[UPDATED] A Rebuttal to the Salem News Strategic Opinion on the Sanctuary for Peace Ordinance

UPDATE: From 6 p.m. until almost 1 a.m. the Salem City Councilors, Mayor Kim Driscoll, Chief Mary Butler, and hundreds of  Salem residents (mostly in favor of the Sanctuary for Peace ordinance) were all present at Bentley Elementary School throughout the course of the night, many waiting until the City Council voted to pass (or not) the ordinance, the first of two votes. The City Council voted 7-4, with a surprising vote from Councilor Steve Dibble who also voted in favor, to pass the Sanctuary for Peace ordinance in Salem, Mass. Council President Elaine Milo voted no, as did Jerry Ryan, Arthur C. Sargent III and Steve Lovely. Live feed can be seen here. Thank the Councilors who voted yes here. Below is the rebuttal to the Salem News Editorial Board opinion.

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By: TRT Editorial Staff—

The opinion written by the editorial board of the Salem News was irresponsible and filled with bias that originates from a place that can only come from ignorance and plain prejudice. The piece, strategically published today when the Salem City Council is supposed to vote on the Sanctuary for Peace ordinance, ignored factual interviews with actual immigrants, and community leaders. Instead, this Editorial Board focused on the commentary of City Councilors who are against the ordinance and don’t have a substantial or credible sources as to why they are voting against it. Only using quotes from city officials who are against the ordinance basically obliterates the immigrant community it refers to as a typical “they/them” against “we/us” without even adding a quote from anyone from the affected community or from immigrants themselves.

As City Councilor David Eppley told The Rainbow Times today, it was disappointing not to have any quotes from members of the marginalized community it refers to.

“I find it disheartening that what the Salem News is asking for is for Salem to stand up and be timid. It would’ve been nice for the Salem News Editorial Board to research the issue. It would’ve been good to [interview other councilors.] But more importantly than talking to Councilors, I didn’t see a single person interviewed that is actually affected by the Draconian immigration policies that they administration is trying to promulgate,” said Eppley in a phone interview with the LGBTQ publication. “I was disappointed not seeing anyone from the immigrant community, from the Latino community, no one spoken to by the Editorial Board. And, I know for a fact, that many members of the Editorial Board were present for a meeting [with news media] and Angela [an immigrant] told her story and there was nothing referenced about Angela’s story in that editorial today.”

Ana Nuncio, President of the Latino Leadership Coalition chimed in on the Salem News Editorial Board’s opinion.

“It’s clear that the paper has taken a position that is not unbiased, and that it reflects a conservative viewpoint that caters to a constituency who wants immigrants to ‘know their place,’ and to be continually reminded of it,” she said.

When asked about Salem News being representative of all people who live in Salem, Nuncio said, “It’s so out of step, it’s breathtaking. That’s why language minority papers are currently thriving in immigrant communities, while subscriptions to papers like The Salem News will continue to be weak. These papers don’t see immigrants in their future, and immigrants see them only in their rearview mirrors. The Salem News and its editorial board just don’t rent space in immigrants’ heads. It’s really sad for a local paper to have missed this opportunity for real community dialogue.”

With regards to their Salem News Editorial Board position, Nuncio found their opinion and timing to be deliberate.

“The Board is entitled to its opinion—and to be fair, that was an Op-Ed piece—but the prominence, placement, timing and content of the article was calculated to sabotage the proposed ordinance. Newspapers, if anything, should find ways of finding new voices, not reinforcing the status quo established by entrenched haters.”

However, to rebut the Salem News Editorial Team’s Opinion, The Rainbow Times’ Editorial Team decided to answer their statements paragraph by paragraph to ensure that all bias declarations are also properly addressed. It wouldn’t be fair to let their opinions stand as the “reigning commentary” regarding something that they are evidently against.

Salem News: “Tonight, the Salem City Council will vote on the proposed “Sanctuary for Peace” ordinance, a measure meant to reassure the city’s immigrants—including those without documentation—that they have nothing to fear from local police and other official city institutions.”

