Thursday, May 18, 2017
The Commissioner and Mayor Respond
On Tuesday, the Columbia County Sanctuary Movement initiated a campaign, one of the goals of which was a new executive order codifying the resolution passed by the Common Council in March, "affirming the City of Hudson as a welcoming and inclusive city." Late this afternoon, Police Commissioner Martha Harvey and Mayor Tiffany Martin Hamilton issued the "Welcoming and Inclusive City Police Commissioner's Order," a five-page document which appears to be based on the Common Council's original two-page resolution. (Click on the pages that follow to enlarge.)
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This Order provides an outline of what the Hudson Police Department is doing anyway. "The [HPD] currently has a practice that it does not inquire [etc] ..."
ReplyDeleteAs for its enumerated exceptions, recall that the first fellow detained earlier this year was a sexual felon who'd been permanently ejected from the US years earlier. The HPD didn't have a hand in that, but this Order says it may have one in future.
The April detention which utilized City resources was said to be based on a federal warrant. If the latter is accurate, then that will be permitted too, exactly as the Common Council Resolution had already decreed.
But there's a problem with the way one phrase is used, and that's "probable cause."
The Order state's that probable cause "means more than mere suspicion or that something is at least more probable than not."
In one context, deciding "probable cause" is appropriate when the HPD is faced with a situation such as the first one described above, where someone has "illegally re-entered the country after a previous removal" AND has been convicted at any time of a serious crime (or is engaged in terrorist activity).
But in the Order's Appendix, the phrase "probable cause" may have a different application regarding "judicial warrants," defined as a warrant "issued by an Article III federal judge or a federal magistrate judge [and] based on probable cause."
In this way, the Order opens the possibility for second-guessing warrants issued by federal judges. The way it's written, we'd be giving some future zealot a local veto power over the federal-level judiciary, someone who feels that a given warrant doesn't satisfy his own criteria of probable cause.
It's surely an inadvertent loophole, but it's there. And it arguably provides a basis for the local nullification of federal laws. I don't believe the Order aims to achieve that, but we should take particular care not to become more than a welcoming and inclusive city.
There must be probable cause for a judge to issue a judicial warrant, and I don't think the language is meant to have the HPD or anybody else second guess the judge. The words "probable cause" are there to explain what a judicial warrant entails. That is the way I see it anyway, so I am not going to worry about it, unless the signers of this order suggest otherwise, which I very much doubt will ever happen.
ReplyDeleteIt's not the signers of this Order I'm worried about, but the unknown public servants who'll follow.
DeleteNo one should have to differentiate, as you have done, between the Order's two contexts of the phrase "probable cause."
An easy solution to avoiding the temptation to nullify federal law (the goal of many foolhardy people) is to drop those two words from the description of judicial warrants. The sentence in the final paragraph should read, "'Judicial warrant' means a warrant issued by an Article III federal judge [etc.]"
It should be a cardinal rule of lawmaking (and Orders, etc.) to use unambiguous language which is beyond the reach of predictable abuse.