The Times reports that NYC will stop honoring any requests from immigration authorities, unless it is accompanied by a warrant from a federal judge. And then, they may decline to honor the request if the suspect has not been convicted of a “violent or serious crime.”

New York City would stop honoring detention requests issued by United States immigration authorities without a warrant from a federal judge, according to a proposal announced by the City Council on Thursday.

The bill also stipulates that even with a judge’s warrant, the Police and Correction Departments may honor a request for a hold, known as a detainer, only if the subject has been convicted of a “violent or serious crime.”

With a federal detainer, ICE contacts a local government, and tells them to hold onto a person for 48 hours before releasing him or her, so ICE can come pick them up. New York is saying no to that. Now, New York City will even disregard a federal judge’s determination that probable cause is present, if New York does not think the crime is serious enough.

The article notes that these federal detainers are “voluntary.”

Federal judges, as Ms. Mark-Viverito’s office noted, have said that because federal detainer requests are voluntary, municipalities that honor them may be violating the Constitution. Courts in states including Pennsylvania and Rhode Island ruled this year that detainers did not amount to the probable cause required for people to be kept in jail.

Specifically, 8 C.F.R. 287.7 defines the detainer as a “request”:

The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.

But, the regulation also says that the agency “shall” maintain custody, which seems mandatory:

Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department

I don’t know enough about this area of law, but for any city to ignore court orders from federal judges finding probable cause to hold a prisoner seems problematic.

Now New York City, and not the United States, decides who is turned over. The statement from the author of the bill says just that.

“By further limiting ICE’s role in the detention and deportation of immigrant New Yorkers, we set the national standard for the treatment of our immigrant population,” Ms. Mark-Viverito said in a statement. “Families will no longer be needlessly torn apart by ICE’s dragnet enforcement efforts.”

And other cities seem to be taking similar steps.

The Council’s move would align New York with many other cities and counties around the country that have said they will limit their cooperation with detention requests from immigration authorities.

ICE protests the law:

But federal officials defended their practices, asserting that Immigration and Customs Enforcement “requests detainers on individuals arrested on criminal charges to ensure that dangerous criminals are not released from prisons or jails and into our communities.”

The agency added that the federal authorities would “continue to work cooperatively with law enforcement partners throughout New York as the agency seeks to enforce its priorities through the identification and removal of convicted criminals and other public safety threats.”

Although I haven’t seen the legislation, I wonder how it fits under Arizona v. United States. In that case, the Court held that Arizona could not interfere with federal immigration policies. Here, New York City is doing just that, and declining to cooperate with requests for detention requests–even if a federal judge signs off on it.

Now, I don’t suspect the United States will file a suit like they did in Arizona–where arguably Arizona was doing what the federal government should have been doing, but here New York is actively thwarting what the United States is trying to do.

Update: The LA Times reported that federal courts have ruled that the ICE detainers are not warrants, and are not consistent with the 4th Amendment.

Although some localities started limiting the number of immigration holds a few years ago, the trend of completely ignoring the requests gathered steam this spring after a series of federal court rulings determined that the immigration holds are not mandatory and that local agencies should not be compelled to follow them.

“I think there’s momentum,” said Kate Desormeau, an American Civil Liberties Union staff attorney who has helped litigate immigration hold cases. “The more localities recognize that they don’t have to do this — and that it doesn’t make sense for them to do this — makes it easier for other localities sitting on the sidelines to say they’re going to stop treating ICE detainers like warrants.” …

In March, the 3rd U.S. Circuit Court of Appeals in Pennsylvania ruled that states and local law enforcement agencies had no obligation to comply with immigration hold requests because the requests did not amount to the probable cause required by the Constitution to keep someone in jail. Other courts have come to similar conclusions.

On Monday, another federal judge in Chicago reaffirmed that local law enforcement agencies should not consider the ICE holds mandatory.

But the New York law seeks to disregard certain warrants they deem not serious enough. This is where the policy runs afoul.