[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
NEW ORLEANS: HOW THE CRESCENT CITY BECAME A SANCTUARY CITY
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HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 27, 2016
__________
Serial No. 114-96
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Immigration and Border Security
TREY GOWDY, South Carolina, Chairman
RAUL LABRADOR, Idaho, Vice-Chairman
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois
KEN BUCK, Colorado SHEILA JACKSON LEE, Texas
JOHN RATCLIFFE, Texas PEDRO R. PIERLUISI, Puerto Rico
DAVE TROTT, Michigan
George Fishman, Chief Counsel
Tom Jawetz, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 27, 2016
Page
OPENING STATEMENTS
The Honorable Trey Gowdy, a Representative in Congress from the
State of South Carolina, and Chairman, Subcommittee on
Immigration and Border Security................................ 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration and Border Security................................ 4
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 6
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 8
WITNESSES
The Honorable Jeff Landry, Attorney General, Louisiana Department
of Justice
Oral Testimony................................................. 10
Prepared Statement............................................. 13
The Honorable Michael E. Horowitz, Inspector General, U.S.
Department of Justice
Oral Testimony................................................. 16
Prepared Statement............................................. 18
The Honorable Vanita Gupta, Principal Deputy Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Zach Butterworth, Executive Counsel and Director of Federal
Affairs, Office of Mayor Mitchell J. Landrieu, City of New
Orleans
Oral Testimony................................................. 30
Prepared Statement........................................32
deg.OFFICIAL HEARING RECORD
Unprinted Material Submitted for the Hearing Record
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration and Border Security. This material is
available at the Subcommittee and can also be accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105392
NEW ORLEANS: HOW THE CRESCENT CITY BECAME A SANCTUARY CITY
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TUESDAY, SEPTEMBER 27, 2016
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10:07 a.m., in
room 2141, Rayburn House Office Building, the Honorable Trey
Gowdy (Chairman of the Subcommittee) presiding.
Present: Representatives Gowdy, Goodlatte, Labrador, Smith,
King, Buck, Ratcliffe, Lofgren, Conyers, and Jackson Lee.
Also Present: Representative Richmond.
Staff Present: (Majority) George Fishman, Chief Counsel;
Tanner Black, Clerk; and (Minority) Gary Merson, DHS Detailee.
Mr. Gowdy. Good morning. Welcome. The Subcommittee on
Immigration and Border Security will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time. We welcome everyone to
today's hearing, entitled New Orleans: How the Crescent City
Became a Sanctuary City.
I will recognize myself for an opening statement and then
my friend from California. I will introduce the panelists en
banc and then recognize you individually for your opening
statements.
It is as close as I will ever come to being a judge, but
there we have it.
Time and time and time again, our Nation has witnessed the
tragic consequences of this Administration's failure to enforce
immigration law. Witnessing these tragedies is unsettling
enough, but it pales in comparison to the grief and the anguish
and the separation experienced by the families of those
victimized.
But, today, we are not here merely to discuss the failure
to enforce the law. It is even more disconcerting than that. We
are here today because the Department of Justice, the entity
that is supposed to be the chief enforcer of the law, is aiding
and abetting local governments in the failure to enforce the
law. Once again, the temptation to make a political point has
transcended the obligation to take care that the law be
faithfully executed.
Under current policy, the New Orleans Police Department
prevents its officers and employees from communicating with
U.S. Immigration and Customs Enforcement regarding the
immigration status of an arrestee.
In May of 2010, New Orleans Mayor Mitchell Landrieu sent a
letter to then Attorney General Holder requesting DOJ
``transform the New Orleans Police Department.'' Based on the
Department of Justice report, current Labor Secretary, then
Civil Rights Division head, Thomas Perez, filed a lawsuit
against the city of New Orleans and the police department
alleging various civil rights violations.
On the basis of that lawsuit, the parties entered into a
consent decree in 2012, which was approved by a Federal court
in 2013. This consent decree stated the New Orleans Police
Department officers, ``shall not take law enforcement action on
the basis of actual or perceived immigration status, including
the initiation of stops or other field contacts.''
Now, let me read the salient part of that again: Police
officers shall not take law enforcement action on the basis of
actual immigration status.
And on February 28, 2016, New Orleans Police Department
issued a written policy, entitled ``Immigration Status,''
which, number one, prohibits officers from inquiring about an
individual's immigration status; number two, prohibits officers
from assisting or supporting ICE'S immigration enforcement; and
number three, mandates any ICE request for support or
assistance be declined.
The New Orleans Police Department policy was not only
vetted but, ``enthusiastically'' approved and supported by
DOJ's Civil Rights Division. It was also reviewed and approved
by DHS. The Department of Justice and Department of Homeland
Security enthusiastically approve and support failure of law
enforcement to take note of Federal immigration laws.
In addition to being mind-numbingly antithetical to the
faithful execution of the law, which is among the primary
responsibilities of the executive branch, this New Orleans
policy statement appears to violate section 8 U.S.C. code,
1373, which provides no person or agency may prohibit or
restrict a Federal, State, or local agency from sending,
requesting, receiving, or exchanging information with ICE
regarding unlawfully present aliens.
On May 28 of this year, Chairman Goodlatte sent a letter to
now Attorney General Lynch demanding that she explain DOJ's
role in initiating litigation against the city of New Orleans
and the resulting consent decree and provide the legal
justification for approving the sanctuary policies enacted by
the police department.
On May 31 of this year, DOJ Inspector General Michael
Horowitz issued a memo to the Assistant Attorney General for
Justice Programs in response to a request to investigate
allegations that over 140 State and local jurisdictions
received DOJ grant funds, and they may be in violation of
Federal law. Specifically, the inspector general was requested
to investigate allegations of the 140 jurisdictions who are
recipients of funding from the Department of Justice are in
violation of title 8 U.S.C., section 1373.
For those of you who may be struck by the duplicity of the
chief Federal law enforcement entity providing grant money to
State and municipalities who specifically fail to assist in the
enforcement of Federal law, you are not alone. The inspector
general found the laws and policies in several jurisdictions go
beyond regulating responses to ICE detainers and also address,
in some way, the sharing of information with Federal
immigration authorities.
After specifically reviewing the language of the New
Orleans Police Department policy, the inspector general found,
and I quote: In our view, subsection (a) of the NOPD policy
would not serve as a `savings clause' in addressing section
1373. Thus, unless the understanding of NOPD's employees is
that they are not prohibited or restricted from sharing
immigration status information with ICE, the policy would be
inconsistent with Section 1373.''
On July 7, DOJ's Office of Justice Programs determined
section 1373 is, ``an applicable Federal law for purposes of
determining statutory eligibility for relevant DOJ grant
funding.'' Yet despite the requirement of section 1373, DOJ
awarded the police department of New Orleans approximately $2
million in grants for fiscal year 2015.
That very same day, July 7, DOJ responded to Chairman
Goodlatte's letter. They outlined the policy, but they failed
to explain how the New Orleans' policies are lawful, which was
a pretty important part of the letter in the first place.
Then, last Friday--last Friday--September 23, just a few
days after our hearing was announced, we received a letter from
the Department of Justice claiming the revised policy the New
Orleans Police Department had issued did comply with 1373.
However, this revised policy makes no mention of part B of
section 1373. And in addition, DOJ has not provided this
Committee with any indication of how officers will be trained
to implement this revised policy or how seemingly minor changes
to the text will ensure New Orleans will not be operating as a
sanctuary city, which leads us to why we are here today.
Not only does this place ICE agents and officers at greater
risk when they are forced to arrest criminal aliens who are no
longer in a secure jail facility, but instead, in public
places, where they can more readily escape or access a weapon,
but it also prevents officers from accomplishing their ultimate
goal, which is public safety. We already know there are cities
more interested in providing sanctuary for criminals than safe
haven for our very own citizens. We know there are cities who
clamor for the Federal Government to assert itself into matters
that are not inherently Federal in nature but refuse to assist
Federal law enforcement in matters that actually are inherently
Federal.
And to put this in terms that almost anyone can understand,
State and local law enforcement can be trusted to provide
security for Members of Congress both here and in our home
districts. They can be entrusted to enforce murder laws, child
sex laws, kidnapping laws. They can participate in Federal task
forces on terrorism and narcotics trafficking, but God forbid
they lift a finger to assist in the enforcement of Federal
immigration laws.
But for the Department of Justice to go as far to seek a
consent decree to actually inhibit the ability of the Federal
Government to enforce Federal law is stunning, even for a
Department of Justice that has, unfortunately, become
increasingly politicized. The consent decree can be interpreted
to require New Orleans adopt policies that require its officers
to actually violate Federal law.
Let me repeat that one more time: This Administration's
Department of Justice is actually requiring New Orleans police
officers to break the law in an effort to further their
political agenda.
We have had multiple hearings on those that have been
victimized by sanctuary cities. We have heard from their
families. We are well aware of the tragic consequences. This is
not a theoretical conversation in some law school conference
room. This is real life with real victims and real grieving
family members. Illegal immigration is not a victimless crime.
Once you weaken the law, you weaken it forever, and once
you put politics above the blind application of the law, it is
done forever. And once you decide State and local law
enforcement are good enough to protect us when we are back home
in our districts but not good enough to be trusted to assist in
the execution of the law, good luck in reversing that.
With that, I would recognize the gentlelady from
California.
Ms. Lofgren. Thank you, Mr. Chairman. Today, we are again
devoting time to what the majority calls sanctuary cities. It
is ironic that my Republican colleagues today argue against
local policies in favor of a top-down mandate from Washington.
It is a question why the majority believes that it knows better
than several hundred State and local police departments across
the country that have embraced community trust policing
policies precisely because they believe that approach makes us
all safer. And for the Republicans to question the need for
good community policing approaches at this moment, when reports
of tragic police shootings dominate the news, seems
nonsensical.
The fact is we could have addressed the Republican concerns
with sanctuary cities and many other immigration matters if we
had devoted time spent on polemics and diversions instead of to
fixing our broken immigration system through comprehensive
reform.
When it comes to so-called sanctuary cities, this is what
Richard Biehl, the police chief of Dayton, Ohio, not a place
many think of as a sanctuary city, said over a year ago, when
he testified before the Judiciary Committee, ``These policies
allow us to focus our limited resources on our primary mission,
crime solving and community safety. They also send a message
that victims of violent crime, human trafficking, and other
crime should never be afraid to reach out for help due to fear
of the immigration consequences.''
I note that in the Department of Justice report
investigating the New Orleans Police Department dated March 16,
2011, it said, ``Minority groups nearly uniformly said that the
police rarely reach out to them for any purpose.'' One member
of a Vietnamese community organization reported that, ``A lot
of young Vietnamese people who get shot in this community, we
know who shot them, but the New Orleans police won't do
anything. They don't talk to us. They don't build community
relationships.''
I agree with Chief Biehl, and I know from my experience as
a county supervisor and Member of Congress that law enforcement
and local officials can work cooperatively with community
groups and the Federal Government to come to a consensus
position that preserves community policing and prioritizes
serious criminals for immigration enforcement and removal.
I also agree with Secretary Johnson's prior statements to
this Committee that imposing Federal mandates on local law
enforcement by withholding funds would be a huge setback in
efforts to improve the relationship between DHS, State, and
local law enforcement, and communities around the country.
