by Richard Rifkin, Legal Director, Government Law Center
New York is about to engage in a new and untried procedure in creating legislative and congressional districts following the 2020 census. It could make a big difference in the 2022 elections as well as in elections that follow for the next ten years and beyond.
Ever since the early days of this country, state legislatures, which have the authority to draw both state legislative and congressional districts, have used this authority to gain political advantage for the majority party and its candidates. This is known as “gerrymandering” because in 1812 Massachusetts Governor Elbridge Gerry signed into law a bill that created districts that gave a significant advantage to his political party. A local newspaper noted that one of the districts looked like a salamander, giving us the term that remains common today.1 The practice of gerrymandering remains similarly common.
New York’s Independent Redistricting
In 2014, New York took a significant step in trying to at least limit this practice. In that year, the voters approved an amendment to the state constitution creating an independent redistricting commission. This
amendment left the power to finally approve district maps with the legislature, but it gave the new commission the authority to draft the initial maps. This procedure will be implemented for the first time in the upcoming 2021-2022 legislative and congressional redistricting following the 2020 census.
The constitutional amendment that created the new commission defines in detail its structure and sets forth its authority.2 It consists of ten members. The four party leaders in the legislature each appoint two members. The eight members so appointed must then choose two additional members, neither of whom shall have been enrolled in the preceding five years in either of the two major political parties. Each member must be a registered voter, but he or she may not for the last three years have been a state officer or employee, member of Congress, registered lobbyist or political party chair.
The spouse of a statewide elected official, member of Congress or member of the legislature within this three-year time period is also precluded from being named as a commissioner.
The 2014 amendment creating the commission includes within the constitution many details usually left to the legislature,
which ordinarily adopts an implementing statute or statutes.3 For example, this amendment places in the constitution the commission’s quorum requirements as well as its voting requirements, which vary depending upon whether the political parties of the Assembly Speaker and Temporary President of the Senate (who is also the majority leader) differ or are the same. It also is specific as to how two co- executive directors are to be appointed, again with variances depending on the parties of the legislative leaders. It even describes what happens if there is an inability to agree on the executive directors. Finally, it describes the procedure to be followed if there are not a sufficient number of votes to adopt any specific mapping plan.
The amendment similarly spells out the details of the procedures to be followed with regard to developing and approving the maps. This was formerly the exclusive province of the legislature. With the recent amendment, the process is now divided between the commission and the legislature.
Procedures for Drawing Maps4
The initial maps are to be prepared by the commission. The commission is required to make public by September 15 its “draft redistricting plans, relevant data, and related information”. After this information is publicized, the commission is required to hold public hearings in each of the five counties in New York City as well as in Nassau and Suffolk Counties. It also must hold hearings in Albany, Buffalo, Syracuse, Rochester and White Plains. This is going to be a difficult timetable since the 2020 census data from the federal government has been delayed and may not be available
until the end of July. The commission is required to report to the legislature when it submits its maps “the findings of all such hearings”.
The Commission’s maps must meet several requirements. The districts should not abridge “racial or language minority voting rights”. They should consist of “contiguous territory” and be as compact “as practicable.” In addition, they may not be drawn to favor or disfavor incumbents, candidates or parties. Finally, the one person, one vote requirement and the rules for senate districts with respect to the inability to split towns and counties remain in effect.
The Commission is obligated to draft its plans for the congressional, senate and assembly districts and submit those plans, along with the implementing legislation, to the legislature by January 15, 2022.
Following this submission, there is to be a vote in both houses on this legislation, which may not be amended. If approved by both houses, the bills are submitted to the Governor for his consideration. Should the proposed legislation fail, either because of the vote in either house or a veto by the Governor, the matter is sent back to the commission. Within 15 days, but no later than February 28, the commission is required to submit a second plan and implementing legislation. Again, the legislature must vote on the bills without amendment and, if adopted by both houses, sent to the Governor for his approval or disapproval. If this fails, the legislature is then free to amend the bill and the matter proceeds through the legislative process.
Thus, despite all the new procedures, the legislature continues to have final authority.
