Louisiana Supreme Court to weigh legality of ‘sanctuary’ policy at Orleans jail

Louisiana’s highest court could soon decide whether the Orleans Parish Sheriff’s Office’s longstanding immigration policy — which prohibits the office from holding people in the city’s jail at the request of federal immigration authorities — will be allowed to stand.

On Tuesday (April 28), civil rights lawyers defended the policy before the Louisiana Supreme Court, while attorneys for the state argued it should be abolished as it violates a two-year-old state law targeting so-called “sanctuary cities.”

The law, Act 314 of 2024, prohibits local law government bodies from adopting policies that limit the extent to which they can cooperate with federal immigration investigations and demands that local law enforcement comply with any immigration detainer requests. Detainer requests, typically issued by U.S. Immigration and Customs Enforcement, authorize local jailers to hold certain people — those facing potential deportation — in custody for up to 48 hours beyond their normal release dates in order to facilitate transfer into federal immigration custody.

The law, enacted in May 2024, is in direct conflict with the OPSO policy, which was enacted more than a decade ago and stems from a settlement in a federal civil rights lawsuit filed by two construction workers, Mario Cacho and Antonio Ocampo. Cacho and Ocampo were arrested by the New Orleans Police Department on minor charges in 2009 and 2010, respectively, and were given short sentences in jail. The two men alleged that in response to a request from ICE then-Sheriff Marlin Gusman illegally held them inside his facility for months after their scheduled release dates, well beyond what federal law authorizes for immigration detainers.

To settle the suit, in 2013, Gusman agreed to adopt an immigration policy that bars the office from honoring immigration detainers except in cases where the subjects of the hold requests are facing very serious criminal charges, including first degree murder, aggravated rape or treason, among others. The policy, which remains in effect today, also prohibits sheriff’s office employees from initiating investigations into jail detainees’ immigration status and places limits on how they can share information about detainees with federal authorities.

Last year, Louisiana Attorney General Liz Murrill sought to reopen the case, asking for the state to be allowed to intervene as a named party and for a federal judge to dissolve the 2013 policy, saying it violated Act 314.

“Like every Louisiana law enforcement agency bound by Louisiana law, the Orleans Parish Sheriff’s Office cannot obstruct or impede federal immigration authorities,” Murrill said in a statement on Tuesday. We look forward to the Louisiana Supreme Court’s swift resolution of this case, which should put an end to the federal consent decree that has perpetuated the unlawful sanctuary policy in New Orleans.”

Orleans Parish Sheriff Susan Hutson did not immediately respond to a request for comment.

In a ruling last year, federal Magistrate Judge Janis van Meerveld allowed the state to intervene in the case. She did not, however, rule on the motion to dissolve the immigration policy. In February, van Meerveld found that the case was centered on a matter of state, not federal, law and referred the matter to the Louisiana Supreme Court to determine whether and how the new state law would impact the 13-year-old policy.

In court filings, attorneys for Cacho and Ocampo argued that the justices need to consider three questions: Can Act 314 be applied to a pre-existing legal agreement? Does the state law conflict with local autonomy granted in the state constitution to cities, such as New Orleans, that operate under a “home rule” charter. And, does Act 314 go against a provision in the Louisiana constitution that prohibits the state from imposing “unfunded mandates” on local agencies?

In court, Alyssa Bernard-Yanni, who is representing Cacho and Ocampo, told the court the new state law alone may not be enough to dismiss a policy that was enacted from a federal judge’s order.

“Act 314 does not apply to federal consent decrees,” Bernard-Yanni said, referring to the language of the law.

Bernard-Yanni and Zachary Faircloth, who was representing the state, engaged in exchanges with the Supreme Court Justices over the intent of the recently enacted law.

Bernard-Yanni repeatedly referred to the legislative record and questions raised during the 2024 legislative session from Democratic lawmakers to the bill’s Republican sponsors about whether it would impact the federal consent order governing the OPSO policy.

During legislative debate in 2024, Sen. Blake Miguez, R-New Iberia, who sponsored the bill that became Act 314, said it was not meant to conflict with any federal court judgment.

At the time there were two New Orleans policies that became targets of criticism from immigration hardliners because they placed some restrictions on local cooperation with immigration investigations: the sheriff’s policy and a similar New Orleans Police Department immigration policy — adopted in 2016 to comply with the department’s wide-ranging federal consent decree. The NOPD consent decree, which was put into effect in 2013, was dissolved last year. Earlier this year, the department nixed the policy.

“The sponsors … disclaimed any conflict under the respective consent decrees,” Bernard-Yanni said.

Faircloth said the legislative record should not matter in this case because the federal consent order that governs the OPSO immigration policy states that the policy should remain in place, “absent a change in federal or state law applicable to immigration detainers”.

“We made the case over at the federal court,” Faircloth said. “The plain language in the (Cacho settlement) says a change in law as it relates to immigration detainers.”

Louisiana Supreme Court Chief Justice John Wiemer said the legislative record makes clear the intent of the sponsors of the law.

“If you go to the record — it says that it really doesn’t affect the (consent) decree,” Wiemer said. “There’s numerous statements to that effect. In context it seems like they were saying, ‘Look it can co-exist.’”

Justice Cade Cole, who said he was inclined to agree with Faircloth’s argument, pressed Bernard-Yanni on the issue of the sheriff’s office falling under New Orleans’ home rule charter. The charter governs the city government, which is separate from the sheriff’s office. And language in the state Constitution exempts sheriffs from being a part of such a charter.

Justice John Michael Guidry, however, acknowledged that although the sheriff’s office does not fall under the home rule charter it is funded by an entity — the city of New Orleans — that does.

With respect to the issue of unfunded mandates, Cole suggested that the federal government could address that by paying jailers for the time that they hold immigrants on detainers. However, Bernard-Yanni corrected that suggestion. Jailers hold immigrants on detainers, which are intended for short-term holds, at their own expense. If they enter into a contract with the federal government to operate a long-term detention center in their facilities, then they are reimbursed by the federal government for holding those individuals. The OPSO has no such agreement with the U.S. Department of Homeland Security.

Guidry questioned whether the change to state law can impact a local entity’s policy if it’s enacted through a federal judge’s orders.

“Statute talks about local law enforcement cannot have a sanctuary policy,” Guidry told Faircloth “And my question to you is, do you believe that they are operating under a locally implemented policy or under a federal consent decree?”

Before arguments closed, Weimer asked Bernard-Yanni if the correct remedy for the state is to seek a state court injunction against OPSO for not complying with Act 314, to which she answered that the state cannot enjoin a federal consent decree.

It is not clear when the Supreme Court will issue a ruling on the sheriff’s immigration policy and Act 314.