The Rainbow Times: This ordinance is not merely “meant” as a measure for reassurance to the immigrant community—that is a rather simplistic lens to view such an initiative. Through codifying police policy and the city policy in regards to how it deals with the immigrant community, it puts a municipal law into place. What does that do? It allows those who are undocumented to be able to call the police, fire department, and allows them to participate in city business without fear of retribution. By putting this into law now, it protects the immigrant community now and leading into the future, regardless of who elected officials are at the time. It protects from any potential abuse of power and bias in the coming years. It should be of no surprise to anyone that the immigrant population across the country is under attack and local government must do whatever is within their realm of control to protect this vulnerable population. We don’t need a law in five years from now. In keeping pace with the broader lens of the widespread reality for the immigrant population, we need a law now to prevent potential abuses in the future.

Salem News: “While well-intended—and in keeping with the city’s reputation as a progressive, welcoming community—the ordinance adds no new protections for immigrants living here illegally.”

The Rainbow Times: Not passing this ordinance will undoubtedly damage the city’s “progressive” reputation. The fact that this is still a contentious debate frowns upon Salem’s image in the region. Cities all across the commonwealth have already risen up in this time of duress and added sanctuary policies to protect their immigrant community. Larger cities like Boston have done it and smaller cities like Northampton, Amherst, and Cambridge, which has been a Sanctuary City since 1985, have all risen to the occasion. Sanctuary policies are not a new concept. The fact that this is still a contentious debate is inexcusable. The statement above is misleading. The ordinance would write into law the existing policies of the city. Failing to act to solidify the city’s values and procedures is a gross negligence. Currently, there is nothing in writing to prevent anyone from coming into the city 5 years from now and modifying our policies and values. This Ordinance prevents that from happening.

Salem News: “It may, in fact, increase the chances that those residents will run afoul of federal immigration officials. And, despite protestations to the contrary, it could risk millions of dollars in federal funds for the city. The City Council would do well to reject this ordinance and find other ways to be welcoming.”

The Rainbow Times: Again, this is completely misleading. Salem would not be violating any federal laws and therefore will not be in jeopardy of loosing federal funding. This is a long-time scare tactic often used by conservatives to strike doubt in the minds of the undecided. For those that have thoroughly read the ordinance and have researched the potential outcomes, benefits and downfalls know that this ordinance increases public safety, protects Salem residents, supports business and the economy, and certainly builds community.

Councilor and attorney Eppley added his professional opinion to this assessment of the Salem News.

“It doesn’t take funding away from Salem. First, we’re not violating any law so there can’t be any funding taken away. Second, Supreme Court precedence says that if you are taking away federal funds it has to be very narrowly tailored to the specific issue. That’s not the case here. With the baseless threats that have come from Washington, from the administration they are not grounded in the law and it is disappointing to see that coming from our attorney general.”

Salem News quoting a Councilor that has been against the Ordinance since day one: “We may be putting a financial target on the back of the entire city of Salem, and an individual target on every single undocumented Salem resident,” Ward 7 Councilor Steve Dibble told reporter Dustin Luca.

In response to Councilor Dibble’s statement, attorney and councilor Eppley stated “the ordinance does not put a target on Salem’s back. We’re complying with federal law under the ordinance that has been filed with the city clerk. We’re complying with federal law in all respects and we are following the procedure that our police have followed for several years. Further, we have the support of not only our current police chief but also our former police chief and state representative who both of them together have approximately 60 years worth of law enforcement experience. I rely upon our law enforcement officials to know whether or not we’re in compliance with the law. So there’s nothing on the back. In fact what we’re doing is removing the target from the back as it relates to the fear that our immigrants feel could result as a result of the federal government attempting falsely to coerce our local law enforcement officials to do something they have never done, which is to enforce federal immigration law. You don’t have to look any further than two recent Supreme Court decisions to get very easy answers to these questions. The first is Printz v. Arizona, which was written by the most conservative Justice that we’ve had, and that was Antonin Scalia. And, in fact, that Justice said and the majority of the Court said that local law enforcement is not part of the federal immigration enforcement system. Period. Dead Stop.