One important factor in the votes taken by the legislature on the bills submitted by the commission is the number of votes required in each house to adopt the bill. Under the constitutional amendment, it depends upon whether the two houses are controlled by the same party or different parties. Since both houses are controlled by the same party in the 2021-2022 legislature, a two-thirds vote in each house is required to approve any plan submitted by the commission.
Beyond the new commission and the process set forth in the constitution, the landscape for litigation will be significantly different in the upcoming redistricting. Every recent redistricting proposal has led to extensive litigation, and there is no reason to believe that the upcoming process will be any different in this respect. However, litigants may need to look to different courts this year.
The extensive detail set forth in the state constitution is likely to serve as the basis for challenges to whatever is done. Any violation of any of the detailed procedures raises the prospects for litigation, with the plaintiffs claiming that there has been a failure to comply with the constitution.
However, such an action could be brought only in the state courts, as it would involve a failure to comply with the state constitution.
Much of the litigation in previous years has taken place in the federal courts. However, in 2019, the United State Supreme Court decided Rucho v. Common Cause,5 where it held that any claim that the approved
districts are in violation of the federal constitution because of partisanship raises a political question rather than a legal question. This means that any partisanship claim cannot give rise to a federal action.
While some claims, such as racial discrimination, can still be brought in the federal courts, any claim based on partisanship, of which there have been many throughout the country, will not survive.
The federal courts no longer have the authority to hear such cases, thereby making the gerrymandering of districts likely to continue throughout the country. However, the restrictions now found in New York’s constitution may well limit this practice, as it allows for challenges on this basis to brought in the state’s courts.
We are entering a new era in New York with respect to redistricting. How this will play out is, at this point, quite uncertain.
1 See podcast of Jennifer Davis, February 10, 2017, Library of Congress.
2 New York State Constitution, Article III, Section 5-b.
3 The legislature earlier this year gave second passage to a proposed constitutional amendment that would modify certain details regarding the commission and some of its procedures and operations (S. 515; A. 1916). This amendment will be presented to the voters at this year’s general election in November. Because it may be rejected by the voters and some of the changes would appear to be too late to be applied in 2022, this explainer is based on constitutional provisions as of April, 2021.
4 New York State Constitution, Article III, Section 4(b).
The term “sanctuary cities” is commonly used in the field of immigration to refer to communities that decline to cooperate with federal immigration enforcement. But recently, other movements have used the term “sanctuary cities” to refer to other causes unrelated to immigration. In particular, Second Amendment activists and anti-abortion activists have urged local governments to adopt ordinances that protect gun ownership and restrict abortion. This explainer examines the legal and policy issues surrounding these movements.
The Second Amendment and anti-abortion activists who urge local defiance of laws with which they disagree are part of a larger trend in which local officials assert the power to defy federal or state laws, including rulings of the U.S. Supreme Court. Thus, for example, so-called “constitutional sheriffs”—a right-wing anti-immigrant movement—assert that within a sheriff’s county, “the power of the sheriff even supersedes the powers of the President.”[i] (To say this assertion is legally incorrect would be an understatement.)
These movements differ fundamentally from the localities and states that identify themselves as immigration sanctuaries. Immigration sanctuaries fundamentally aim to comply with federal obligations, not defy them. As explained in an earlier Government Law Center explainer on “sanctuary” jurisdictions, immigration sanctuaries principally identify areas in which the law does not require them to cooperate with federal immigration enforcement, and—in those areas of lawful discretion—choose not to support immigration enforcement. Their right to do so is protected by basic principles of federal constitutional law under which localities cannot prevent the federal government from enforcing its own laws but need not assist it in doing so.
Immigration sanctuaries exercise their right not to commit their resources to federal enforcement activities, but gun and anti-abortion sanctuaries have a different goal: preventing the enforcement of state gun laws, and preventing people from exercising their right to choose abortion under the U.S. Constitution.
