The NYT has a follow-up on Charlie Savage’s earlier article about all the gun safety provisions lying dormant at DOJ. It describes the gaps in the background check system due to states not sharing their data with the federal government.
Nearly two decades after lawmakers began requiring background checks for gun buyers, significant gaps in the F.B.I.’s database of criminal and mental health records allow thousands of people to buy firearms every year who should be barred from doing so.
The database is incomplete because many states have not provided federal authorities with comprehensive records of people involuntarily committed or otherwise ruled mentally ill. Records are also spotty for several other categories of prohibited buyers, including those who have tested positive for illegal drugs or have a history of domestic violence.
In the past I’ve drawn a comparison between our country’s treatment of terrorists and gun nuts, arguing that it has prioritized the less urgent threat.
But this background check database raises interesting comparisons with DHS’ Secure Communities, particularly the effort to ensure that any undocumented person arrested for a crime gets deported. Like terrorism, Secure Communities has hit a point of diminishing returns. As with terrorism, Secure Communities is built to allow for false positives.
Nevertheless, the government has prioritized getting that database completely functioning, with participation from every state.
While the law also allowed the Justice Department to withhold some general law enforcement grant money from states that did not submit their records to the system, the department has not imposed any such penalties, the G.A.O. found.
Not so with gun buyers, apparently.
And the comparison here offers one other lesson. One reason for the delay in data-sharing from the states is the difficulty in implementing an appeals process.
After the Virginia Tech shooting, Congress enacted a law designed to improve the background check system, including directing federal agencies to share relevant data with the F.B.I. and setting up a special grant program to encourage states to share more information with the federal government. But only states that also set up a system for people to petition to get their gun purchasing rights restored were eligible under the law — a key concession to the National Rifle Association — which proved to be an extra hurdle many states have not yet overcome.
Frankly, ensuring people have due process is one of the least offensive things the NRA does (would that they championed the civil rights of felons more generally).
If we demand this for gun ownership, why don’t we demand it for far more damaging terrorism and deportation data mining?
As the press is reporting, SCOTUS largely overturned AZ’s “Papers Please” law. It left just one part–but the most important part–in place for further court review: the part that required cops to check the status of people they stop and require them to check the status of people they arrest.
Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.
In deciding not to overturn this part of the law, Anthony Kennedy’s opinion noted that Congress already encourages local officials to consult on immigration status.
Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training
needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens).
So the ruling says we will have to wait to see how AZ courts interpret the breadth of the law before finding it conflicts with US law by permitting, for example, the detention of suspected aliens until a status determination can be completed.
Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress doesnot allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.
There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.
SCOTUS has basically permitted this part of the law to remain on the books until AZ is shown to be overstepping Federal jurisdiction on detention decisions.
But while that happens, the Obama Administration will be (and has been) expanding a mandatory status check program at the federal level, Secure Communities. Just since this litigation began, for example, the Administration has made it mandatory for local law enforcement entities to participate in Secure Communities.
And while that only pertains to those booked into jail–so not the jaywalking Latino used in Kennedy’s opinion–it does make it easier for AZ to justify part of the program. And it makes the process of checking status more routine by mandate.
Ultimately, what happens with this part of the law may come down to the fight between DOJ and Joe Arpaio as much as anything else. He’s precisely the kind of person who will abuse the provisions, and this will give DOJ an additional lever to respond if and when he does and is upheld by state courts.
But all that may lead to some Latinos spending a lot of time in jail before then.
Last Friday, DHS’ Inspector General released two reports purportedly written in response to an April 28, 2011 request from Zoe Lofgren to determine whether Immigration and Customs Enforcement and DHS more generally were lying about the Secure Communities program, and if so, if doing so was criminal.
As a threshold matter, the completion of two reports, rather than just the one, seems to be a bit of a smokescreen. Lofgren asked if government officials lied. In response, DHS’ IG decided to answer two questions:
In addition to reframing Lofgren’s question to avoid fully considering why people had misinformed Congress and localities (and also, given the scope of their work, to avoid inquiring whether DHS, rather than ICE, had decided to do so), DHS IG first decided to see whether Secure Communities was effective. According to the list of major contributors included with each report, with the sole exception of Communications Analyst Kelly Herberger, two entirely different teams conducted the reviews. The report that at least sort of responded to Lofgren’s questions was issued on March 27, whereas the non-responsive efficacy report was issued April 5, though both were apparently sent out Friday together. ICE responded to both reports on the same day–February 23, 2012–so it seems the different release dates comes because the efficacy report was revised in some way (the date on the conveyance letter for the efficacy report is in a non-standard sans serif font, which sort of makes you wonder…).
In short, the submission of these two reports together stinks, though it presumably had the desired effect, as the NYT reported “mixed reviews” for Secure Communities. HuffPo and LAT were less compliant, focusing instead on the communications report instead.
That said, the purported “good” efficacy report doesn’t actually prove that Secure Communities is working all that well. Here’s the summary of their results:
We performed this audit to determine if Secure Communities was effective in identifying criminal aliens and if Immigration and Customs Enforcement appropriately prioritized cases for removal action.