With respect to New Orleans, the context, like most things
in the Big Easy, is a little bit different. Upon taking office,
Mayor Landrieu requested the Department of Justice Civil Rights
Division engage in a review of the police department. He
recognized that a history of civil rights violations by the New
Orleans Police Department had undermined trust with the
community and reform was necessary.
Of course, the vast majority of New Orleans Police
Department officers honestly and conscientiously performed and
continued to perform their duties. But I hope that my
Republican colleagues are not here to defend the actions of a
few that caused such great harm over the years in New Orleans.
The history of abuse by the department has been well
documented. The facts are incontrovertible. Under Mayor
Landrieu and Superintendent of Police Michael Harrison with the
support of the Department of Justice and working with the local
community, New Orleans entered into a consent decree and has
adopted a bias-free policing policy. The policy ensures that
immigrants can report crimes and serve as witnesses without
retribution. It also makes clear that information regarding the
citizenship and immigration status will be shared with Federal
immigration authorities when required by Federal or State law.
Out of an abundance of caution, New Orleans has been
working with the Justice Department to revise this language to
guarantee its compliance with applicable Federal laws. We now
have this revised policy in place. These policies, while not
self-identified as sanctuary city polices, are examples of
smart, effective community policing tailored by and for the
communities in New Orleans.
Many are hopeful that this hard work, done collaboratively
with the department and community groups, sets New Orleans on a
path to safer streets and better police relations with citizens
of all backgrounds. But here comes the Republican Congress to
the rescue. They are questioning the legality of a policy that
has already been revised to ensure that it is in compliance
with Federal law.
Members who have had nothing to do with New Orleans are
here to tell the local police and civil leaders how to do their
job, even though the New Orleans Police Department says the
Republican approach will undermine public safety and make their
jobs harder. They are pursuing a line of argument that
jeopardizes critical funding, which supports public safety,
community policing, and crimes victims services.
With all due respect, I say to my colleagues on the other
side of the aisle: let's let local law enforcement and the
elected officials in city government do their job, and we
should focus on ours. In this Congress, we have gone to the
floor to vote on bills to deport DREAMers, to deport the
parents of U.S. citizens, to deport vulnerable children fleeing
persecution and sex trafficking, and to halt refugee processing
amidst the civil war in Syria that has displaced millions.
Thankfully, these proposals have ultimately gone nowhere,
but we had the votes to pass comprehensive immigration in the
last Congress. The bipartisan bill passed in 2013 would not
only have grown our economy, help to shrink our budget deficit;
it would have made our communities safer. Bringing people out
of shadows and putting them on a path to citizenship would have
further enhanced public safety.
If the Republican leadership had given comprehensive
immigration reform the same opportunity for a vote that all of
these other measures have received, it would be the law today.
So let's do the people's business, work to pass immigration
reform, and I thank the Chairman.
I yield back the balance of my time.
Mr. Gowdy. The gentlelady yields back.
The Chair will now recognize the gentleman from Virginia,
the Chairman of the full Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this important hearing.
Sanctuary cities refuse to cooperate with U.S. Immigration
and Customs Enforcement in its enforcement of Federal
immigration laws. The proliferation of sanctuary cities has
resulted in thousands of criminal aliens being released into
our neighborhoods to commit more crimes. Sanctuary cities
violate Federal law. Two decades ago, Congress enacted a
provision, title 8, section 1373, designed specifically to
prevent jurisdictions from enacting policies that prohibit
their employees from sharing information with ICE about
illegally present or criminal aliens.
There are more than 300 sanctuary jurisdictions in the
United States. One of these is the city of New Orleans. In
2010, the current major of New Orleans invited the Department
of Justice to review the policies of the New Orleans Police
Department, apparently in part to transform New Orleans into a
sanctuary city. Former Attorney General Eric Holder, former
Assistant Attorney General for the Civil Rights Division Thomas
Perez, now Secretary of Labor, and the mayor appear to have
colluded to have the Department of Justice file a lawsuit
against the city, and then have DOJ and the city enter into a
settlement agreement or a consent decree that would forbid the
New Orleans Police Department from cooperating with ICE.
The resulting consent decree actually required the New
Orleans Police Department to develop a plan that prohibited
officers from taking any enforcement action based on an
individual's immigration status. In February of this year,
pursuant to the consent decree, the New Orleans Police
Department issued a policy prohibiting officers from inquiring
about an individual's immigration status.
More troubling, it generally prohibited officers from
assisting or supporting ICE'S immigration enforcement, and it
required officers to decline all ICE requests for support or
assistance. Thus, New Orleans could claim that DOJ's heavy hand
forced it to become a sanctuary city and endanger its residents
when in fact it was a willing participant.
The consent decree was a shocking action on the part of the
Department of Justice. The chief law enforcement agency of the
Federal Government acted to impede the enforcement of Federal
law. In addition, the policy appears to be in direct violation
of section 1373. Yet it was--excuse me. Yet it was reviewed and
approved in advance by the Department of Justice Civil Rights
Division. This appears to be another example of the current
DOJ's cavalier disregard for the Constitution and the law.
Chairman Gowdy and I sent a letter to the attorney general
in May asking that she explain how the New Orleans Police
Department policy complies with section 1373 and requesting
that she provide communications with New Orleans concerning the
development of the policy. DOJ's response was almost completely
nonresponsive.
The DOJ inspector general issued a report in May that
expressed concern that ambiguous language in some sanctuary
policies may cause local officers to comply with such policies
in a way that would violate section 1373. The inspector general
noted that, ``unless the understanding of New Orleans Police
Department's employees is that they are not prohibited or
restricted from sharing immigration status with ICE, the policy
would be inconsistent with section 1373.'' I have asked for the
training materials that the New Orleans Police Department gave
to its officers to ensure their understanding of section 1373.
I have been provided with nothing.
This leads to a troubling possibility that, through a lack
of training, the New Orleans Police Department has, in
practice, violated section 1373.
Finally, just 4 days before this hearing, after this
Committee's persistent efforts to expose this disturbing matter
and demand action, the Department of Justice informed the
Committee that the New Orleans Police Department had revised
its sanctuary policy.
Specifically, the NOPD policy now states that it is to be
construed in accordance with section 1373(a). On that basis,
DOJ has represented to the Federal court and this Committee
that the policy now complies with section 1373.
Unfortunately, this coordinated effort by DOJ and the city
of New Orleans to preserve the patina of legality of their
consent decree clearly fails. Section 1373(b) prohibits
jurisdictions from restricting their employees from requesting
information from ICE, maintaining such information, and
exchanging information with other agencies. Nowhere does the
revised policy require compliance with this subsection.
A NOPD officer that arrests an individual who is believed
to be illegally present is most likely going to contact ICE to
request information regarding that individual's immigration
status. However, the revised NOPD policy expressly prohibits
the New Orleans Police Department officers from making
inquiries into an individual's immigration status. DOJ and NOPD
have provided no evidence that NOPD, in practice, has complied
with section 1373.
They have provided no training material showing that
officers have or will be properly trained regarding compliance
with section 1373.
The New Orleans Police Department received over $2 million
in law enforcement grants from the Department of Justice in
fiscal year 2015. As Attorney General Lynch has essentially
admitted to John Culberson, Chairman of House Appropriation
Committee's Subcommittee with jurisdiction over the Department
of Justice, if the New Orleans Police Department is in
violation of section 1373, it would be disqualified from
receiving these grants.
Yet the Department of Justice has made no effort to cut off
grants to New Orleans. Even aside from the likely violation of
Federal law, the Department of Justice's actions in this case
show that the protection of our constituents and the
enforcement of Federal law no longer seem to be priorities of
the Department. In fact, the Department of Justice seems to
view them as roadblocks impeding its chosen policy preferences.
I want to thank our witnesses for appearing today, and I
look forward to their testimony and to learning more about how
this new New Orleans Police Department policy, including why it
still prohibits compliance with section 1373(b).
Thank you, Mr. Chairman.
Mr. Gowdy. The gentleman from Virginia yields back.
The Chair will now recognize the gentleman from Michigan,
the Ranking Member of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Gowdy, and I join in
welcoming all of our witnesses. I would like to preface my
remarks regarding today's hearing, which deals with community
policing policies by observing that our Nation's conscience
continue to be rocked by a series of tragic events involving
law enforcement and the loss of too many Black lives. In our
courtrooms, in our streets and on television, we confront a
never-ending body count.
Earlier this summer, my congressional colleagues and I
staged an unprecedented sit-in just to try to get a vote on
commonsense gun legislation. In this Committee, Chairman
Goodlatte and I formed a bipartisan policing strategies working
group to begin examining how we can best ensure that Congress
takes responsibility for the conversation about race and
policing in America.
I believe this working group is one of the best examples of
how we can come together at a time when the Nation needs our
leadership to reduce the levels of violence in our communities.
And just this past week, I joined my Congressional Black Caucus
colleagues in protest of yet another series of senseless
killings of Black men and Black children by police in
Cleveland, Tulsa, and Charlotte.
When you add to this volatile mix the attacks on the police
officers in Baton Rouge and Dallas, the Nation risks being
forced into a battle of whose lives matter most. We mourn the
loss of all of these lives and want to see an end to this
violence across the United States, including in the iconic
American city of New Orleans.
To achieve this, first, we need to ensure police
accountability, prevent violent attacks on law enforcement, and
improve the relationship between police officers and the
communities that they are sworn to protect and serve. Community
trust police--community trust policies are integral to smart
law enforcement for diverse communities, including those with
immigration populations like New Orleans and my district in
Michigan.
Secondly, studies show that crime rates actually decrease
after localities adopt community trust policies. Further, these
studies find that strong-arm policies, such as Secure
Communities, fail to lower crime rates. Instead, they make
communities less safe because residents become more fearful
and, therefore, less likely to report criminal activity or
cooperate with investigations.
We share the common goal of community safety. To suggest
that local leaders and law enforcement officials are
purposefully pursuing policies that make their communities less
safe is simply false and offensive.
Finally, if we are looking for real solutions, we should be
undertaking comprehensive immigration reform. Unfortunately,
this hearing, which pejoratively refers to New Orleans'
community trust policy as a sanctuary city policy is not about
comprehensive immigration reform. It is about anti-immigrant
politics and fearmongering.
An immigration reform bill, such as the measure that passed
the Senate in 2013 or the legislation that had 201 House
cosponsors in the last Congress, would allow law-abiding
immigrants to come out of the shadows and get right with the
law, and it would enable immigration customs enforcement to
focus its resources on deporting the worst elements. This kind
of solution would help ensure that the city of New Orleans and
all communities, citizens and immigrants alike, as well as the
brave men and women serving in law enforcement are protected
from harm.
And in closing, I thank the Chairman, and I look forward to
a meaningful discussion in this hearing from our witnesses.
Thank you, Mr. Chairman.
Mr. Gowdy. The gentleman from Michigan yields back.
We have a very distinguished panel of witnesses, and I will
begin by swearing them in. If you would, please rise.
Do you swear the testimony you are about to give is the
truth, the whole truth, and nothing but the truth, so help you
God?
May the record reflect all the witnesses answered in the
affirmative. You may sit down.