I. Background: The SAFE ACT and the Right to Bear Arms
Governor Cuomo signed the SAFE Act, a complex law with multiple provisions, into law in January of 2013. It was partly a response to the shootings in December 2012 at Sandy Hook Elementary School in Newtown, Connecticut.[ii] Despite online rumors to the contrary, the weapons used in the Sandy Hook shooting included an AR-15 style assault weapon with high-capacity (30-round) clips.[iii] Many other mass shootings have also used AR-15s or similar rifles.[iv] The SAFE Act bans weapons and magazines like those, and includes numerous other provisions as well. They are summarized in the following sections.
Banned weapons and ammunition
The assault-weapon ban. The SAFE Act restricts the ownership of “assault weapons” and large-capacity magazines. The provision on assault weapons strengthens New York’s ban on assault weapons by expanding the definition of “assault weapon” to encompass any semi-automatic guns with detachable magazines that possess at least one feature commonly associated with military weapons. (Before the SAFE Act, a weapon fell under the assault-weapon ban if it had two features.) Listed features included telescoping stocks, conspicuously protruding pistol grips, bayonet mounts, flash suppressors, and grenade launchers.[v]There is a grandfather clause under which people who lawfully own assault weapons before the SAFE Act may continue to possess them if they register the weapons with the State Police.10
The Second Circuit (the federal appellate court with jurisdiction over New York State) in 2015 held that the SAFE Act’s expanded ban on assault weapons did not violate the Second Amendment.[vi]
Limits on large-capacity magazines. The Act also bans all large-capacity magazines that have the capacity to hold more than ten rounds of ammunition.[vii] Originally, the SAFE Act prohibited magazines that held more than seven rounds; but the Legislature recognized that seven-round magazines are difficult to buy, and so it amended the Act. The amended Act limits capacity to ten rounds with a new seven-round load limit, meaning that a ten-round magazine cannot be loaded with more than seven rounds outside of a firing range or official shooting competition.13
The Second Circuit upheld the ten-round capacity limit.[viii] But it struck down the seven-round load limit, saying that it would not reduce the number of ten-round magazines in circulation, and therefore was “entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation.”[ix]
Registration and background checks
The Act also strengthens systems for registration and background checks. It:
Establishes a statewide gun license and record database, which contains records of all licensed handgun owners;[x]
Requires background checks for all gun sales, except those between family members;
Requires that sellers of ammunition register with the State Police, perform background checks on buyers, and make their sales electronically accessible to the State.
The Act also makes clear that certain groups won’t pass background checks because the Act makes them ineligible for licenses:
criminal defendants found to lack capacity, or found not guilty by “reason of mental disease or defect”;
those who are “mentally ill and dangerous”; and
people against whom an order of protection has been issued.
Members of the Libertarian Party of New York filed a lawsuit to challenge New York’s licensing and background-check requirements, but the Second Circuit rejected this challenge in 2020, finding that the requirements do not violate the Second Amendment.[xi] The court also found that language in the statute that required a showing of “good moral character, integrity and the absence of good cause to deny a license” was not unconstitutionally vague.[xii]
The SAFE Act’s other provisions have not featured as prominently in litigation. These include a provision that creates safe-storage requirements, and other provisions that create new and enhanced penalties for illegal gun use in multiple criminal statutes.
After the SAFE Act became law, gun-rights advocates mobilized to undermine it in whatever ways they could.[xiii]
II. “Second Amendment Sanctuaries” in New York
Gun-rights advocates in New York State and elsewhere have recently begun advocating so-called “gun sanctuary” policies. The gun-sanctuary movement wants local law enforcement, including sheriffs, local legislators, and district attorneys, to not enforce the SAFE Act.[xiv] These gun-rights advocates make appeals to their county legislators, district attorneys, and sheriffs, asking them to essentially ignore the SAFE Act.[xv]
A group called “2ANYS” (formerly known as “2AWNY”) is the major gun-sanctuary advocate organization in New York State.[xvi] 2ANYS refer to gun control laws as “Albany’s unconstitutional civilian disarmament industrial complex,”[xvii] and calls itself “New York State’s premier civilian rearmament enterprise.”[xviii] National groups, like the gun lobby group Gun Owners of America, have also supported “Second Amendment sanctuaries.”[xix]
What’s in a “Second Amendment Sanctuary” Law?