Secure Communities was effective in identifying criminal aliens, and in most cases, ICE officers took enforcement actions according to agency enforcement policy. Under Secure Communities, the agency expanded its ability to identify criminal aliens in areas not covered by its other programs. In addition, it was able to identify criminal aliens earlier in the justice process, some of whom it would not have identified under other programs. Secure Communities was implemented at little or no additional cost to local law enforcement jurisdictions. Although ICE was able to identify and detain criminal aliens, field offices duplicated the research associated with their detention, and officers did not always sufficiently document their enforcement actions. To improve the transparency and thoroughness of its processes under Secure Communities, the agency needs to eliminate the duplication of research and ensure that officers fully document their actions.
One of the ways they quantify that success is with a claim that they had identified 692,000 “criminal aliens.”
According to ICE, as of September 30, 2011, it had spent most of the $750 million and identified more than 692,000 criminal aliens.
Never mind that the program has become less efficient over the years. In FY2009, ICE had 1,087 fingerprint matches for each activated jurisdiction, in FY2011 ICE had 372 matches. To some degree that’s expected–jurisdictions along the southern border joined in first–but also suggests getting every jurisdiction in the country involved has diminishing returns.
More troubling, the report also reveals that some of the people–it doesn’t say how many–in IDENT are citizens.
Individuals with fingerprints in IDENT include persons with an immigration history, such as aliens who have been removed but have reentered the country, immigration visa applicants, legal permanent residents, naturalized citizens, and some U.S. citizens.
IDENT includes two categories of U.S. citizens:
- Citizens who have adopted a child from abroad (which involves U.S. Citizenship and Immigration Services), participated in a trusted traveler program, or may have been fingerprinted by immigration officials for smuggling aliens or drugs across U.S. borders;
- Individuals who were not citizens at the time that their fingerprints were collected, but subsequently became citizens through naturalization, legal permanent residency, or immigration.
So if you’ve adopted a kid from China? You’re in this database too. Continue reading
The AP has another installment of their series on the NYPD intelligence department’s mapping of ethnic neighborhoods in New York. As always, you should read the whole thing, as well as the documents showing the spooks’ data collection on innocent Moroccans and Moroccan-Americans.
One question I came away with, though, was how this program interacted with Department of Homeland Security’s Secure Communities program.
Secure Communities, recall, involves information sharing from local law enforcement to the FBI to DHS.
When state and local law enforcement arrest and book someone into a jail for a violation of a state criminal offense, they generally fingerprint the person. After fingerprints are taken at the jail, the state and local authorities electronically submit the fingerprints to the Federal Bureau of Investigation (FBI). This data is then stored in the FBI’s criminal databases. After running the fingerprints against those databases, the FBI sends the state and local authorities a record of the person’s criminal history.
With the Secure Communities program, once the FBI checks the fingerprints, the FBI automatically sends them to DHS, so that U.S. Immigration and Customs Enforcement (ICE) can determine if that person is also subject to removal (deportation). This change, whereby the fingerprints are sent to DHS in addition to the FBI, fulfills a 2002 Congressional mandate for the FBI to share information with ICE, and is consistent with a 2008 federal law that instructs ICE to identify criminal aliens for removal. Secure Communities does not require any changes in the procedures of local law enforcement agencies or jails.
By that process, DHS identifies people it can deport so as to meet the quota set for them by Congress.
As DDay has written repeatedly, this process has led to the deportation of low-level undocumented people, not the hardened felons the program was designed for. And this, in turn, makes local law enforcement less effective, because it makes immigrant communities less willing to cooperate with the cops because doing so might get them deported.
As the documents made available by AP make clear, when the NYPD’s spooks case out businesses, they note whether they are owned by citizens of ethnic (even Italian!) descent, or (as with the Eastern Nights Cafe profile, above) non-citizens. This effectively means NYPD’s spooks are, among other things, creating a database of the statuses of key members of ethnic communities throughout the city. Also, since the NYPD had a set of questions to ask anyone arrested or on parole from the Moroccan community, it also means the normal law enforcement process was being used to collect a database of information on immigration statuses and habits.
The AP story seems to suggest that NYPD keeps this information in a database separate from their other database system.
The information was recorded in NYPD computers, officials said, so that if police ever received a specific tip about a Moroccan terrorist, officers looking for him would have details about the entire community at their fingertips.
Current and former officials said the information collected by the Demographics Unit was kept on a computer inside the squad’s offices at the Brooklyn Army Terminal. It was not connected to the department’s central intelligence database, they said.
The first installment of this series reported that the NYPD had shredded some of its documents to keep aspects of the program–including the fact that they were “building dossiers on innocent people, as these latest documents show they were–secret.
Some in the department, including lawyers, have privately expressed concerns about the raking program and how police use the information, current and former officials said. Part of the concern was that it might appear that police were building dossiers on innocent people, officials said. Another concern was that, if a case went to court, the department could be forced to reveal details about the program, putting the entire operation in jeopardy.
That’s why, former officials said, police regularly shredded documents discussing rakers.
But they did pass some of the information to the CIA via back channels.
Intelligence gathered by the NYPD, with CIA officer Sanchez overseeing collection, was often passed to the CIA in informal conversations and through unofficial channels, a former official involved in that process said.
Mind you, that doesn’t mean this information was shared with DHS’ Immigration and Customs Enforcement, leading to deportations.
But given information sharing laws included within the PATRIOT Act, this intelligence might well be legally available to the Federal government (but possibly illegal for them to keep, given that it is potentially illegal domestic intelligence).
All of which leads me to wonder: has the CIA-on-the-Hudson make NYC less safe, because it has turned the local cops into officers combining law enforcement, intelligence, and immigration mapping?