We will introduce you en banc, and then I will recognize
you individually for your opening statements. First, it is my
pleasure to welcome the Honorable Jeff Landry, who is the
attorney general for the State of Louisiana. Attorney General
Landry joined the Louisiana National Guard in high school,
taking part in Operation Desert Storm, and served as both a
police officer and a sheriff's deputy. General Landry ran
successfully for Congress in 2010 and served in the 112th
Congress. He became Louisiana's attorney general on January 11,
2016. He has a bachelor's of science degree from the University
of Southwestern Louisiana, which is now the University of
Louisiana at Lafayette, and a law degree from Loyola University
New Orleans' law school.
Welcome, Attorney General Landry.
The Honorable Michael Horowitz is the inspector general for
the Department of Justice. He worked as an assistant U.S.
attorney for the Southern District of New York before joining
DOJ in 1999 where he served as Deputy Assistant Attorney
General and chief of staff in the Criminal Division of Main
Justice from 1999 to 2002. General Horowitz also served as
Commissioner of the U.S. Sentencing Commission. He was sworn
into his current position on April 16, 2012. He graduated with
highest honors from Brandeis University and earned his law
degree with high honors from Harvard Law School.
Welcome, Inspector General Horowitz.
Next is my pleasure to introduce Ms. Vanita Gupta. She is
the Principal Deputy Assistant Attorney General and the head of
the Civil Rights Division at the Department of Justice. Ms.
Gupta worked as a civil rights attorney and deputy director of
the American Civil Liberties Union. She became head of the
Civil Rights Division in 2014. She earned her undergraduate
degree with high honors from the Yale University and a law
degree from the New York University School of Law.
Welcome, Madam Attorney General.
And Mr. Zach Butterworth is the director of Federal Affairs
for the city of New Orleans, representing Mayor Mitchell
Landrieu in the New Orleans Police Department, the
international airport, and the regional transit authority, and
water infrastructure system. Mr. Butterworth served as the
legislative director and counsel to Senator Mary Landrieu and
as senior counsel to our friend, Congressman Cedric Richmond.
Mr. Butterworth graduated from LSU and Loyola University New
Orleans College of Law. Welcome to each of you.
Attorney General Landry, you are recognized for your 5-
minute opening.
TESTIMONY OF THE HONORABLE JEFF LANDRY, ATTORNEY GENERAL,
LOUISIANA DEPARTMENT OF JUSTICE
Mr. Landry. Thank you, Mr. Chairman, Madam Ranking Member,
for the opportunity to address this Committee on one aspect of
a public crisis of our time, and that is illegal immigration.
As Louisiana's chief legal officer, I am committed to ensuring
the rule of law is followed by everyone.
Like each of you, I took an oath to defend the
Constitution, and I intend to uphold it. Unfortunately,
sanctuary city policies undermine our justice system and our
national security. As I am sure you agree, government's most
important function is for providing and securing the safety of
her citizens.
Sanctuary policies not only jeopardize the ability to
protect our citizens, but they also allow illegals to commit
crimes, then roam free in our communities. It has been reported
that cities with sanctuary policies have seen an increase in
crime. One sanctuary city, Los Angeles, saw all crimes rise in
2015. Violent crimes was up 20 percent; homicides up 10
percent; shootings victims up almost 13 percent; rapes up
almost 9 percent; robberies up 12 percent; and aggravated
assaults up 27 percent.
What is more, ICE recently reviewed that over 1,800
illegals released by sanctuary cities were later rearrested
almost 4,300 times, committing almost 7,500 new crimes,
including rape and child sex abuse.
Sanctuary policies encourage further illegal immigration
and waste much-needed public resources as they force the
Federal Government to find and arrest deportable criminals
already taken into custody by local law enforcement.
This spring, I advocated for legislation in Louisiana that
would have increased public safety by incentivizing the
government--government agencies to follow the law. Because of
this effort, Lafayette Parish is no longer a sanctuary city
parish. As of late Friday, the city of New Orleans has changed
its policy allowing NOPD to now allegedly cooperate with
Federal authorities.
By shining a bright light on this dangerous procedure, this
Committee has already provided a catalyst for change. Let me be
clear: I am not trying to become the immigration police.
Between catching child predators, rooting out public
corruption, and fighting Federal overreach, I have more than
enough to do. But I am here today to push for a change because
the Administration has not only decided not to enforce the law,
but they also have used their power to coerce local
jurisdictions in my State to institute sanctuary city policies.
In the great city of New Orleans, the Justice Department
entered into a consent decree with the city that mandated that
its police officers not make inquiries into an individual's
immigration status or assist ICE unless there is a warrant or
court order issued.
As a former police officer and sheriff's deputy, I find it
unconscionable that criminals who are in our country illegally
cannot be held unless a--until a warrant or a court order is
issued. After all, American citizens can be stopped on
reasonable suspicion, arrested on probable cause, and may not
see a judge for 2 to 3 days. Illegal immigrants should not be
given a greater right than we afford our own citizens.
After hearing testimony in the statehouse in Louisiana that
the Department of Justice, the U.S. Department of Justice,
mandated that the city of New Orleans adopt a sanctuary city
policy as part of the consent decree, I wrote a letter to
Attorney General Loretta Lynch asking for clarification. The
response that this Committee and I received was a lengthy non-
answer that we have unfortunately come to expect from the
Administration.
However, a recent report by the DOJ's own inspector general
confirmed that sanctuary jurisdictions violate Federal law by
prohibiting communication with ICE officials. Furthermore, it
explicitly declared that local jurisdictions comply with all
Federal laws in order to receive Federal grants. All the while,
the Administration has been rewarding sanctuary cities with
hundreds of millions of dollars of Federal tax money.
I was criticized by the Governor of Louisiana and the mayor
for allegedly jeopardizing State funding with the legislation
that I supported. The truth is that the U.S. DOJ's mandated
policy upon the city is what is jeopardizing their funding.
Besides fiscal and legal issues, there are homeland security
issues. Due to sanctuary city policies, foreign terrorists,
such as members of ICE, have the ability to travel to a
sanctuary city, commit a minor offense, and remain protected
from being identified. And in the current environment, why
would we discourage cooperation between State and local law
enforcement?
Reducing crime and saving lives are not a partisan issue.
In fact, politics never came up when I met with the family of
St. John the Baptist Parish fire chief, Spencer Chauvin's
family. Chief Chauvin was killed last month in the greater New
Orleans area by an illegal alien with a lengthy criminal
background who was in our country. The questions were not
Republican or Democrat, conservative or liberal. This grieving
family simply asked one thing that this Committee, Congress,
and the Administration should absolutely answer: Why do we have
to wait for illegals to victimize our citizens in a violent
manner before deporting them?
And I pose to you an even humbler one: Why cannot the
State--why cannot State and Federal law enforcement work
collaboratively to prevent these types of actions?
Honorable Members, we need sound immigration policy that
begins with securing the border and enforcing the immigration
laws already on the books. Congress must act to support those
of us at the State and local level who have been fighting these
reckless sanctuary city policies.
I am proud that our efforts exposing the actions of DOJ and
the city of New Orleans have resulted in substantive changes
with the city's policy. Because of the efforts we made in
Louisiana, our State no longer has any jurisdictions
prohibiting them from communicating with Federal immigration
authorities. Today, Louisiana is safer because of these
changes. Thank you very much, and I look forward to answering
any of your questions.
[The prepared statement of Mr. Landry follows:]
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__________
Mr. Gowdy. Thank you, Mr. Attorney General.
Inspector General Horowitz.
TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ, INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Horowitz. Mr. Chairman, Ranking Members, Members of the
Committee, thank you for inviting me to testify before you
today.
Earlier this year, the Department advised the Office of
Inspector General that it had received information indicating
that jurisdictions receiving Department grant funds may be in
violation of title 8 United States Code, section 1373. The
Department provided the OIG with grant information related to
more than 140 State and local jurisdictions and asked our
office to review the allegations.
We considered the matter as requested and subsequently
provided the Department with a memorandum advising it of the
steps we had taken and summarizing the information we had
learned. We did so expeditiously because, in part, the
Department's grant process was ongoing, and we found that the
Department had not provided grant recipients with clear
guidance as to whether section 1373 was an applicable Federal
law with which recipients were expected to comply in order to
satisfy relevant grant rules and regulations.
Based on a large number of jurisdictions cited by the
Department and the need for us to review this expeditiously, we
judgmentally selected 10 State, and local jurisdictions for
further review. For each jurisdiction, we researched the local
laws and policies that govern their interactions with U.S.
Immigrations and Customs enforcement and interviewed ICE
officials to gain their perspective on ICE's relationship with
the jurisdictions.
Based on our research, we found that the laws and policies
of several jurisdictions went beyond placing limitations on
complying with civil immigration detainer requests and
potentially limited the sharing of immigration status
information with Federal immigration authorities.
We also found that the laws and policies of some
jurisdictions in our sample group that address the handling of
ICE detainer requests might have had a broader practical impact
on the level of cooperation with ICE and therefore might be
inconsistent with the intent of section 1373. ICE officials
expressed a similar concern to us.
With regard to the New Orleans Police Department, we noted
that its then existing policy broadly prohibited officers from
disclosing a person's citizenship and immigration status
information with an exception where the disclosure was
``required by Federal or State law.''
This savings clause language appeared to be potentially
inconsistent with the plain language of section 1373 because,
for example, section 1373 doesn't ``require'' cooperation with
ICE, but rather prevents jurisdictions from prohibiting or
restricting employees from providing immigration status to ICE
upon request.
In our memorandum, we advise the Department of several
steps it could consider taking to the extent its focus was to
ensure grant recipient compliance with section 1373. Among the
steps were to provide clear guidance to grant recipients
regarding whether they would be expected to comply with section
1373 in order to satisfy relevant grant rules and regulations,
to require grant applicants to provide certifications and
supporting documentation regarding compliance with section
1373, and to consult with the Department's law enforcement
counterparts at ICE and other agencies regarding such issues
prior to grant awards.
We believe the steps we outlined would provide the
Department with assurances that a grant applicant was
cooperating--was operating in compliance with section 1373 and
also would be helpful should the Department later refer alleged
violations of section 1373 by grant recipients to the OIG for
our investigation.
This concludes my statement, and I will be pleased to
answer any questions that the Committee may have.
[The prepared statement of Mr. Horowitz follows:]
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__________
Mr. Gowdy. Thank you, Mr. Inspector General.
Madam Attorney General.
TESTIMONY OF THE HONORABLE VANITA GUPTA, PRINCIPAL DEPUTY
ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S.
DEPARTMENT OF JUSTICE
Ms. Gupta. Thank you. Good morning. Good morning, Chairman
Goodlatte, Chairman Gowdy, Ranking Member Zoe Lofgren, and
distinguished members of Subcommittee. Thank you for the
opportunity to speak before you today about the Justice
Department's work to advance public safety and promote
effective, constitutional, and community-oriented policing.
Around the country, State and local law enforcement serve
as the first line of defense for public safety. They keep our
families safe from harm, they fight crime on our streets, and
as recent events painfully remind us, they do this demanding,
often dangerous work, at great sacrifice and great personal
risk.