Along with other claims about the unconstitutionality of gun-control laws, 2ANYS asserts that “Local governments have the legal authority to refuse to cooperate with state and federal firearm laws that violate [Second Amendment] rights and to proclaim a Second Amendment Sanctuary for law-abiding citizens in their cities and counties.”[xx]
2ANYS proposes a “Second Amendment Sanctuary” ordinance that bars local officials from “[k]nowingly and willingly participat[ing] in any way in the enforcement of any Unlawful Act.” Their draft ordinance defines “Unlawful Act” to include any federal or state law that “bans or effectively bans, registers or effectively registers, or limits the lawful use of firearms, firearm accessories or ammunition (other than a fully automatic firearm which is made unlawful by federal law).”[xxi]
The proposed sanctuary ordinance then lists the kinds of laws that 2ANYS deems unconstitutional. It’s a very broad list. It includes any tax or fee on firearms or ammunition, any registration or tracking of firearms, any restrictions on ownership, and indeed “[a]ny prohibition, regulation, and/or use restriction related to ownership.”[xxii] There are exceptions for gun ownership by people who have been convicted of felonies, and people “who are prohibited from possessing firearms under federal law.”[xxiii]
All laws that fall into these broad groups would be “considered null, void and of no effect” in a jurisdiction that adopts 2ANYS’s model ordinance. The ordinance goes on to say that anyone who violates it may be sued, and that “[n]either sovereign nor official or qualified immunity shall be an affirmative defense in cases pursuant to this section.”[xxiv] It also proposes fines for people who violate its terms.[xxv]
Finally, the proposed ordinance says, “Any peace officer may enforce this ordinance.”[xxvi] It’s not clear what “enforcing” the ordinance would entail.
Current “Gun Sanctuaries” in New York
As of this writing, four jurisdictions in the State of New York have adopted “gun sanctuary” resolutions. Two are towns, Broadalbin in Fulton County[xxvii] and Grand Island in Erie County,[xxviii] and two are counties, Jefferson[xxix] and Wyoming.[xxx] These resolutions don’t go as far as 2ANYS’s model ordinance. Instead, they express support for the Second Amendment and opposition to any laws interfering with that right. They are “non-binding, largely ceremonial resolutions speaking out against state gun-control measures under consideration at the time” and are a way for those opposing the SAFE Act and other strict gun regulations to openly disagree with enforcement of those laws.[xxxi]
Officials in the Towns of Solon,[xxxii] Truxton, and Cincinnatus (all located in Cortland County)[xxxiii] have taken the further step of adopting ordinances that prohibit local municipal employees from enforcing future gun control legislation.[xxxiv] They do not implicate any existing gun control regulation, like the SAFE Act. Known as the “Second Amendment Preservation Act,” it defines “unlawful acts” as those laws that affect a person’s right to possess a firearm, firearm accessories, or ammunition.[xxxv] The fact that none of these towns has a police department means these laws are no more than an expression of support for the Second Amendment. Nevertheless, they can cause confusion about what type of activity is legal within that municipality.
What Do Advocates Argue?
