltimore Bloc, a grassroots group focused on police reform, told VICE that she and her fellow activists have no confidence in a Trump DOJ to enforce the consent decree, even if they had their doubts about enforcement under a Hillary Clinton DOJ, too. “I think Baltimore Police is going to resist it all the way, FOP’s statement is already obstructionist as hell, and it was the police gleefully violating people’s rights that got us here,” the activist said.

The city has been under pressure to finish the consent decree before Inauguration Day. That’s because once the agreement is finalized—it still needs court approval—a federal judge will be empowered to enforce it, no matter who is president or US attorney general. Still, legal experts generally agree that if the police department or city political leadership fail to follow through on the terms of the agreement, it will be up to Trump’s Department of Justice to take them to court to compel change