So let us make no mistake: the vast majority of men and
women who wear the badge serve our communities with
professionalism, with integrity, and with distinction. They
deserve our deepest respect and our steadfast support. Yet when
police departments engage in a pattern or practice of
unconstitutional policing, their actions can severely erode
community trust and profoundly undermine public safety.
In 1994, Congress charged the Justice Department with a
responsibility to investigate law enforcement agencies for a
pattern or practice of conduct that violates Federal law, and
when necessary, to develop remedies to eliminate such
misconduct.
Today, I will discuss our work with the New Orleans Police
Department by explaining the problems we found and the reforms
that the city agreed to implement. In May 2010, New Orleans
Mayor Mitch Landrieu requested that the Justice Department
conduct an independent investigation of NOPD's systems and
operations. In a letter, Mayor Landrieu stated that he
inherited a police force described by many as one of the worst
police departments in the country.
Following our fact-driven and comprehensive investigation,
we published our findings in a detailed 141-page letter. Among
other violations, we found evidence that NOPD was unfairly
enforcing the law or failing to enforce the law based on race,
ethnicity, national origin, and other protected
characteristics. These discriminatory policing practices eroded
trust. Crime victims and witnesses, especially in Latino
communities, felt afraid to share information with the police.
This hurt public safety.
In the context of reporting crime, one community member
told us, ``Out of fear, we stay quiet.'' I know many law
enforcement officials and leaders around the country understand
these concerns and recognize the very critical and important
link between community trust and public safety.
In 2012, New Orleans and the Justice Department entered
into a comprehensive negotiated consent decree approved by the
Federal court in 2013 to resolve our allegations of unlawful
police misconduct. The decree requires NOPD to make important
changes in policies and practices related to the use of force,
stops, searches, and arrests, the prevention of discriminatory
policing, and officer training oversight and supervision.
In February of this year, after seeking input from the New
Orleans community, the court appointed monitor, the Federal
district court, as well as the U.S. Departments of Justice and
Homeland Security, NOPD issued a new policy to help officers
provide services effectively and fairly to all people in the
city, regardless of their immigration status or the color of
their skin.
Last week, NOPD updated its policy to clarify that it
complies with a specific Federal statute, 8 U.S.C., section
1373, to ensure that officers understand that they can send and
receive information regarding an individual's immigration
status and to most effectively advance nondiscriminatory
policing. The policy also states that NOPD officers can take
law enforcement action and assist in immigration enforcement
when there is a threat to public safety, to execute criminal
warrants, and to safely execute a court order.
By facilitating a culture of trust and cooperation, the
policy will help local and Federal law enforcement protect
public safety. The hardworking men and women of the New Orleans
Police Department continue to do precisely that by fighting
crime in partnering with Federal law enforcement to identify
and prosecute people who have committed violent crimes.
We strongly believe that this policy will help restore
trust with crime victims and witnesses, enhance the sharing of
information, and, in so doing, make the entire New Orleans
community safer. In New Orleans and in any city the Justice
Department works with, real and lasting reform can't happen
overnight, and we recognize the vital role of sustained
collaboration with the entire community, from police officers
to public officials and to community members.
And I want to commend officials from the city and the NOPD
for their partnership throughout this process. And I view our
dialogue today here as an important part of that same process
about how police reform can help make the residents and
officers of New Orleans safer for generations to come. I look
forward to your questions.
[The prepared statement of Ms. Gupta follows:]
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__________
Mr. Gowdy. Thank you, Madam Attorney General.
Mr. Butterworth.
TESTIMONY OF ZACH BUTTERWORTH, EXECUTIVE COUNSEL AND DIRECTOR
OF FEDERAL AFFAIRS, OFFICE OF MAYOR MITCHELL J. LANDRIEU, CITY
OF NEW ORLEANS
Mr. Butterworth. Chairman Gowdy, Chairman Goodlatte,
Ranking Member Lofgren, and Congressmen, my name is Zach
Butterworth. I am the executive counsel and director of Federal
relations for the city of New Orleans. Thank you for giving me
the opportunity to provide testimony before the Committee
today.
Ms. Gupta. Hold on. Now it is on.
Mr. Butterworth. Okay. Thank you, Vanita.
Ms. Gupta. Sorry about that.
Mr. Butterworth. Before I begin, I would like to thank the
panel for their support that Congress has provided to New
Orleans since Hurricane Katrina 11 years ago. Our recovery
would certainly not be where it is today without that support.
I would also like to thank you for your strong support of
the victims of the flooding of Baton Rouge. I have seen a
magnitude of that flood, and those people will certainly need
your help for years to come.
I want to emphasize three main points from my written
testimony and then try to give the panel a little bit of
context for how we got here today. First, public safety is a
top priority in New Orleans. Legal or undocumented, whoever
commits a crime in New Orleans will be arrested. Our record
shows that every day the New Orleans Police Department takes
violent criminals off the streets.
In 2012, Mayor Landrieu formed the Multi-Agency Gang Unit.
That unit alone has arrested 100 of the most violent criminals
in New Orleans. Murder is down in New Orleans, 18 percent from
2011. At the same time, murder was up 4 percent nationwide.
Violent crime is down in New Orleans, 60 percent dating back to
its highs in 1994.
My second point is that New Orleans' policy does not make
us a sanctuary city. We are trying to follow Federal law. We
have been trying to follow Federal law from day 1. It should go
without saying that any police department--any policy a police
department adopts follows State, local, and Federal law.
So the review process here. The NOPD, every policy is
reviewed by the Department of Justice, a Federal monitor, who
is appointed by a Federal judge, and the NOPD.
In drafting our policy, we asked the experts. Officials
from ICE were brought in and reviewed best practices from
around the country. For instance, the Major Cities Chiefs
Association, which New Orleans is a member, represents 70
million Americans. They support policies that foster trust,
cooperation between police officers, and immigrant communities
that we all serve.
And my third point is that NOPD's policy on immigration
status will make the city safer. It frees up our officers to
focus on violent crime. It also allows anyone to report a crime
or to be a witness or a victim to report a crime. The policy is
already bearing fruit. On the ground, our commanders are seeing
better cooperation with immigrant communities.
Quickly, going back to 2010, we did invite the Justice
Department in. Their comprehensive investigation showed that we
had problems in the way that we treated the immigrant
community. We wanted to fix that.
Since 2010, we have launched 11 new recruit classes. We
have written 34 of these types of policies. Forty more are
being drafted right now. These policies cover canine use,
prisoner transport, Taser operations, body-worn cameras, to
name a few.
Now, going back to March 2015, we started drafting this
policy with the NOPD, the Federal monitor, and of course, the
Justice Department. In September, we brought in ICE. We asked
the experts. They were brought in at both the local and the
headquarters level. At the time, ICE told us that the policy
complied with all Federal ICE requirements for law enforcement.
Then in December, Judge Susie Morgan, who oversees the
consent decree, also brought in ICE. We had the chief counsel
from the New Orleans division in our office. No concerns,
substantive concerns, about the policy were raised at that
time.
So, in February of this year, the Federal monitor approved
the policy. Immediately, there were some concerns about the
policy, so Mayor Landrieu wrote to DHS and DOJ, the leadership
there, and said: ``If anyone in any of your agencies, any
person has a concern about this policy, please contact us.'' It
wasn't until July that we received a letter back with
information about 1373 and general compliance there.
So, when we got that--when we received that information, we
immediately went to work redrafting the policy with DOJ, and as
the Chairman noted, last week, the Federal monitor did approve
the updated policy that we believe fully complies with Federal
law just as we believe the last policy fully complied with
Federal law.
So, simply put, the NOPD's policy on immigration status is
going to make the city safer, and it follows Federal law. As
required by the consent decree, we will review our policies
continuously, and I am happy to take any questions. Thank you.
[The prepared statement of Mr. Butterworth follows:]
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__________
Mr. Gowdy. Thank you, Mr. Butterworth.
The Chair will now recognize the gentleman from Virginia
for his 5 minutes of questioning.
Mr. Goodlatte. Well, thank you, Mr. Chairman.
Mr. Butterworth, let me pick right up where you left off. I
appreciate the work that you have done on this, but under the
revised policy, the New Orleans Police Department officers are
prohibited from making inquiries about an individual's
immigration status, including to ICE, yet section 1373(b)
authorizes officers to make requests to ICE for such
information.
So doesn't the policy violate Federal law, section 1373(b)?
Mr. Butterworth. Sir, we believe the policy fully complies
with 1373. If there is anything about the new policy that is
unclear, we would be happy to go back and take a look.
Mr. Goodlatte. Why was there a specific reference made to
1373(a) and 1373(b) was left out of the----
Mr. Butterworth. I think the focus of the concerns that had
been raised had been on 1373(a). I think, on behalf of the
NOPD, we are happy to go back and make sure that there is no
misunderstanding about 1373(b). I think, as you just heard,
Ms.----
Mr. Goodlatte. Are you aware of any concerns on the part of
the mayor or city officials or the police department chief or
others about authorizing officers to make inquiries about an
individual's immigration status?
Mr. Butterworth. So, as you just heard Ms. Gupta testify,
this policy allows officers to communicate with ICE. They are
going to help ICE in any sort of public safety event. They are
going to help ICE execute criminal warrants. And there is no
restriction on the communication between an officer and ICE in
this policy.
Mr. Goodlatte. Is there any restriction on a police officer
making a request to ICE for information regarding an
individual's immigration status?
Mr. Butterworth. There is no--so the way the policy is laid
out, if a person--if an officer interacts with a member of the
public, he or she immediately run that person's name against
the NCIC database system. If there is a return that there is a
criminal warrant on that person, the person is immediately
arrested.
Mr. Goodlatte. And now you noted in your testimony that the
New Orleans Police Department takes criminals off the street.
If you find that they are not lawfully present in the United
States, what happens after they have been through the judicial
process in New Orleans?
Mr. Butterworth. So thank you for allowing me to clarify
that. New Orleans has a very unique political structure. The
mayor is elected parishwide, our counties, to lead the NOPD.
Our sheriff is also elected parishwide, and he leads the
sheriff's department. So I don't represent the sheriff's
department, and I apologize that I can't speak on behalf of
them, but our officers, who arrest someone on a criminal
warrant, deliver the suspect----
Mr. Goodlatte. So, assuming that they are prosecuted and
convicted and incarcerated, not all will be, but those who are,
after they have served their time, what does the policy of the
New Orleans Police Department and courts say about
communications with ICE about the fact that someone is about to
be released from jail or released from prison who has been
convicted of a crime and is not lawfully present in the United
States?
Mr. Butterworth. So, if a person is convicted of a felony
in Louisiana, they are likely sent to Angola, which is a State
corrections facility, and I would defer to the attorney general
on the operations of the State corrections facility after that.
Mr. Goodlatte. And what about the New Orleans jails?
Mr. Butterworth. Again, the sheriff of New Orleans operates
the jail there, and we have no operational control over the
sheriff.
Mr. Goodlatte. Thank you.
Well, let me turn to the attorney general. Welcome. We are
glad to have you back with us, Attorney General Landry, and I
want to start by asking you if you believe, as Louisiana's
chief law enforcement officer, that the New Orleans consent
decree violates Federal law.
Mr. Landry. I believe that, prior to the substantive
changes that they made, it absolutely violated Federal law. The
question is whether or not in practice the new changes will
remedy that situation.
