Sanctuary Cities: Commonwealth v. Lunn

| March 12, 2018 | 0 Comments

Boston’s unofficial status as a “sanctuary city” is reinforced to a certain extent by state law. The Trust Act in 2014 tackled civil immigration detainers on the local (city) level in 2014. In July of 2017, the Massachusetts Supreme Judicial Court decisively ruled on the same issue; civil immigration detainers can no longer be carried out by Massachusetts officials at all. The case was Commonwealth v. Lunn.

I described exactly what a civil immigration detainer is in the Trust Act article, but it’s worth a brief overview. A civil immigration detainer is filed by a federal immigration officer when they want a state or local official to “hold” – effectively, arrest – an individual suspected of being undocumented. This holding can last up to 48 hours: 48 hours in which a person is held in custody with no criminal charge active, pending, or expected.  As you may remember from Arizona v. United States: “as a general rule, it is not a crime for a removable alien to remain present in the United States.” These civil immigration detainers do not, in any way, constitute a criminal charge.

It seems a little strange to be marking this difference so intensely, because the actual processes seem so similar. Whichever piece of paper is filed, an arrest warrant or a civil immigration detainer, someone still ends up in a jail. That ended up being exactly the issue in Commonwealth v. Lunn – that the detainer really does constitute an arrest, and that the reasons for such an arrest are not justified.

The background of the case

A man named Sreynuon Lunn was arrested and detained for a single criminal charge (unarmed robbery). A federal immigration officer issued a civil immigration detainer asking that Lunn be held until his immigration status could be properly confirmed. Lunn’s case was dismissed the following day, but he was still held in a cell at the Boston Municipal Court because of the detainer. Lunn’s lawyer filed a petition for his release the next day, and it worked its way up to the Massachusetts Supreme Judicial court.

The ruling itself

There are some very interesting parts of this ruling that depend on the particulars of Lunn’s case. However, the state-wide implications of the Lunn v. Commonwealth ruling depend on more general principles. I’m going to exclude some of the more case-specific arguments and focus more on the big stuff.

The flow of logic that really informed the court decision was as follows: (a) civil immigration detention constitutes an arrest under Massachusetts law. However, (b) immigration issues are not criminal and don’t require an arrest. Also, (c) immigration issues are federal, and Mass state officials can’t act as federal officers unless very specific protocol is followed.

(a)  The court is confident about the effective equivalence of civil immigration detention and regular arrests. “It is undisputed,” the ruling contends, that “holding someone…against his or her will constitutes an arrest under Massachusetts law”. This is a pretty simple ruling. It equates the real-world consequences of a criminal arrest to civil detention, both of which are 48 hours of holding against one’s will.

(b)  The court decided that civil detention is an unacceptable reason to hold someone in custody. The court admits certain instances where people are held technically without a charge – again, check out that excellent A&E TV show 48 Hours – but a critical part of that is the investigatory nature of the holding. Police officers must defend the necessity of criminal detention by actively investigating a crime that they believe an individual is involved in. In civil immigration detainer cases, “the custodian has no investigatory purpose”. There is, by definition, no crime to investigate.

Even if there were a crime, Massachusetts officials are only allowed to detain people on probable cause for a felony or on a misdemeanor witnessed by the officer. “Probable cause for a misdemeanor” isn’t a good enough reason to detain someone, so “probable cause for a civil infraction” can’t be either. Massachusetts state officials cannot arrest people for civil matters.

(c)   There are specific ways in which state/local officials can act effectively “as a federal immigration officer”, which I will get into in a separate article. The Immigration and Nationality Act, one of the major legislative works that governs immigration policy, sets up a system for this. State or local officials can enter into an “agreement” with the Attorney General, thereby gaining license to function as a federal official. Below is Section 1357(g)(1) of the INA. I bolded some particularly important parts.

The Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political sub- division and to the extent consistent with State and local law.

This law is very clear about exactly what it means. Officials can apply for this kind of agreement, but don’t have to; it specifically gives them license for investigation, apprehension, and detention, which implies that they did not have that license before; and the agreement does not give officials the right to bend state laws. The Massachusetts Supreme Judicial Court is, understandably, an authority on Massachusetts state law.

Now, there is an argument to be made for the state official’s actions in this case. They were operating without such an agreement. Section 1357(g)(10) of the Immigration and Nationality Act does specifically say that the specific “agreements” are not required for state or local officials to “cooperate” with the federal government in immigration matters, but the Massachusetts court finds active arrests to be a step beyond “cooperation”. “Cooperation” does not imply a change in how officials function, whereas making civil arrests without an “agreement” is a pretty extreme new power to take on.

With these principles laid out, the Massachusetts Supreme Judicial Court found that regular state and local officials in Massachusetts are not legally allowed to comply with federal civil immigration detainer requests.  This is a major occurrence in the history of Massachusetts immigration law which, much like the Trust Act, is very clear about non-federal roles in immigration. As states, cities, and the federal government all weigh in on immigration issues, every decision counts.

Lunn v. Commonwealth ruling:

1357(g)(10) of the INA:



<sub> featured photo credit: funcrunch funcrunch-20170905-8476 via photopin (license)

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Category: Politics, Social Activism

Lolo Serrano

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