Eppley continued: “The other Supreme Court case has to do with federal funding and whether or not the federal government can use that to coerce local jurisdictions to do something that is against their will and is not germane to the funding that is being requested. You don’t have to look any further than the Supreme Court decision by Chief Justice Roberts regarding Obamacare. There was a requirement that the states would have to forgo Medicaid financing if they didn’t adopt Obamacare. And the Supreme Court said, ‘no you can’t, that is too much!’ And that is again another conservative Justice. My point here is that the 10^th Amendment works for not only conservatives, but for everyone.”

Ana Nuncio, President of the Latino Leadership Coalition was appalled by the Dibble’s remarks as printed by the Salem News.

“Not a single immigrant I’ve spoken to—out of nearly 60 people that we see on three different days weekly—is against the ordinance. In fact they’re disgusted by the apparent dullness and insensitivity of the questions that some councilors like Steve Dibble have repeatedly asked at neighborhood Q&A sessions,” said Nuncio. “No matter how much first-hand testimony some councilors get from immigrants, and no matter how many fact sheets they are given with specific answers to specific questions, nothing penetrates. It’s ludicrous to say that immigrants would be against the Sanctuary for Peace ordinance, that they just want to lie low and hope for the best from councilors who not only don’t represent them, but who act as enablers for some Salem residents who have only contempt for our immigrant community.  This segment of the population—the haters—firmly believes immigrants should not even be seen, let alone be heard. “

Salem News: “Dibble was referring to the more openly aggressive enforcement of immigration laws under the Trump administration. Just this week, U.S. Attorney General Jeff Sessions singled out sanctuary cities for special attention, saying they may lose billions of dollars in federal grants.”

The Rainbow Times: Under the 10th Amendment, the federal government cannot force local authorities to act as immigration officials. As a publication, the Salem News has a responsibility to thoroughly research and vet the issue before publishing such a tarnishing editorial on a topic that literally could mean the difference between life and death. Regarding the Trump administration specifically, executive orders have been overturned, ruled as unconstitutional and are often based in bullying tactics that can often not be upheld.

Salem News: “ICE (Immigration and Customs Enforcement) agents have been ordered to step up and target undocumented residents living in sanctuary cities, so how can we knowingly vote for an ordinance hurting the same people we’re trying to help?” Dibble asked.

The Rainbow Times: Through extensive work with the immigrant community via the Salem Latino Leadership Coalition, ECCO, the ACLU, and others, this statement is an “alternative fact.” It does not hurt the immigrant community. The immigrant community has expressed repeatedly that this ordinance not only necessary but essential to their daily lives in the city of Salem and around the region. It is beyond troubling that interviews from the few key councilors known to be opposed to the measure are the sources for these types of statements, and yet not one person from the immigrant community nor those working directly with them was interviewed. If they had been, a very different picture would have been painted.

Most importantly, Eppley added that [the ordinance] “is actually good for the Immigrant community. I go to the Immigrant community themselves and what they’re asking for. And our Latino and immigrant community has been resoundingly and asking and demanding that our city takes a stand. So, I am taking my lead from them. I am taking my lead from the affected community. In doing so Salem is not causing any hardship for any other resident as a result of this policy being enacted.”

Salem News: “It is a question worth asking. The Sanctuary for Peace ordinance would, among other things, essentially affirm the city’s current policy that police officers and city officials do not ask for proof of citizenship as part of their normal duties. It offers no additional protections to immigrants here without proper documentation.”

The Rainbow Times: Also, misleading. As explained above, by writing into law our policies and procedures for addressing the immigrant community when dealing with city business protect them to be able to enroll their children in our public schools, call the police or fire department in an emergency and walk into city hall to do something as basic as paying a bill. Right now, there is nothing in our local laws that solidify this. The ordinance will do that.

Salem News: “There’s nothing in this ordinance that protects people from deportation or detention,” said City Council President Elaine Milo, who told Luca she had yet to make up her mind on the proposal. “If we’re giving people false information or a false sense of security, that’s irresponsible on our part.”