You know, what we have in the country is basically two
types of sanctuary city policies. It is either a ``don't ask''
policy or ``don't tell.'' What the current New Orleans city--
what the prior policy was, prior to the change, was both, both
a ``don't ask'' and ``don't tell.'' Now the question is whether
or not they--they seem to have remedied the ``don't tell''
portion of that policy, but it doesn't seem that they have made
any changes in the ``don't ask'' portion.
Mr. Goodlatte. And it is your intention to make sure that
everything within your power to assure that that happens will
happen so that they are in full compliance with 1373, not just
one subsection of it.
Mr. Landry. Absolutely. We are going to try to take it upon
ourselves to go out and let all law enforcement officers around
the State know exactly what 1373 states and how they can avoid
violating that statute.
Mr. Goodlatte. Thank you. And just, in general, do you
believe it is inconsistent for a jurisdiction to adopt a
sanctuary policy that violates Federal law and at the same time
requests Federal law enforcement grant money?
Mr. Landry. I do.
Mr. Goodlatte. And what message does that send concerning
the rule of law?
Mr. Landry. Well, again, it sends a terrible one. I think
that is part of the demise of our criminal justice system and
the reason that we have an uptick in crime across the country.
When we allow people to flagrantly violate any law and then we
just turn a blind eye to it, all that does is lead to those
people committing additional crimes and thinking it is okay to
break the law.
Mr. Goodlatte. Well, thank you very much. And I heard your
testimony that, with the correction of this, when hopefully it
will soon be completely corrected, there will be no communities
in the State of Louisiana that would be characterized as
sanctuary cities.
Mr. Landry. Thank you, Mr. Chairman.
Mr. Goodlatte. Well, thank you. I wish other States had the
same effort to have such a consistent record.
And I yield back to the Chairman.
Mr. Gowdy. The gentleman from Virginia yields back. The
Chair will now recognize the gentlelady from California, Ms.
Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
Ms. Gupta, I understand that in 2005, the civil rights
division was involved in investigating New Orleans policy abuse
and misconduct in the aftermath of Hurricane Katrina. Can you
talk briefly about the acts of abuse your division uncovered as
a result of that investigation?
Ms. Gupta. So we launched our investigation into the New
Orleans Police Department in 2010 and uncovered very pervasive,
widespread acts of misconduct related to specifically excessive
use of force, stop searches, and arrests; discriminatory
policing, and the like.
And one of the goals that we had when we had come in at the
invitation of Mayor Landrieu was to ensure that the New Orleans
Police Department would be able to carry out its core function
of providing effective policing and constitutional policing to
keep all residents of New Orleans safe. And in our 141-page
findings report, we detailed, after extensive data, interviews,
a lot of engagement with NOPD officers and command staff as
well as community members that these violations had thoroughly
undermined the NOPD's ability to solve and prevent crime in New
Orleans. And in the years since, since we have enacted this
consent decree, we have been working collaboratively with the
city and with the brave men and women of the New Orleans Police
Department to address these and to finally give New Orleans
police officers the tools that they need to have the trust of
all of their residents and to be able to fight violent crime.
Ms. Lofgren. Thank you.
We are pleased to be joined today by a Member of the full
Judiciary Committee, who is not a Member of the Subcommittee,
and that is Mr. Richmond, who also represents New Orleans, and
so I would like to yield the remainder of my time to him so
that he might ask a question since this is his territory.
Mr. Gowdy. The gentleman from Louisiana is recognized.
Mr. Richmond. Thank you, Mr. Chairman, and thank you to the
Ranking Member for allowing me to ask some questions.
Let me just start with a couple of things here. And in the
opening testimony of our Chairman, he said that he believed
that the consent decree between the City of New Orleans and the
Department of Justice was done through collusion. And I will
just tell you that as an African-American male who grew up in
New Orleans who had to deal with the New Orleans Police
Department, the police department went under consent decree
because of use of force, failing to investigate it, stop and
searches without cause, discrimination against African-
Americans, failing to investigate sex crimes against females in
domestic violence, a paid detail system that invited
corruption, failing to sufficiently embrace community policing,
and immigration as one of them. So I just would like to clear
up for anyone who thinks that, you know, we colluded all of
that, it is very convenient for a White male from Virginia to
talk about collusion in a consent decree.
And Attorney General Landry, let me just applaud you for
working on sanctuary cities, because you believe it is
important, but I would ask, can you help our Chairman
Goodlatte, because he has two sanctuary cities in Virginia, and
if you are going to start cleaning up, start cleaning up at
home. And while we go down the list, we have four in South
Carolina, every parish in Colorado, we have Sioux City in
Representative King's district, we have Rockwall, Dallas, and
Travis in Texas. So if we are going to start talking about
sanctuary cities, don't just pick mine that you would like to
allege is a sanctuary city; let's talk about all of them,
especially the people who are on the Committee.
And the other thing that we talked about was the
unfortunate death of a fire chief, a very respected and loved
fire chief in St. John Parish. And I think that incident
happened because the person fell through the cracks, and that
is what we should stop, but that has absolutely nothing to do
with New Orleans. The guy didn't live in New Orleans, he was
never arrested in New Orleans, the company he worked for was
not in New Orleans. That has absolutely no connection to the
city of New Orleans. Now, the company was operated out of St.
Tammany Parish with an elected official as a co-owner, which I
think is deplorable, and I think that that we should be looking
at prosecution for, the owners of the company, but to just
single out New Orleans as some city that decided all of a
sudden that we wouldn't enforce the law is just incorrect.
Zach, Mr. Butterworth, let me just ask you a question. When
did you all initiate trying to make sure that the city's policy
was consistent with Federal law?
Mr. Butterworth. So we began drafting this policy in March
of 2015 and we began discussions with ICE in September. So
those have continued on both the local and headquarters level,
and at no point did anyone at ICE ever say that this policy
didn't comply with Federal law.
Mr. Richmond. And Ms. Gupta, at what point is it your
office's opinion that they did not comply with Federal law? If
at any time, did they not comply with Federal law?
Ms. Gupta. The Justice Department believes the policy, even
in February, complied with Federal law, the revisions that we
just put into effect were made out of an abundance of caution
after we received inquiries from officials in Louisiana as well
as we reviewed our inspector general's memo, and in an
abundance of caution, to ensure total clarity about the fact
that the policy must comply with 1373, we literally lifted the
language of the statute, put it into the policy to make it very
clear that NOPD officers can share information with ICE
regarding an immigration status or citizenship status of an
individual, they can assist in operations in response to direct
threats to public safety or where there is an independent law
enforcement reason for doing so, they can assist in executing a
criminal warrant, they can assist in the enforcement of court
orders. So the revision was made to ensure total clarity with
compliance with Federal law.
Mr. Richmond. So in summary, the old policy and the new
policy, it is your opinion both were consistent with Federal
law?
Ms. Gupta. Yes.
Mr. Richmond. And, Mr. Horowitz, do you have an opinion on
that?
Mr. Horowitz. We ultimately, Congressman, didn't reach a
final determination as to the legality or not of the issue,
primarily because of the fact that we needed to get the report
back to the Department and its request expeditiously. And in
order to do that, we would really need to be on the ground, go
to the city, look at some of the issues that have been
previously--had previously been raised, talk with folks on the
ground there both from the city and from ICE, and we haven't
taken those steps and I am not in a position to give a legal
determination at this point without taking a full effort in
that regard.
Mr. Richmond. Thank you. And I will yield back.
Mr. Gowdy. The gentleman from Louisiana yields back. The
Chair will now recognize the gentleman from Idaho, Mr.
Labrador.
Mr. Labrador. Thank you, Mr. Chairman. Sanctuary city
policies have transformed some of our greatest American cities.
I am increasingly frustrated by these policies that are
consistently implemented in the name of ``unbiased and
community-based'' policing, as Deputy Attorney General Gupta
has said.
The ramifications for public safety and the inability for
ICE to complete its mission are severe, and not only affect the
cities, but the surrounding communities are impacted as well.
While some of the witnesses today, including Deputy Attorney
General Gupta, would like to ignore this fact, the simple truth
is that immigration enforcement is a critical function of the
United States Government and one that must be supported and not
undermined in this form.
Much of this debate centers around the practical
application of 8 USC 1373 and whether a city that has
implemented sanctuary policies can simultaneously comply with
this section of law.
Mr. Horowitz, based on your findings, what do you believe
that 8 USC 1373 requires of local jurisdictions?
Mr. Horowitz. In Sections 1373(a) and 1373(b), I will
combine them for purposes of just mentioning this, it
essentially prohibits State, local, or Federal law from
prohibiting or restricting in any way employees of those
entities from sending to, requesting from, or receiving from
ICE, information about the immigration status of an individual.
Mr. Labrador. So what do you make of the fact that Mr.
Butterworth keeps saying that it complies, but nothing in their
guidance says that they have the ability to request
information?
Mr. Horowitz. The new policy that we also received on
Friday afternoon and have looked at doesn't reference the word
``requesting,'' which is in (b)(1) of 1373.
Mr. Labrador. So it clearly doesn't fully comply. It seems
to comply with (a), but not with (b).
Mr. Horowitz. It clearly addresses (a)----
Mr. Labrador, It clearly addresses (a).
Mr. Horowitz [continuing]. It doesn't include the word
``requesting,'' which is in (b). Again, without us
understanding more, I am not going to be in a position to make
a legal opinion on whether it complies----
Mr. Labrador. But it is a simple word.
Mr. Horowitz [continuing]. Or doesn't, but it omits the
word ``request.''
Mr. Labrador. The missed ``request''--the word ``request''
is not in the policy, correct?
Mr. Horowitz. That is correct.
Mr. Labrador. Okay. And you believe that we may need to
clarify this section, correct?
Mr. Horowitz. I think it is an open question. I have gotten
it--I got it Friday afternoon as well. I would have to do
follow up, but with the absence of the word ``requesting,''
which is in 1373(b) is obviously a reasonable question here.
Mr. Labrador. Okay. Attorney General Landry, great to have
you here. Thank you so much for the work that you are doing. Do
you believe that by implementing these sanctuary policies, New
Orleans, and in particular NOPD, are promoting public safety?
Mr. Landry. Implementing the policies of sanctuary----
Mr. Labrador. Yeah.
Mr. Landry. Absolutely not. I mean, it is a danger to
public safety. And what happens is it actually--you know, when
you have--most of these cities are very large cities and you
have a very large metropolitan footprint. What happens is it
draws, it creates a magnet, a draw for illegal aliens as a
sanctuary area for them to operate. It also creates an
opportunity for--if you are a member of the drug cartel in
Mexico, where would you send those people who are plying your
illegal trade? You would send them into those cities, because
the ability for those members to be identified is reduced
because of the sanctuary city policies.
Mr. Labrador. Is New Orleans a safer city today than before
implementing these sanctuary policies?
Mr. Landry. Well, certainly the substantive changes that
they made on Friday is a step in the right direction. I think
that going ahead and clarifying it and then actually
determining whether or not there will be a collaborative effort
to crack down on illegal immigration, especially those that are
in custody that NOPD has arrested and identifies them, is yet
to be seen.
Mr. Labrador. So as a law enforcement official, as someone
who has served at both the Federal and State level, what do you
believe is the appropriate relationship between local or State
law enforcement and Federal immigration enforcement?
