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COMMENTS on Immigration Enforcement Directive, May 2017 Version

To Chief Marshman, Capt. Bell, Captain Krantz, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:

In the interest of timeliness, Portland Copwatch (PCW) is submitting these comments on Directive 810.10, now titled "Immigration Enforcement and Diplomatic Immunity" < https://www.portlandoregon.gov/police/article/641014>. It almost goes without saying since we've said it so often, but it would be of great help for the Bureau to point out which parts of the Directive have been re-ordered, rewritten, or are new. Our examination of the draft shows that, with very few exceptions other than the new Section 5 on Consular Notifications, most of the proposed policy has been rewritten in its entirety. As usual, our references to section numbers are from the Procedure part of the Directive unless otherwise noted.

In general, we are glad to see that many parts of the old Directive which provided loopholes for the PPB to cooperate with federal agencies* have been rewritten to clearly prohibit cooperation in many circumstances.
From Portland Copwatch < copwatch@portlandcopwatch.org>

To Chief Michael Marshman <Michael.Marshman@portlandoregon> Captain Jeff Bell < Jeff.Bell@portlandoregon.gov> Captain Mike Krantz < Mike.Krantz@portlandoregon.gov> Dennis Rosenbaum <rosenbaumandwatsonllp@gmail> Community Oversight Advisory Board-Mandi Hood < mandi.hood@portlandoregon.gov> Citizen Review Committee < crc@portlandoregon.gov> PPB Directives < PPBDirectives@PortlandOregon.gov>

Cc Adrian Brown < adrian.brown@usdoj.gov> Brian Buehler < brian.buehler@usdoj.gov> Jonas Geissler < Jonas.Geissler@usdoj.gov> Seth Wayne < seth.wayne@usdoj.gov> Jaclyn Menditch < jaclyn.menditch@usdoj.gov> News Media < newsmedia@portlandcopwatch.org>

Tue 15:10

Portland Copwatch
(a project of Peace and Justice Works)
PO Box 42456
Portland, OR 97242
(503) 236-3065 (office)
(503) 321-5120 (incident report line)
 copwatch@portlandcopwatch.org
 http://www.portlandcopwatch.org


COMMENTS ON IMMIGRATION ENFORCEMENT DIRECTIVE, MAY 2017 VERSION

To Chief Marshman, Capt. Bell, Captain Krantz, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:

In the interest of timeliness, Portland Copwatch (PCW) is submitting these comments on Directive 810.10, now titled "Immigration Enforcement and Diplomatic Immunity" < https://www.portlandoregon.gov/police/article/641014>. It almost goes without saying since we've said it so often, but it would be of great help for the Bureau to point out which parts of the Directive have been re-ordered, rewritten, or are new. Our examination of the draft shows that, with very few exceptions other than the new Section 5 on Consular Notifications, most of the proposed policy has been rewritten in its entirety. As usual, our references to section numbers are from the Procedure part of the Directive unless otherwise noted.

In general, we are glad to see that many parts of the old Directive which provided loopholes for the PPB to cooperate with federal agencies* have been rewritten to clearly prohibit cooperation in many circumstances. For example, 2.3 says "Members shall not honor or comply with federal immigration detainer requests." It would be hard to be clearer than that. Sections 3.1, 3.2, 3.2.1, and 3.3 all repeat that the PPB should not assist ICE or other agencies with enforcing federal immigration law. While one goal of the Directives project is to streamline, sometimes repetition is necessary.

However, in Section 3 it's also stated that the PPB can assist federal agencies with "pre-planned missions." The old draft talked about "mission[s] to enforce federal immigration laws." In theory, this section would include such missions and are thus in conflict with the prohibitions. Providing traffic control (3.2.1) or "law enforcement cover" (3.2.2) to agents trying to deport Portland residents is akin to aiding and abetting people engaged in criminal conduct.

Furthermore, Section 3.5.1.2 allows cooperation with the feds to "investigate and make arrests for any controlled substance offense." Since the US Department of Justice considers legal Oregon marijuana to be an illegal controlled substance, this sets up a legal and ethical dilemma for the Bureau. Similarly, an exception to not working with federal agencies is if there is a judicial warrant (2.4.1), as opposed to an administrative warrant. Since deportations, if used at all, should be limited to the most serious felons, we suggest the exception only be for serious felony warrants.

Also, as far as loopholes go, there are too many places in the draft in which the Bureau is told not to cooperate with investigations that are based "solely" on federal immigration law (Sections 1.1, 2.1, and 2.4). In Section 3.5.2, one of the only paragraphs directly addressing the Homeland Security Investigations unit (HSI), the Directive says "members shall not engage in the surveillance of a person or group based solely or primarily upon a person or group's actual or perceived national origin or immigration status." This is good policy-- it expands the too-narrow "solely" criterion to include "primarily." This expanded phrase should guide the other parts of this Directive and be applied to Directive 344.00 on Bias Based Policing.

One other item of concern is the issue of so-called "Law enforcement cooperation visas" (Sections 1.1.1, 1.2.1 and 1.3.1). While we welcome the idea that witnesses and victims of crimes should not be subject to deportation for cooperating in investigations, we hope there are safeguards to keep such visas from being used to leverage immigrants as informants in exchange for paperwork. Similarly, Section 1.3.1.1 says that officers have to document in a police report if a person volunteers their immigration status-- but that raises serious issues since witnesses and victims aren't read Miranda rights and don't necessarily know about their right to remain silent. Such a caution should be included in this Directive to prevent those who cooperate in prosecuting criminals from becoming criminal suspects.

In terms of staying focused on the issues within the scope of this Directive, it's not clear why Policy Section 3 states that "When necessary, the Bureau partners with the DHS to assist in their efforts to manage emergency situations, strengthen domestic security and combat a wide array of global criminal threats related to drug and human trafficking, terrorism and human rights violations." It seems this is only included to make sure Homeland Security doesn't view Portland as shutting the door on the feds. Since this Directive is about immigration and diplomats, it should likely not be in there, particularly the way it's phrased.

We are pleased to see the Directive referencing the State Executive Order and City Resolution, and the updated reference to ORS181A.820 all clarifying that Oregon will not expend its law enforcement resources on federal immigration law.

CONCLUSION

As always, we appreciate the ability to weigh in on these important issues. We again ask that the Bureau consider a longer time period for all comments to be made, especially when new drafts like this one are so substantively different from the previous version.

--dan handelman
--Portland Copwatch

PS There is a reference to CIS in Section 6.1 but there is no explanation what that means.

*We called attention to this in our March 2017 comments

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