The Rainbow Times: Currently the federal government deals with deportation and detention, not the local authorities. The 10^th Amendment helps to ensure that is the case. However, there are local authorities across the nation that are choosing to use their position as a way to assist the federal government in detention and deportation. Salem police do not act in that manner at this time. However, signing this ordinance into law ensures that Salem will not behave that way in the future either, regardless who is at the helm. The immigrant community is more than aware of this ordinance and is looking to the city council to take action to help protect them and their children today and leading into tomorrow. (See City of Salem Legal Department’s Q&A sheet below)

Salem News: “Passage of this ordinance also signals the city’s ignorance, if not defiance, of immigration laws. Enforcing those may not be the responsibility of the city and its police, but we certainly expect them to comply with the legitimate requests of federal authorities.”

The Rainbow Times: Based on this paragraph alone, it becomes clear that the Salem News editorial board does not have a good grasp on the ordinance in general nor the accompanying police policy. This is not an ordinance to defy it is an ordinance to protect a population that needs such protections. The ordinance does not undermine cooperation with the federal government. As a matter of fact, it refers to the police policy which indicates that it will comply when required to do so, including in cases where criminal behavior is involved. This is a gross mischaracterization of the ordinance. We must deal in facts, not “alternative facts” and certainly not myths.

Salem News: “Let us be clear: Immigrants are not the enemy. While the federal government must do a much better job of dealing with those who live illegally in this country and commit serious crimes, numerous studies show the vast majority of immigrants—including those with undocumented status—are less likely to commit crimes than people born in the United States.”

The Rainbow Times: If immigrants are not the enemy, then why wouldn’t the city do all in its power to ensure there is a local law that helps to protect and support them? If they weren’t the enemy, why does your “opinion” characterize them as such by using the word immigrants in the same sentence as you use the word enemy? Immigrants often flee their country of origin due to issues far beyond their control, often dealing with issues that mean the difference between life and death. According to the American Immigration Center, it takes between 5-10 years to immigrate into the United States—a length of time most cannot afford to wait.

Salem News: “Immigrants, including most of those here without legal permission, are not caricatures. They are our schoolmates and neighbors.”

The Rainbow Times: No, they are certainly not caricatures, yet they are being used as political pawns through fear mongering campaigns and stories meant to sway public opinion in a desperate attempt to resist change. This is a city in evolution. We have a clear case of “Old Salem” vs. “New Salem” and there is that thing that we call the “elephant in the room” as well, which we all know what it means.

Salem News: “Mayor Kim Driscoll and police Chief Mary Butler, both supporters of the ordinance, say one of the goals is to encourage immigrants to contact the police and fire department in emergencies, regardless of their immigration status. Too often, they say, those living here without legal permission think twice before calling for help out of fear they would be detained and deported.

That is troubling. But Salem officials have long made it clear that their police and firefighters do not work as an unofficial branch of ICE. There is no guarantee a new ordinance will allay that fear.”

City Councilor Beth Gerard doesn’t find anything troubling with it.

“This ordinance says that all residents, regardless of your country of origin & immigration status, are welcome to do business with the city. The police supports this because it furthers their goal of keeping Salem safe through a community policing model. And furthermore, the 10th Amendment keeps the responsibilities of the federal government separate from the responsibilities of state and local governments,” said Gerard. “75% of my constituency that reached out to me asked me to support it on their behalf for the reasons I mentioned.”

The Rainbow Times: If you have researched the ordinance and the subsequent police policy, the immigrant community’s fear is alleviated. One begs to know whose fear is not alleviated though your claims—those that need this ordinance or those that do not? (See City of Salem’s Legal Department’s Q&As below this opinion)

Salem News: “I don’t think we need a law saying ‘this is what we already do,'” Councilor-at-large Jerry Ryan said. “You don’t know what’s going to happen on a federal level. Why take that risk? And if it’s this important, why wasn’t it done before the election?”

The Rainbow Times: Once again, this ordinance does not violate federal law and therefore will not jeopardize federal funding. Councilor Ryan’s point of not “knowing what is going to happen on a federal level,” applies locally as well. Since we do not know what tomorrow will bring for our immigrant community nor who will be our elected officials in the future and if they will even choose to uphold our values and policies, that is exactly why we must act now to protect our immigrant residents and firm into law the values that Salem holds dear.

