Helena responds to AG’s sanctuary city cease-and-desist letter

The City of Helena responded to an investigation by Attorney General Austin Knudsen into whether the municipality was breaking state law with an immigration resolution and asked for him to respond if proposed revisions “address your concerns.”

The letter, dated April 1, a formal response to the investigation, identifies what the city has done, what it meant to do and where it disagrees with points in the ordinance Knudsen outlined in a cease-and-desist letter sent by his office to Helena. 

“We strongly disagree that Helena Resolution No. 21062 (‘Resolution’) violates Montana’s Sanctuary Jurisdictions statutes, Mont. Code Ann. § 2-1-601, et seq., or any other applicable law,” said the letter sent by Boone Karlberg, a law firm the city hired to help represent it. “As the resolution’s preamble clearly states, the resolution was intended to ensure city officials are not commandeered to perform tasks for the federal government which they are not authorized to perform, and also to protect the dignity of Helena’s immigrant communities consistent with governing law.”

Helena passed the original resolution in January after citizen outcry over several high-profile detainments of undocumented immigrants across the state and concerns regarding tactics used by federal immigration enforcement agencies.

Knudsen, a former Republican legislator turned state attorney, said during a press conference earlier this year the city was breaking a law banning sanctuary cities in the state in adopting the resolution. This declaration turned into a formal investigation, with Helena eventually rescinding the resolution during a six-hour special town meeting held in the City’s Civic Center and attended by around 200 people.

Helena could have lost millions in grant funding if the Attorney General’s Office found the resolution to be in violation of the law, which appeared to cause frustration among city officials, as the resolution has also ballooned into local control issue.

But Helena city officials told the public they planned to try again, this time with input from Knudsen’s office. They pushed back on his assertions in the letter, while also trying to conform a new resolution to something the state might be willing to accept.

The letter from Helena says his “interpretation of the resolution is not consistent with its expressed intent, or its explicit language.”

It takes his letter point-by-point, starting with the allegation the city’s resolution “directly conflicts” with the sanctuary city law, which Knudsen quoted in his cease-and-desist letter.

“Your quote from Section 2 of the Resolution is incomplete,” the city response letter reads. “You left out the resolution’s express qualification that information sharing (with federal law enforcement authorities) is permitted ‘as required by law.’ Montana’s Sanctuary Jurisdictions statutes are law.” 

Additionally, part of the city’s now-rescinded resolution said Helena police officers would not “stop, pursue, interrogate, investigate, arrest, or otherwise detain a person based solely on their immigration status or suspected violations of immigration law.”

Law enforcement officers in Montana are statutorily obligated to hold a person already in custody if that person is the subject of an immigration detainer request. Essentially, if a person has committed a crime and is in custody, law enforcement has the duty to honor the immigration detainer request, and the Helena resolution does not say otherwise, officials have said.

What it does say is that Helena police officers aren’t going to arrest someone solely because he or she might be an undocumented immigrant.

“In the case of a detainer request, therefore, the request and corresponding statutory duty would constitute the basis for any detention,” the city response letter reads. “The resolution would not apply in that situation because the detention would not be ‘based solely on (the detainee’s) immigration status or suspected violations of immigration law.”’

Lastly, the cease-and-desist letter says the resolution could create a “chilling effect” on Helena police officers, saying the city was sending a signal that working with federal immigration enforcement agencies would be contrary to city policy.

“Furthermore, your allegation of an alleged ‘chilling effect’ seems designed to impermissibly regulate the free speech rights of locally elected officials,” the letter reads.

The letter was discussed briefly at a Helena City Commission meeting on April 6, with city officials saying the Attorney General’s Office had yet to respond.

In the new resolution draft sent to Knudsen’s office, it adds several clauses, including one saying, “the City Commission supports the Helena Police Department’s historical and routine collaboration, cooperation and lawful exchange of information with county, state and federal law enforcement partners, which are critical to the maintenance of safe Montana communities.”

It also softens language in other parts, including regarding masking of federal agents, which was an issue brought up multiple times in public comment periods this year over the resolution.

“The City of Helena supports open and transparent government operations including local law enforcement’s practice to identify themselves, display their badges and identifying information on their uniforms, and perform duties mask-free in compliance with Mont. Code Ann.,” the new resolution text reads.

The new resolution also explicitly states “The city is not a ‘sanctuary city’ and does not intend to become a ‘sanctuary city’ by adoption of this resolution.”

The city letter to Knudsen requested a 14 day response time.

In a similar instance, Knudsen recently demanded Gallatin County rescind a “policy” he argued doesn’t recognize ICE. Gallatin County responded, saying there is no “formal or informal” policy restricting cooperation with federal immigration enforcement.

Gallatin County Attorney Audrey Cromwell also requested a formal legal opinion from Knudsen regarding whether Montana counties may lawfully disseminate non-public confidential criminal justice information to federal agencies when requested for civil or administrative purpose, asking whether it violates Montanans’ right to privacy.

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