Second Amendment Sanctuary advocates often cite the U.S. Constitution.[xxxvi] As recently as February 2020, Lewis County in Western New York held an open forum to hear from constituents about a possible sanctuary policy that would protect gun owners from enforcement of the SAFE Act. A gun-rights advocate at the meeting argued the SAFE Act attacked his personal rights and the “inalienable right to security” protected by the Second Amendment.[xxxvii] Those opposed to the gun-sanctuary resolution argued the SAFE Act helped prevent gun violence in New York State, and one woman used an example of suicide for why New York State needs stricter gun laws.[xxxviii]
The gun-rights advocate then argued that suicide should not be considered when making Lewis County a Second Amendment Sanctuary County, saying suicide “was not a malicious use of firearms towards another individual and hardly can be categorized as a violent crime.”[xxxix]
County legislators in Lewis County said they must discuss a possible resolution based on the effort of the gun-rights advocates, and one legislator stated that “the people gave a very passionate presentation, and I support them fully,” which may indicate a possible trend in the future of gun sanctuary resolutions passing if advocacy work continues to grow.[xl]
Law Enforcement Officers’ Rejection of “Second Amendment Sanctuaries”
Gun-sanctuary advocates encourage sheriffs to ignore the SAFE Act and to not arrest those in violation of the SAFE Act.[xli] However, if officers do not comply with this state law, they are subject to removal by the governor,[xlii] or at a minimum, pressure to resign.[xliii]
Some sheriffs who may disagree with the SAFE Act personally are nonetheless not ignoring the SAFE Act when performing their jobs. [xliv] One sheriff (identified as “conservative” by local media) stated that if they did not enforce the law on the books on the job, “[it] would make [themselves] or any other sheriff derelict in their duties and subject to removal.”[xlv]
A different sheriff said that even though he personally did not like the law, he took an oath to enforce all of the laws, even the ones he personally opposes and will continue to enforce the SAFE Act.[xlvi] And in response to the passage of these ordinances in Cortland County, the county sheriff there has stated that he is not bound by them and will continue to follow New York state law.[xlvii]
IV. Anti-Abortion Sanctuaries
In the context of abortion, an increasing number of local jurisdictions have adopted provisions called “sanctuaries for the unborn,[xlviii] “safe cities and counties,”[xlix] or “safe havens for the unborn.”[l] The purpose of these sanctuary provisions is to essentially “outlaw” abortion in the jurisdictions they cover, even though Roe v. Wade,[li] the Supreme Court decision legalizing abortion, is established law.[lii] The 1973 decision ruled that abortion constituted a personal liberty protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, and therefore protected the right to have an abortion to varying degrees depending on the trimester during which the abortion is performed.[liii] In Planned Parenthood v. Casey, a plurality of the Court affirmed Roe but changed the standard, upholding abortion-related laws that do not “unduly burden” the fundamental right to abortion and are rationally related to legitimate state purpose.[liv] The Supreme Court has repeatedly affirmed that laws are unconstitutional if they have “the effect of placing a substantial obstacle in the path of a woman’s choice.”[lv]
The groups behind the “sanctuary for the unborn” movement are frustrated with what they perceive to be the lack of sufficient action at the federal and state level to prohibit abortion, so they have instead turned their focus on local governments as a means to effectively eliminate the locations where abortions can be performed. Mark Lee Dickson, the director of Right to Life of East Texas, explains, “We’re really trying to protect the culture and the atmosphere that these cities already have.”[lvi]
While they recognize that these laws may have no legal effect, supporters encourage local governments to adopt these ordinances with the intent that the laws will become effective immediately, if the Supreme Court overrules Roe v. Wade. This outcome, however, is unlikely given the fact that the Roe court specifically found that the Texas abortion laws were unconstitutional and Texas courts have ruled that statues that have been declared unconstitutional are null and void. [lvii]
The supporters also know that these local resolutions and ordinances will limit the numbers of abortions being performed by creating confusion for women choosing whether to exercise this right.[lviii] They also support their adoption as a means to create opportunities for legal challenges that might result in the Supreme Court ultimately overturning Roe v. Wade.