Mr. Landry. I believe they have to have extreme
collaboration. I believe that, you know, based upon some of the
U.S. Supreme Court's holding, that Congress needs to clarify
exactly how law enforcement agents may engage in those types of
questioning. And then, of course, implementing 1373 is
certainly a step in the right direction, making sure that law
enforcement agents know that they can ask and they can
communicate with ICE in order to get those violent criminals
off the street and deportable.
Mr. Labrador. Thank you. I yield back my time.
Mr. Gowdy. The gentleman from Idaho yields back. The Chair
would now recognize the gentleman from Illinois, Mr. Gutierrez.
Mr. Gutierrez. Thank you. I would like to note that we are
not having a hearing today about gun violence, 500 people shot
dead in Chicago, 3,000 this year; we are not having a hearing
about police killing unarmed civilians; we are not having a
hearing about the need for immigration reform or detention
centers; we are not having a hearing about any of the really
important things. We are having a hearing about a Donald Trump
talking point that one he goes to again and again, the one he
says that immigrants are killers, rapists, drug dealers, who
are here to hurt people, not to build up our country like every
other immigrant group that has come before them.
Today we are focusing on one of America's great cities, a
city with a troubling past when it comes to respecting civil
rights and building trust between the police and the community
at large. And so I would think that we would want to work on
building that trust between the police and the people, and that
the efforts taken by people to build that trust shouldn't be
undermined.
Lastly, I am just going to say, because it doesn't really
matter, this hearing, it really doesn't. It is going to come
and go. You guys got somebody to pay for your trips to come
down here. It is not going to have an impact on anything. We
are not going to change anything. This is just another
political hearing.
But I just want to say that, you know, we could have
actually spoken to a lot of very important issues that people
want us to talk about, but it always seems the majority always
says we should listen to people that are not in Washington,
D.C., we should listen to local elected officials, that that is
where democracy is blooming, but it seems like every time you
guys say anything, they have an objection when they don't like
it.
So having said that, I just want to say to my colleague
from New Orleans, I would like to yield the remaining 3 minutes
of my time to Mr. Richmond to ask questions.
Mr. Richmond. Thank you.
Attorney General Landry, you said that New Orleans' policy
would invite undocumented immigrants because of its status as a
sanctuary city. New Orleans' foreign born population is about 6
percent. Neighboring Jefferson Parish, which is not a sanctuary
city, is about 11 percent. How do we reconcile that with the
notion that New Orleans is becoming a safe haven for
undocumented people?
Mr. Landry. Let me clarify that. That was a
misunderstanding, Congressman Richmond. The metropolitan area
becomes--as a whole, invites illegal immigrants into that
particular area, because, again, they feel the need, the
ability to travel freely. Again, when you look at not only the
actual city that implements the policies, it affects the
surrounding areas.
Just last weekend in the Lafayette metropolitan area, we
had an elderly man get hit head-on by an illegal immigrant,
who, again, had been arrested multiple times and yet was not
deportable. So here we have another family losing another loved
one in an area which had--previously had a sanctuary city
policy.
Mr. Richmond. And, look, I don't--you know, we have a great
working relationship, and I know you are very tough on crime.
Let me ask about the incident that killed our fire chief. The
company was owned by a person in Louisiana and a State rep from
Arkansas. Under Louisiana law, do you have the ability to
indict the owners of the company for hiring an undocumented
without a license that was driving when he caused that fatal
accident?
Mr. Landry. In Louisiana, I believe the employment of an
illegal is not a criminal offense, it is a civil matter.
Mr. Richmond. Well, if it is done in a very negligent
manner and without--gross negligence, I think we do have some
criminal statutes under which--let me just ask this, then. If
we can find some criminal statutes under which to charge the
owners of the company, who ultimately are at fault for hiring
an undocumented, would you commit to charging them if the facts
fit the statute? And I don't mind looking myself.
Mr. Landry. Yeah, absolutely. You know, Congressman, you
are right, we have a great working relationship and I certainly
respect you. And, yes, I intend to uphold the rule of law
regardless.
You know, I would also mention that the sanctuary city
legislation that we put forth in the State house just this year
passed the State house with large bipartisan support. I think
everyone is recognizing that this is a public safety debacle
and that this is a first step in ensuring that our communities
are safe.
Mr. Richmond. Thank you. And I would yield back.
Mr. Gowdy. The gentleman from Louisiana yields back. The
Chair would now recognize the gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman. I thank the witnesses
for your testimony here today. And I would turn first to
Attorney General Landry, and I would like to--I would like to
pose a broader concept here and then ask you to comment on
that, and perhaps we will go a little deeper, and that is that,
as I read Federal law and immigration law and as I understand
it after these years on this Committee, it envisions in its
entirety essentially vacuuming up the illegal people in the
United States and all of those whom are encountered by law
enforcement, it anticipates their removal from the United
States, and it requires that when at least Federal law
enforcement officers encounter someone who is unlawfully
present in America, that they shall place them in removal
proceedings.
Would you agree so far with my characterization of Federal
law?
Mr. Landry. I do. I agree with that.
Mr. King. And then, so when I look at this, this statute,
1373, and I read through the details of 1373, shouldn't it be
clear to anyone who intends to comply with the intent of
Federal law that they are to help facilitate rather than
frustrate the intent of Federal law?
Mr. Landry. I agree. You know, just placing the type of
language that has been put in the consent decree dealing with
immigration frustrates the law.
Mr. King. And I happen to have a little quote here from Mr.
Richmond in a markup March 18, 2015, which was about the time
of the inception of this situation. He is concerned about the
police department and the sheriff's office, who have a Federal
consent decree, and that they can comply with--this is a quote,
``They are complying with a Federal consent decree, and now it
will cause the City of New Orleans to lose valuable Federal
money in terms of DHS and FEMA funds.'' I think it has been
known that there has been a clear violation here of at least
the intent of the consent decree--or excuse me, the intent of
1373 by the consent decree and the underlying policy, which is
a sanctuary city policy, by my reading of it.
Have you had any discussions or have you examined the legal
language of this in such a way that you are aware of any
loopholes that are being exploited in this process that seems
to be a collaboration between DOJ and the City of New Orleans?
Mr. Landry. Well, again, it is concerning that the
Department of Justice would go in and basically insert this
type of language in a consent decree that had nothing to do
with immigration or illegal immigration policies or enforcement
of that by local law enforcement in the city. Again, I think
that that language frustrates the entire consent decree.
Mr. King. Would Fire Chief Spencer Chauvin be alive today
if we had enforced our immigration laws as intended by this
Congress?
Mr. Landry. That is correct--I--absolutely. In fact, you
can make an argument that everyone who has been a victim or
lost a loved one to someone who has been in this country
illegally has lost that loved one simply because we fail to
enforce existing law.
Mr. King. Would you disagree with the statement made by
Donald Trump several weeks ago that there are thousands of
Americans that are grieving today because of the loss of a
family member, a loved one due to the failure to enforce
immigration law in the United States?
Mr. Landry. I do. I agree with that.
Mr. King. And I would say also, reinforce that, it is
thousands. And we have had difficulty in getting apples to
apples in two GAO studies. Thank you, Attorney General Landry.
And I would turn to Inspector General Horowitz and just ask
you this for clarification. As I listen to your testimony and I
read through your testimony, it doesn't come real clear to me
as to your position on whether you believe that the sanctuary
policy of New Orleans violates 1373.
Mr. Horowitz. We looked at the policy that preexisted
Friday and found they had a savings clause in their provision,
meaning that if--that employees could comply if required to do
so by Federal or State law. Our concern was how was that being
interpreted and used, because Section 1373 doesn't require
anything. It simply prevents state and local jurisdictions and
Federal jurisdictions from preventing employees from contacting
or responding to ICE----
Mr. King. Did this policy prevent them from gathering or
inquiring as to immigration status?
Mr. Horowitz. Parts of the--other parts of the policy did
address that.
Mr. King. And that seems to be the loophole that we have
identified over some years here that is exploited by the local
jurisdictions.
As my clock ticks down, I would like to, then, ask Ms.
Gupta, as you spoke about this, is there any Federal law or any
statute that you are aware of that prohibits law enforcement
from profiling when they exercise their job?
Ms. Gupta. Congressman, let me just make one thing clear,
if I could, that there is nothing in the NOPD policy that
prevents officers from requesting----
Mr. King. But my question is are you aware of any law or
any statute that prohibits profiling in the enforcement of law?
Ms. Gupta. Yes, there are. The Constitution obviously
prevents the racial profiling in the exercise of----
Mr. King. You mean to say that if there happens to be a
white-haired, light-skinned, blue-eyed person that has
committed a crime and you are on the hunt for them, you can't
say that?
Ms. Gupta. Where there is a direct and articulated reason,
reasonable suspicion, probable cause, these are the----
Mr. King. Can you characterize the appearance of a suspect
in the enforcement of the law?
Mr. Gowdy. The gentleman is out of time, but you may--you
may answer.
Ms. Gupta. Sure. Well, it is against the law to engage in
discriminatory policing where----
Mr. King. Mr. Chairman, I would ask unanimous consent to
press this witness until she answers my question. She is
evasive in her responses.
Ms. Jackson Lee. Objection.
Mr. Gowdy. Well----
Ms. Jackson Lee. The witness has been asked and she has
answered.
Mr. King. She has not answered.
Ms. Jackson Lee. She has answered the question.
Mr. King. I would ask unanimous consent for an additional
minute.
Ms. Jackson Lee. Mr. Chairman----
Mr. Gowdy. Well----
Ms. Jackson Lee [continuing]. She has been asked and she
has answered.
Mr. Gowdy. If the gentlelady from Texas would yield, I will
address the matter, but----
Ms. Jackson Lee. I will be happy to yield, sir.
Mr. Gowdy [continuing]. But it is hard for me to interrupt
you and do so.
Does the witness feel like she has answered the question as
adequately as she is able to do so?
Ms. Gupta. I do. I am happy to finish the sentence or to
yield.
Mr. Gowdy. No. You are welcome to finish the sentence.
Ms. Gupta. Thank you. Yes, it is illegal and against the
law to engage in discriminatory policing, to take policing
decisions solely on the basis of one's race or other kind of
protected characteristic, yes.
Mr. Gowdy. If the gentleman from Iowa has additional
questions, we can entertain a second round.
Mr. King. I thank the Chairman. And I would just point out
that I don't believe I did get an answer to my specific
question, but I think it is obvious to the members of the
panel. And I would yield back.
Mr. Gowdy. The gentleman from Iowa yields back. The Chair
would now recognize the gentlelady from Texas.
Ms. Jackson Lee. I thank the Chairman very much. And I do
want to express my appreciation when any witness comes to share
with this lawmaking body, because we should be problem solvers,
so let me thank all of you.
I might say that I would join with the comments of my
colleagues, that are here on this side of the aisle, and
particularly my colleague from New Orleans for his pointed and
very responsive questioning, but we should be doing criminal
justice reform that I hope that we will do, we should be doing
immigration reform, comprehensive immigration reform. And there
is a point to the fact that there are cities around the Nation
that may need, as you said, Mr. Horowitz, the clarification
that I think your pointed inspector general's report has
offered us, and I think that is a solution.
