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(Update: Gov. Jerry Brown signed the “sanctuary state” law on October 5, saying in a statement: “These are uncertain times for undocumented Californians and their families, and this bill strikes a balance that will protect public safety, while bringing a measure of comfort to those families who are now living in fear everyday.”)
If Gov. Jerry Brown ends up signing a pending bill to make California a “sanctuary state” for undocumented immigrants, it will be an about-face for the governor, who publicly opposed the idea of sanctuary cities several years ago.
While it’s often difficult to predict Brown’s actions, many Capitol observers expect him to approve it, given both California’s political landscape and strong Democratic antipathy toward President Donald Trump.
The governor’s office declined to comment on Senate Bill 54, but there are clues to his sympathies. During a March televised interview on NBC’s “Meet the Press,” Brown said: “I’m following a very fine line here. I want to work with him (Trump) where there is something good, but I’m not going to turn over our police department to become agents of the federal government as they deport women and children and people who are contributing to the economic well-being of our state, which they are.”
But as the state’s attorney general in 2010, during the Obama administration, Brown told the San Francisco Chronicle: “I don’t support sanctuary cities…. Just opening up the cities and saying our borders don’t mean anything, as the state’s chief law enforcement officer, I’m not going there.”
His views appear to have moved over the years—not unlike those of many of his fellow Democrats.
“We are in such a heightened political environment that even despite his instinct or what he might think is good or bad policy, he would have a difficult time sending that back when this Legislature is doing everything it possibly can to strike a defiant tone,” said Mike Madrid, a Republican political consultant.
The bill, sponsored by the Senate’s Democratic leader Kevin de León, would bar local and state law enforcement from cooperating with federal immigration enforcement or using any of their resources to do so, under almost all circumstances. Critics say it ties the hands of local sheriffs and police chiefs when dealing with violent and serious felons.
It won Senate approval on a party-line vote last month after being stripped of an urgency clause that would have required a two-thirds vote in both chambers. The move could be interpreted as a sign that moderate Dems had qualms about supporting it, but de León’s chief of staff Dan Reeves attributed it to de León’s need to focus political attention elsewhere that week—on a transportation tax deal that couldn’t advance without a two-thirds vote.
Given that the sanctuary bill won a Senate supermajority anyway, he added that de León will be assessing whether it could garner a similar margin in the Assembly—where passage with at least a simple majority is expected—“because he would still prefer immediate enactment.”
The bill is one of several the Legislature’s Democratic leaders are supporting to counter Trump, who has made the stepped up ejection of undocumented immigrants a central goal of his nascent presidency. He has threatened to deny federal funding to sanctuary jurisdictions and labeled California “out of control.”
Brown’s changing comments are reflective of shifting California political and public attitudes about sanctuary and undocumented immigrants in the state, experts say.
“He does appear to have an aversion to any declaration of sanctuary, but at the same time he is clear that he thinks state and local law enforcement should not be the puppet of federal law enforcement authorities,” said Kevin Johnson, dean of the UC Davis School of Law.
In addition, experts point to Brown’s choice for attorney general as a harbinger of his evolving take on immigration issues. In March, his pick for the job, Xavier Becerra, filed a brief in support of Santa Clara County’s challenge to Trump’s executive order, which went after sanctuary jurisdictions. Last week a judge upheld that challenge.
Brown isn’t the only California Democrat who has opposed sanctuary status in the past. Lt. Gov. Gavin Newsom, who is running for governor in 2018, is another.
When Newsom was mayor of San Francisco, the chilling murder of a father and his two sons by an immigrant gang member raised criticism over the city’s sanctuary status. The shooter had been released by the juvenile system years earlier, after committing other crimes. Newsom, who had been a sanctuary supporter, responded by requiring juvenile authorities to start reporting undocumented minors to federal immigration authorities after a felony arrest. The Board of Supervisors balked, passing an ordinance allowing such reporting only after a felony conviction. Newsom vetoed that, and when the supervisors overrode his veto, he nonetheless refused to enforce that expansive sanctuary policy, saying it violated federal law.
“We have to keep recalibrating sanctuary policy,” Newsom told the San Francisco Chronicle in a recent interview. He recalled attending funeral services for the victims in that 2008 case, and called it “a difficult time for me back then, politically and personally.”
But now Newsom emphasizes his support for sanctuary status, saying “we know that sanctuary counties and cities are safer than non-sanctuary locations. These policies advance safety by building trust between communities and the police.”
Bill Hing, law professor at the University of San Francisco, said while the Trump administration is stirring up palpable fear in immigrant communities, this bill gives the governor the opportunity to push back.