Salem News: Sessions said Monday that so-called sanctuary cities could lose federal funding if they didn’t work with immigration authorities. He also hinted that the government would come after grant money already sent to cities that refuse to toe the line.

The Rainbow Times: Salem succumbed to fear more than 300 years ago. The witch hunt is over.

Salem News: “Much of that money is used to help our neediest citizens, regardless of immigration status or background.”

The Rainbow Times: In regards to the federal funding issue, Barry Friedman, a constitutional law scholar who runs the Policing Project at NYU noted that the Tenth Amendment is on the side of sanctuary cities.

“The federal government can’t demand that state officials or local officials do their work because of the Tenth Amendment and a court precedent called Printz v. United States,” Friedman said to CNN. “That means the feds can’t require local police to collect immigration status from suspects and local officials can tell their police not to request it. So they may never have information to give in the first place.” If federal laws are not being broken, federal funds cannot be cut as a result.

Salem News: “While written in the spirit of inclusiveness, this ordinance sticks a thumb in the eye of the new administration and puts at risk $11 million a year in federal money. In practical terms, it changes little in how the city and its police operate, and it may be more damaging to those it purports to protect.”

The Rainbow Times: If the opponents of sanctuary cities are provided information that debunks the myths with verifiable facts and data and yet they continue to oppose such measures that protect our communities, then one begs to know what is really behind their opposition. Perhaps it is the same mindset that led to erasure of so many Native Americans.

In closing, to be clear, the authors of this ordinance worked closely in collaboration with immigrant community organizations, immigrants themselves, attorneys, police officials, city officials, and community organizations dedicated to social justice issues. To place the responsibility on immigrants’ backs and personal desires by alluding that they themselves are not in support of this ordinance is malicious, a falsehood, and it is a gross disservice to the residents of Salem.

It is time that the City Councilors rise to the occasion and take the first step toward protecting all of Salem residents, not a select few. They did it when they voted in favor of the Non-Discrimination ordinance and they should do it now. We cannot wait. Immigrants cannot wait. Salem cannot wait and should not have its reputation tarnished by inaction.

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City of Salem

Legal Department

FREQUENTLY ASKED QUESTIONS RELATIVE TO PROPOSED ORDINANCE AND GUIDANCE FROM MASS. ATTORNEY GENERAL 

What does the proposed Ordinance actually state?

The proposed ordinance provides:

• City services shall be available to all residents regardless of status, unless prohibited by law.
• City employees, except police officers, shall not ask for information regarding immigration status, unless required to do so by law.
• The police department policy is separate and apart from the ordinance.
• Public safety personnel shall prioritize the safety and protection of residents and visitors regardless of their country of origin.
• Public safety personnel recognize that open communication is the most effective way to ensure the safety of the community.
• The city reaffirms its compliance with IRCA in its hiring practice.
• Should any provision of the ordinance be deemed unlawful, it shall be struck, but the remaining sections shall remain in place.
• An Inclusionary Advisory Committee may be established by the Mayor to advise her on developing public awareness campaigns, working with immigrants and refugees, and ensuring that Salem remains an inclusive community.

Is the City a sanctuary city as defined by President Trump’s Executive Order 13768 and as such subject to losing Federal funding if the proposed Ordinance is adopted?

The President’s Executive Order defines a sanctuary city as one that willfully refuses to comply with the 8 U.S.C. 1373 which prohibits local governments from restricting the sharing of information with the Immigration and Naturalization Service. The order further states that sanctuary cities may be subject to the loss of Federal funding. Since the proposed City Ordinance does not prohibit or restrict the sharing of information with the Immigration and Naturalization Service, Salem will not meet the definition of sanctuary city pursuant to this Order and thus not be subject to the withholding of Federal funds.

Further, the US Supreme Court has ruled that funding can only be withheld if it is relevant “to the federal interest in the project.” In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), the U.S. Supreme Court held that legislation enacted pursuant to the spending power is much in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’s power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract,” but if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.