So let me first of all ask Ms. Gupta--and thank you again
for your service, I don't know where we would be if we did not
have the civil rights division, and I thank you so very much.
Have you made any pronouncement that New Orleans or any city in
the State of Louisiana at this time is not eligible for Federal
grants?
Ms. Gupta. We have not.
Ms. Jackson Lee. You have made no public statement. Let me
read very quickly into the record the genesis of the civil
rights division coming to New Orleans. This was a request by
Mayor Mitch Landrieu, a request of the U.S. Department of
Justice to conduct an investigation. His quote is that, nothing
short of complete transformation is necessary and essential to
ensure safety for the citizens of New Orleans.
I believe that you are interested in the overall security
and safety of all citizens or all individuals in New Orleans.
That was the request made by the mayor? Is that my
understanding?
Ms. Gupta. That is right.
Ms. Jackson Lee. And the representative of the mayor, is
that my understanding?
Mr. Butterworth. That is correct.
Ms. Jackson Lee. Thank you. I understand that you were
looking at the use of excessive force; unconstitutional stop,
searches, and arrests; biased policing, including racial and
ethnic profiling; and systemic failure to provide effective
policing services and systemic failure to investigate sexual
assaults and domestic violence. Do you recall that, Ms. Gupta?
Ms. Gupta. That is right.
Ms. Jackson Lee. You were overall dealing with the overall
civil rights of that community.
So the inspector general offered three points that would
help in Section 1373, the clarification, I believe, the--the
requiring grant applicants to provide certification about their
interaction with ICE, and then ensuring grant recipients
clearly communicate to their personnel about 1373.
Do you have any opposition to that?
Ms. Gupta. No.
Ms. Jackson Lee. And would you be in compliance or intend
to give some guidance to that section?
Ms. Gupta. Yes. The reason why we made the revisions most
recently was to clarify very clearly that the policy complies
with 1373, that ICE officer--that NOPD officers can share
information regarding the immigration status of an individual
with ICE, that there is nothing in NOPD policy that prevents
officers from requesting immigration status from ICE as well.
Ms. Jackson Lee. I just want to be very clear that there is
no--there is no ban right now that you have offered and that
you are not trying to block. Let me quickly ask this question.
I would like to yield to my colleague from New Orleans. Can you
tell me if the sentiment expressed by chief manager and the
policy of the Major Cities Chiefs Association, in particular,
people like Tom Manger, that policies like the one in New
Orleans will enhance public safety? Is that something you have
heard for other law enforcement agencies, Ms. Gupta?
Ms. Gupta. Yes. Thank you for the question, Congresswoman.
We have heard this from a number of leading law enforcement
leaders, but also I think very importantly, the reason why this
policy was undertaken was to help the NOPD fight violent crime.
When we--in the course of conducting our investigation in New
Orleans, we heard from any number of victims and witnesses who
were afraid or refusing to cooperate with the NOPD who had
critical vital information about crime, and that it was
undermining the NOPD's ability to solve and prevent violent
crime in those communities.
Ms. Jackson Lee. Thank you so very much. I am happy to
yield to my distinguished colleague from New Orleans, Mr.----
Mr. Gowdy. The gentleman from Louisiana is recognized for
36 minutes--36 seconds.
Mr. Richmond. Let me just quickly put the quote that--the
great quote that I made in context. It had nothing to do with
immigration that Representative King talked about. That quote
was because New Orleans was under a Federal consent decree,
both the police department and the sheriff's department, and it
was costing us over $50 million a year, which was preventing us
from making the jail or the police department constitutional.
But since Representative King brought it up, let me just
ask you very quickly, Jeff--well, Attorney General Landry, can
you please coordinate with the attorney general from Iowa to
help them with their 23 sanctuary counties that they have in
Iowa, and maybe you can coordinate? Are you willing to
coordinate with Representative King to help him with his 23?
Mr. Landry. I would be glad to put on a workshop in all 49
other States.
Mr. Richmond. Thank you. With that, I yield back.
Ms. Jackson Lee. Mr. Chairman, I have a submission. I would
ask unanimous consent if I might put into the record the
following documents: a statement from 11 national civil and
immigrant rates--excuse me--rights organizations; statement
from the National Immigration Project of the National Lawyers
Guild; statement from the National Immigration Forum; statement
from Church World Services; statement from 20 law professors,
led by Christopher Last; a statement from 17 New Orleans-based
community organizations; and a statement from the Law
Enforcement Immigration Task Force. I ask unanimous consent to
submit these documents into the record.
Mr. Gowdy. Without objection.*
---------------------------------------------------------------------------
*Note: The submitted material is not printed in this hearing record
but is on file with the Subcommittee, and can also be accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105392
Ms. Jackson Lee. Thank you. I thank----
Mr. Gowdy. The Chair will now----
Ms. Jackson Lee. I thank the witnesses. I thank you, Mr.
Chairman.
Mr. Gowdy. The Chair will now recognize the gentleman from
Colorado, former United States Attorney, Mr. Buck.
Mr. Buck. Thank you, Mr. Chairman.
Mr. Landry, have you ever prosecuted a case?
Mr. Landry. Sir?
Mr. Buck. Have you ever prosecuted a case?
Mr. Landry. A criminal case?
Mr. Buck. Yes.
Mr. Landry. Not since being--not until being attorney
general.
Mr. Buck. Does your office prosecute cases?
Mr. Landry. We do.
Mr. Buck. Mr. Horowitz, did you ever prosecute a case?
Mr. Horowitz. I did.
Mr. Buck. Ms. Gupta, have you ever prosecuted a case?
Ms. Gupta. My office prosecutes cases, yes.
Mr. Buck. Okay. And, Mr. Landry, who is your client?
Mr. Landry. The State of Louisiana.
Mr. Buck. The people of the State of the Louisiana?
Mr. Landry. That is correct, yes, sir.
Mr. Buck. Mr. Horowitz, when you prosecuted cases, who was
your client?
Mr. Horowitz. The people of the United States.
Mr. Buck. And, Ms. Gupta, when you prosecuted cases, who
was your client?
Ms. Gupta. People of the United States.
Mr. Buck. Okay. In your opening, Ms. Gupta, you say, police
officers--this is the top of page 4 in your written submission,
police officers cannot solve crimes and therefore cannot help
victims prosecute criminals or help Federal law enforcement
deport violent criminals if victims and witnesses feel afraid
to share information.
Mr. Landry, why would a victim or witness feel afraid to
share information?
Mr. Landry. Only because they would be afraid of the
suspect.
Mr. Buck. Okay. Well, how about if they are in this country
illegally and they share information and they are asked about
their status in this country, would they feel afraid to share
information perhaps for that reason? They could be deported or
held if they were in the country illegally when they reported a
case?
Mr. Landry. I believe if a person is victimized, they would
be--they would report it regardless of that, but we have seen--
look, as a former law enforcement officer, I have seen many
communities, especially when you get into the poorer
communities, that they are suspect of law enforcement
altogether, regardless of their immigration status.
Mr. Buck. Okay. Mr. Horowitz, could someone feel afraid to
report a crime because they, in fact, are committing a crime
themselves?
Mr. Horowitz. It has been a while since I prosecuted a
case, but you could certainly see that being a concern of
people.
Mr. Buck. Okay. Well, let's go further, because it has been
a while since I prosecuted a case also, so let's dig deep into
the recess of our memory here.
Mr. Horowitz, let me ask you something. Is it an allowable
part of cross-examination to ask a victim or witness a question
that would determine their motive for testifying or reporting a
crime?
Mr. Horowitz. It is, and obviously depends on the judge's
ruling as to the scope of that.
Mr. Buck. Okay. But your interpretation of law is--the
rules of evidence in a broad sense, that would be allowed----
Mr. Horowitz. Correct.
Mr. Buck [continuing]. To question about motive? How about
veracity?
Mr. Horowitz. That would also be allowed, again, to the
extent and scope that the judge allowed it.
Mr. Buck. Okay. And so if somebody were to report a crime
and yet they had committed a crime or they had a motive, for
example, a U Visa, if they wanted to stay in the country--you
understand what U Visas are. It allows a prosecutor to apply to
immigration authorities to allow someone to stay in this
country if they are a victim or witness of a crime. It would be
fair to inquire of that person whether they had committed a
crime themselves by being in the country illegally in order to
get a full picture about the prosecutory merits of a case,
would it not?
Mr. Horowitz. Presumably, but, again, I think it would be,
depending on the facts and circumstances, up to the judge
ultimately.
Mr. Buck. Okay. So, Mr. Landry, let me ask you something.
When the Department of Justice, the civil rights division,
decides that they are going to protect one group of individuals
who are committing crimes in this country and make sure that we
are not prosecuting another group of individuals, are they in
fact choosing which type of criminal they want prosecuted in
Louisiana, in New Orleans?
Mr. Landry. That is correct. That is exactly. We are
choosing between which laws we will follow and which laws we
will allow to be broken.
Mr. Buck. And why would someone do that, politically? What
is the political advantage of doing something like that?
Mr. Landry. You would have to ask them. I wouldn't engage
in that type of activity.
Mr. Buck. No, you wouldn't, because it is unethical, isn't
it?
Mr. Landry. That is correct.
Mr. Buck. If you believe that you are, in fact, not
enforcing the laws, or if you enter into a consent decree and
you are not representing your client, the people of the United
States, the people who are being victimized, that would be
unethical conduct, would it not?
Mr. Landry. That--it would be.
Mr. Buck. Mr. Horowitz, do you agree with that?
Mr. Horowitz. Depending on the facts and circumstances,
yes.
Mr. Buck. Okay. I yield back.
Mr. Gowdy. The gentleman from Colorado yields back. The
Chair would now yield to the gentleman from Texas, the former
U.S. Attorney, Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman, for holding this
hearing, but I have to confess that I am more than just a
little bit embarrassed that the American people have to see a
congressional hearing dealing with the absurdity of the subject
matter that we are dealing with today.
Right now, Mr. Chairman, at schools across America, we are
hopefully teaching our kids about the Constitution. And with
all due respect to my colleagues across the aisle, who keep
saying that we are hypocritical for asserting that the Federal
Government has a role here, I hope we are doing a better job of
teaching our kids about the Constitution than we apparently did
in teaching some of our colleagues. Because the very first
sentence of the Constitution in the preamble is where kids
learn that the primary role, the primary role of the Federal
Government is to provide for the common defense, and the
single-most important part of that is ensuring the sovereignty
and integrity of our territorial borders.
Mr. Chairman, that is the reason that we have a Federal
Government, that is the one thing that the Federal Government
is supposed to do, that is the business the Federal Government
is supposed to be in. It is not supposed to be mandating
healthcare decisions for Americans, it is not supposed to be
interfering with teachers and parents in decisions about kids'
education. We have a Federal Government to protect Americans
against people from outside our borders who might cause us
harm, to protect Americans like Kate Steinle in San Francisco
and Spencer Chauvin and Jermaine Starr in Louisiana, and Peter
Hacking and Grayson Hacking and Ellie Bryant in my district in
northeast Texas, all of whom were killed by illegal aliens who
violated the sovereignty and integrity of our territorial
borders to come to this country. And, tragically, these are
just five of the countless victims killed by illegal aliens
every year.