“California needs to counteract that fear, and I believe the governor understands that need and will actually sign this bill in spite of what he said six or seven years ago,” Hing said. “The governor understands we are dealing with a different world. The state needs to send a more reassuring message to its residents.”
A recent UC Berkeley Institute of Governmental Studies poll indicates Californians have conflicting views on sanctuary. The poll found 56 percent of state voters support communities declaring themselves sanctuaries and instructing law enforcement not to automatically call immigration agents to report undocumented immigrants. On the other hand, the poll found 53 percent oppose the right of cities and counties to ignore federal requests to detain those in the country illegally who have been arrested and are going to be released.
But polling indicates that support for sanctuary status has grown in the wake of Trump’s rise. Just two years ago, the same poll found that 74 percent of respondents said police should not be able to ignore a federal request to detain an undocumented person.
Brown has not been a go-along governor, so many observers add the caveat that there is still a slight possibility he would veto the bill.
It wouldn’t be the first time.
In 2012, Brown vetoed the first version of the California Trust Act, although he said he agreed with the bill’s intent to protect undocumented immigrants with minor offenses from being detained by local police at the request of the federal authorities.
“Under the bill, local officers would be prohibited from complying with an immigration detainer unless the person arrested was charged with, or has been previously convicted of, a serious or violent felony. Unfortunately, the list of offenses codified in the bill is fatally flawed because it omits many serious crimes,” he wrote in his veto letter.
He went on to say, “I believe it’s unwise to interfere with a sheriff’s discretion to comply with a detainer issued for people with these kinds of troubling criminal records.”
Two years later the governor signed a modified version of the Trust Act. It prohibits local law enforcement from holding undocumented immigrants charged with most low-level, nonviolent offenses for transfer to federal authorities. It does allow local authorities to detain, for federal immigration enforcers, those with felony convictions, those charged with some types of felonies, and those who have committed multiple misdemeanors.
During his State of the State address in January, Brown promised to stand behind the Trust Act.
This year’s proposed sanctuary bill, however, goes further. It would prohibit local police agencies from asking about immigration status, and it mandates they do not cooperate with Immigration and Customs Enforcement (ICE)—including for those charged with serious or violent felonies. There are some exceptions such as transferring some individuals if there is a judicial warrant or a previous conviction of a violent felony.
Assemblyman James Gallagher, R-Yuba City, calls the bill “bad policy” that would allow serious criminals to evade immigration enforcement. He also says it will cost local jurisdictions that contract with ICE as holding centers, including Yuba County, millions of dollars.
Gallagher points to the murder of Kate Steinle in San Francisco by an undocumented immigrant and repeat felon who had been deported five times.
“We need to have the flexibility to work with our federal partners to ensure that illegal immigrants who are committing crimes here against everybody in our community are properly detained or deported,” Gallagher said. “The governor has often been a reasonable check on legislation. I’m hopeful that he can see some of the same problems that many of us are identifying and if this were to pass through the Legislature that he could be the one, the adult in the room, to say ‘this is not the right way to go.’”
Johnson, the law school dean, said the governor must balance the concerns of police officers and sheriffs who see this as state meddling in their ability to enforce the law in individual situations against those who worry that immigrant trust in the police will breakdown if they are viewed as cooperating with federal immigration authorities.
“The governor is going to look carefully to ensure that state and local law enforcement officers policy decisions are respected while understanding also that federal immigration law should be enforced against serious criminals,” Johnson said. “There have been enough revisions to quell concerns about providing undue protections to persons convicted of crimes, and it seems he’s likely to sign this bill.”
Experts say Brown has changed over the years from the brash young governor who tried to turn away Vietnamese refugees in the 1970s to a governor in his fourth term who goes on national television and talks about immigrants as “God’s children.”
What has changed? Johnson contends that California’s hackles have been raised by a new federal administration bent on enforcing immigration laws to the full extent of the law, without any consideration of the human toll on immigrant families and communities.
“The harshness of the rhetoric, the rigor and aggressiveness of the policies and the refusal to compromise in the least is something that made the Trump administration very different from any president in recent memory,” he said.
Another factor is the evolution of the state’s electorate’s views in the two decades since Proposition 187, which sought to cut public benefits for the undocumented. Many of those in the current state Democratic leadership, including bill author de León, say they were moved to political action early in their lives because of that proposition.
Madrid also notes that a more diverse Democratic Party is pushing the older white liberal guard to change.
“He has certainly shown over 40, 50 years of public life that he is going to adjust to where the public sentiment is at,” Madrid said. “You’re seeing that adjustment. It’s not just Jerry Brown. It’s the aging Democratic understanding.”