Must the police department comply with a Federal Detainer?

Complying with federal detainers is voluntary act. The title of the Department of Homeland Security form (I-247D) is “Request for Voluntary Action.” Detainers must be voluntary otherwise they would run afoul of the 10^th Amendment.

Courts have ruled that the 10^th Amendment to the U.S. Constitution prevents the federal government from commandeering state and local officials to do the work of the federal government. In Galarza v. Szalcyk, 745 F.3d 634 (3d Circ. 2014), the Third Circuit held that immigration detainers do not and cannot compel a state or local law enforcement agency to detain immigrants who may be subject to removal. Similarly, the Supreme Court, in Printz v. United States, 521 U.S. 898 (1997), found that the federal government cannot force local law enforcement agencies to conduct background checks on prospective gun purchasers and struck down portions of the Brady Act.

Under Galarza, the locality could not evade responsibility for an unlawful detention by arguing that it was compelled to detain the individual by federal authorities. Failure of the Salem Police Department to adhere to federal constitutional requirements under the 4^th Amendment and the Due Process Clause could open it up to civil rights liability. U.S. constitutional protections have long been held to extend to non-citizens. Yick Wo. v. Hopkins, 118 U.S. 356 (1886).

Is being undocumented a felony?

Improper Entry – Under federal criminal law, it is misdemeanor for an alien (i.e., a non-citizen) to:

• Enter or attempt to enter the United States at any time or place other than designated by immigration officers;
• Elude examination or inspection by immigration officers; or
• Attempt to enter or obtain entry to the United States by willfully concealing, falsifying, or misrepresenting material facts.

The punishment under this federal law is no more than six months of incarceration and up to $250 in civil penalties for each illegal entry. Improper entry must be proven beyond a reasonable doubt in order to convict.

Unlawful Presence – Many individuals enter the U.S. on a valid work or travel visa, but fail to leave the U.S. before their visa expires. Mere unlawful presence in the country is not a crime. It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal. An illegal alien cannot be criminally charged or incarcerated simply for being undocumented.

On March 28, the City received the following guidance from Joanna Lydgate, Deputy Attorney General, Office of Massachusetts Attorney General Maura Healey

8 U.S.C 1373:

• The federal law that AG Sessions relied on in his comments yesterday simply says that a state or municipality can’t create policies that prohibit information-sharing with the federal government regarding citizenship or immigration status.
• The connection he attempts to make to so-called “sanctuary” cities is confusing and, we believe, misguided.
• Municipalities across Massachusetts automatically share fingerprint information with the federal government upon arrest.
• Becoming a “sanctuary” or “trust” city does not change that established process. So it’s unclear what funding, if any, would be at risk.
• AG Healey has described AG Sessions’ comments as scare tactics, and has suggested that he doesn’t seem to understand the many ways in which state and local law enforcement work hand in hand with the feds to collaborate and share information when necessary to protect public safety.
• But protecting public safety also means making sure people trust the police, and that victims and witnesses feel comfortable coming forward to report crime. That’s why we believe these decisions should be made at the local level.

Threat of defunding: 

• While it’s not clear how funding could be at risk based on AG Sessions’ statements yesterday, there will definitely be litigation if the federal government actually takes steps to defund any of our cities and towns.
• As you probably know, certain municipalities in MA have already filed a legal challenge to the executive order, as have others outside MA.
• Mayor Walsh has also made clear that the City of Boston will be prepared to take legal action against the order if necessary.
• While we do not comment on potential litigation, AG Healey has already stated that she is prepared to stand with those cities and towns and to do what’s necessary to support them.

ICE detainers:

• ICE detainers are voluntary requests (DHS acknowledges this).
• That means it’s lawful for a city or town to choose not to automatically honor detainers.
• In fact, in a case currently pending before the Supreme Judicial Court (Commonwealth v. Lunn), the AGO and others have taken the position that Massachusetts law does not authorize law enforcement agencies to hold a person pursuant to an ICE detainer alone.

To be honored, an ICE detainer needs to be issued with a warrant or some other showing of probable cause, as it constitutes a new arrest.