So, Mr. Chairman, if that is the primary role of our
Federal Government, if that is why we have a Federal
Government, are we really having a hearing about the fact that
instead of enforcing our Federal immigration laws, the Federal
Government is doing the exact opposite and, as General Landry
testified, is actually coercing cities into not complying with
Federal immigration laws? And then to add insult to injury, the
American people tuning in to this hearing today see that the
very same Department of Justice that is tying the hands of law
enforcement in places like New Orleans turns around and rewards
so-called sanctuary cities by handing out Federal funds even
though the conditions for those Federal funds is that the
recipients abide by Federal law?
And did I really hear correctly that two-thirds of all
Federal money going to law enforcement is going to ten
jurisdictions that refuse to comply with Federal immigration
laws and that harbor the most violent, violent criminal aliens
and refuse to cooperate with the Federal Government to deport
them? That, Mr. Chairman, is as shocking as it is shameful.
General Landry, you obviously share my frustration. It is
why you wrote to Attorney General Loretta Lynch and asked her
whether the Department of Justice, at the same time that they
were enthusiastically approving and supporting the New Orleans
Police Department policy, was actually also requiring the City
of New Orleans to adopt that sanctuary city's policy as part of
the consent decree. Did Attorney General Lynch respond to you?
Mr. Landry. She finally did respond to me some months later
with basically a nonanswer.
Mr. Ratcliffe. Well, if it makes you feel any better, at
least she responded to you. I have written her a lot of
letters, and she hasn't responded to any of mine, but we have
Ms. Gupta here.
Ms. Gupta, you have heard from Mr. Landry, and I have heard
the exchange between you and Mr. Butterworth and Mr. Richmond
about really trying to clear up the record here with respect to
the fact that this policy is and always was in compliance with
Federal law, but as has been pointed out, the record really
underscores that it hasn't been, and that is why Congressman
Richmond last year in the markup sought to remove that
provision to prohibit sanctuary cities from receiving Federal
law enforcement grants because of his stated belief that New
Orleans would be barred from receiving grants because of
immigration provisions in the consent decree.
Ms. Gupta, given that there are legitimate concerns in the
NO--in the New Orleans policy by folks here, did you seek a
judicial review of the policy by District Court to determine
whether or not it complied with Section 1373?
Ms. Gupta. The District Court at both points, both in
February and in issuing this revised policy, had reviewed the
policies. Yes.
Mr. Ratcliffe. Well, my time has expired, but since the
attorney general doesn't respond to any of my letters, Ms.
Gupta, I wonder if you might carry a message to her, and that
message would be on behalf of my constituents and millions of
Americans, that if she really believes in enforcing the rule of
law, then I think she ought to be prosecuting jurisdictions
that violate Federal immigration policy instead of writing them
checks.
And with that, I yield back, Mr. Chairman.
Mr. Gowdy. The----
Ms. Jackson Lee. Mr. Chairman----
Mr. Gowdy [continuing]. Gentleman from Texas yields back.
The Chair will now recognize himself.
Mr. Butterworth, what is the penalty for crossing a border
unlawfully?
Mr. Butterworth. I would defer to the Department of Justice
on any Federal----
Mr. Gowdy. Well, let's try it this way. Who has exclusive
jurisdiction over immigration cases?
Mr. Butterworth. Again, it is outside of my lane, but I
would say it is CBP or ICE.
Mr. Gowdy. So it would be Federal. It is exclusively
Federal----
Mr. Butterworth. Yes, sir.
Mr. Gowdy [continuing]. Both--and they are really--unless
you can think of something I can't think of, it is either
crossing a border unlawfully or overstaying a visa would be
about the only ways you could get in the country unlawfully,
only two ways I can think of.
You either cross one of our territorial boundaries or you
are invited in and you overstay your visa. And those are both
exclusively Federal, but I think you will agree with me that
almost all of our interactions in life are with State and local
law enforcement. It is not an FBI agent who stops us for
speeding. It is not an ATF agent who is working the bar scene.
So if most of our citizen police encounters are State and
local, and yet immigration is exclusively Federal, how are the
Federal officers supposed to know about folks who are not here
lawfully.
Mr. Butterworth. Sir, the Department of Homeland Security
has the PEP program, which I am not at liberty to speak on, but
I would say if Congress passed a law that commandeered every
local police officer and wanted to pay for that, then I think
we would welcome it.
Mr. Gowdy. When you saw--well, commandeer is such a
pejorative word. How about we just say cooperate? I mean, you
don't commandeer people for your terrorism task forces, do you?
You don't commandeer people for your narcotics task forces, do
you? It is called cooperation.
And yet you have a policy that says that New Orleans Police
Department members shall not make inquiries into an
individual's immigration status. What do mean by ``inquiries''?
Mr. Butterworth. Sir, if there is a criminal in New Orleans
and an officer interacts with that person and there is a
criminal warrant, that person will be----
Mr. Gowdy. See, I don't know what you mean by ``criminal.''
You mean if the person has--if there is probable cause to
believe that an offense was committed or if there is already an
outstanding warrant?
Mr. Butterworth. If there is a State, Federal, or local
warrant----
Mr. Gowdy. Well----
Mr. Butterworth [continuing]. Or probable cause that an
officer observed conduct that is criminal, they will arrest the
person.
Mr. Gowdy. All right. And then they can inquire as to the
person's status?
Mr. Butterworth. Our officers under this policy do not
inquire about a person's immigration status.
Mr. Gowdy. They can or cannot?
Mr. Butterworth. Under this policy, they do not inquire
about a person's immigration status.
Mr. Gowdy. Why not?
Mr. Butterworth. Because we believe that, one, this follows
Federal law, and two----
Mr. Gowdy. How are the Federal law enforcement officers
supposed to know who is here unlawfully if your officers don't
inquire? They are not the ones that are interacting with them.
They are not enforcing traffic laws. They don't respond to
domestic violence calls. The FBI doesn't have jurisdiction over
that; that would be your State and local officers. So how is
that supposed to happen?
Mr. Butterworth. Sir, I think your concerns are with the
broader system and not with this policy. In New Orleans, we
arrest every criminal that we interact with. We bring them to
the jail.
Mr. Gowdy. I love the way you phrase that. You arrest every
criminal you interact with. They are only a criminal after they
have had a jury trial, Mr. Butterworth. They are a suspect up
until that point.
Mr. Butterworth. Correct.
Mr. Gowdy. Mr. Horowitz, if their original policy was okay,
why did they revise it
Mr. Horowitz. I don't know the answer to that question, Mr.
Chairman. You would have to ask the civil rights division.
Mr. Gowdy. Well, you are a good lawyer, Mr. Horowitz. If
the original contract was fine, you usually don't draft another
one, unless you just love paying lawyers. I mean, if your
original indictment was okay, did you have a superseding
indictment?
Mr. Horowitz. Generally not.
Mr. Gowdy. No, you don't. So if the original policy is
fine, why did we get this brand-new policy?
Mr. Horowitz. Well, obviously our memorandum outlining the
concerns we had about the provision that then existed may well
have triggered the revisions.
Mr. Gowdy. I hate to be cynical, but I think you are right.
Ms. Gupta, you said you were a prosecutor. There was a
question I got way back in time that I never really had a good
answer for. Whenever a family member who had lost a loved one
to an act of violence to someone who was out on bond would ask
me, why was that person out of jail? I never really had a good
answer. I mean, you can cite the Constitution that you are
legally entitled to bond absent some circumstances, but that is
kind of a hollow explanation.
So what would the explanation be to those who have lost
loved ones to violent crime from people who are here unlawfully
and the Federal Government knows it?
Ms. Gupta. There is, for somebody who has been accused of a
violent crime, the NOPD is absolutely entitled in its authority
to prosecute to the law to the fullest. And there is nothing in
this policy----
Mr. Gowdy. No, no, no. You are either missing my point
inadvertently or you are missing my point intentionally. I
realize you prosecute people after the homicide. I am trying to
figure out how to prevent the homicide. What is the explanation
for why the person wasn't dealt with before the murder?
Ms. Gupta. But, let me just again make clear that the
reason we undertook the policy was to ensure that NOPD could
fight violent crime could get the kind of critical information
from victims and witnesses who need to share critical crime
information with the NOPD in order to solve and prevent violent
crime and----
Mr. Gowdy. Well, Ms. Gupta, you and I both know that we
rely on all sorts of witnesses, some of whom, frankly, expose
themselves to criminal liability in the process of cooperating.
So the notion that you have to give amnesty to people before
they will cooperate with law enforcement has not been my
experience.
But, Attorney General Landry, I am out of time. You asked
the question. How do you answer it when family members ask you,
why was this person not dealt with before they committed the
act of violence? I never really had a good answer to that one.
Mr. Landry. Unfortunately, I have had to answer that
question in Louisiana here lately, and the best way I answer
them is that our system in this country is broken.
Mr. Gowdy. With that, I would thank all the witnesses----
Ms. Jackson Lee. Mr. Chairman, can I ask unanimous consent
for 1 minute, please?
Mr. Gowdy. Well, if the gentlelady from Texas does it, then
I am sure the gentleman from Texas and the gentleman from
Colorado or going to want to do it too.
Ms. Jackson Lee. Well, let me be very brief, Mr. Chairman.
Mr. Gowdy. Okay. You can have a minute.
Ms. Jackson Lee. Thank you so very. First of all, I want to
make it very clear that I don't think there is one Member here
who does not feel the deep pain for the families who have lost
loved ones, particularly those who died in the terrible crash
trying to help others during the Baton Rouge disaster and
flooding. I am from Texas, and I feel for my brothers and
sisters in Louisiana and I was there for them in Katrina, so my
deepest sympathies.
I do want to make sure, however, General Landry, you are
not asking for New Orleans to be prevented from getting Federal
funds. Is that correct? You are not asking us to block New
Orleans from getting Federal funds?
Mr. Landry. I am asking New Orleans to follow Federal law,
like I would ask----
Ms. Jackson Lee. Right. But you are not asking----
Mr. Landry [continuing]. All of the citizens of New
Orleans.
Ms. Jackson Lee. I understand, but you are not asking for
there to be a declaration for New Orleans not to receive
Federal funds from the Department of Justice?
Mr. Landry. No. I have been asking for the State to
withholds funds from New Orleans for violating Federal law.
Ms. Jackson Lee. Okay. But let me ask Ms. Gupta. Is New
Orleans violating Federal law?
Ms. Gupta. No. New Orleans under this policy, the policy
does not violate Federal law. And right now we are working with
the City of New Orleans to ensure constitutional policing.
Ms. Jackson Lee. That they are communicating with ICE and
you are not blocking that, because that is what I want to make
sure is happening.
Ms. Gupta. That is right. The policy makes clear that NOPD
can communicate with ICE and request information from ICE about
a person's immigration status and citizenship.
Ms. Jackson Lee. And deal with criminal----
Mr. Gowdy. The gentlelady's time has expired.
Ms. Jackson Lee. Thank you so very much for your service,
all of you. Thank you.
Mr. Gowdy. With that, I would thank all four of our
witnesses.
Members are advised they will have 5 legislative days to
submit additional materials to the record.
With that, I thank you again to the four witnesses. And we
are adjourned.
[Whereupon, at 12:08 p.m., the Subcommittee was adjourned.]
[all]