The first local jurisdiction to pass a resolution declaring its county to be a “Sanctuary for the Unborn” was Effingham County, Illinois, in 2018.[lix] As of May 1, 2021, twenty-two cities and counties in Texas have adopted ordinances and resolutions prohibiting abortions within their city limits.[lx] Dozens more have been proposed in other jurisdictions throughout the state. The movement has also expanded to other states where local jurisdictions in Utah (5),[lxi] North Carolina (2),[lxii] Mississippi (1),[lxiii] New Mexico (3),[lxiv] and Nebraska (2)[lxv] have adopted similar resolutions and ordinances. And in November 2020, voters in Santa Rosa County, Florida, passed a referendum declaring Santa Rosa County a “sanctuary for life.”[lxvi]
The Provisions of Abortion Sanctuary Resolutions and Ordinances
The specific language of the resolutions and ordinances vary from jurisdiction to jurisdiction, but there are some similarities. In general, they provide a statement that all life should be protected and that life starts at conception, classify abortion as “an act of murder with malice aforethought,” and criminalize abortion except to save a mother’s life. Some of the ordinances also create civil causes of action against health care providers and organizations that help women seeking abortions.[lxvii]
For example, in Texas, the ordinances allowfamily members to sue an abortion provider if a provider has performed an abortion on their family member within city limits.[lxviii] Further, the Texas ordinances, as originally passed, named as “criminal organizations,” among others, the Texas Equal Access Fund and the Lilith Fund for Reproductive Equity, organizations that provide funding “to low-income people who can’t afford an abortion” and advocate for pro-choice legislation and reproductive rights.[lxix] The Texas ordinances limited their ability to purchase property or establish a physical presence within city limits.[lxx]
Another group, called the Personhood Alliance, promotes a “tiered approach,” encouraging local governments to first adopt resolutions before ordinances as a means to avoid lawsuits challenging their efforts by establishing strong local support for their efforts.[lxxi]
As their President, Les Riley, explained, “[t]he most effective pro-life ministry is local and relational. We’re seeing several sanctuary efforts being pursued by different groups now, but too often, they’re plagued with the same compromises and exceptions that have hurt the core mission of the pro-life movement for the last 50 years. These efforts intend to defy Roe—a goal we share. But at the same time, they wait for the unjust decision to be overturned. We must engage in these local efforts to take back our towns, by applying consistent moral principles and rejecting judicial tyranny. And we must involve Christians in protecting children and families in their own backyards, while also making sure principled local leaders have a strong community support system for the battle ahead.”[lxxii]
Their work has led to the adoption of “Safe Counties” resolutions in Davie County[lxxiii] and Yadkin County,[lxxiv] North Carolina, and in Pearl County, Mississippi,[lxxv] and the establishment of affiliate organizations in many states. They provide resources, such as templates for petitions and resolutions, for their supporters to use to expand the movement.[lxxvi]
VI. Challenges to Anti-Abortion Sanctuaries
Critics of the Movement
The most vocal critics of these sanctuary cities in Texas are the Texas Equal Access Fund and the Lilith Fund, who argue that the ordinances, while knowingly contrary to federal abortion law, spread misinformation about what is actually legal and confuse people about what their rights actually are.[lxxvii] The Texas American Civil Liberties Union (ACLU of Texas) stated they have “receiv[ed] calls from individuals asking whether they are still allowed to get abortions.”[lxxviii]
Like local district attorneys in New York, attorneys general and district attorneys in multiple states where these ordinances and resolutions have been passed, including in Texas, North Carolina, Illinois, New Mexico, and Utah, have spoken out against enforcing legislation criminalizing abortion.[lxxix] A group released a joint statement in June 2019 providing that they would use their discretionary powers to not prosecute women who seek abortions and the health care providers who care for them.[lxxx] They explained, “[l]egal precedent, as established by the highest court in the land, has held for nearly 50 years that women have a right to make decisions about their own medical care including, but not limited to, seeking an abortion. Enforcement of laws that criminalize healthcare decisions would shatter that precedent, impose untenable choices on victims and healthcare providers, and erode trust in the integrity of our justice system. To fulfill our obligations as prosecutors and ministers of justice to preserve the integrity of the system and keep our communities safe and healthy, it is imperative that we use our discretion to decline to prosecute personal healthcare choices criminalized under such laws.”[lxxxi]
In response to the ordinances passed in multiple municipalities in Texas and frustration over the confusion created by their adoption, the ACLU of Texas filed a lawsuit in federal court on behalf of the TEA, or Texas Equal Access, Fund and the Lilith Fund against seven of the Texas municipalities that passed abortion sanctuary ordinances.[lxxxii] The complaint alleges that the ordinances violate the First Amendment by “suppress[ing] lawful speech about abortion and other reproductive healthcare,” discriminating against pro-choice speech, and restricting association with people who perform and assist with abortions. They also argue that the ordinances are unconstitutionally vague, making it impossible for a person to know if their conduct violates the law. Further, the complaint alleges that by labelling the plaintiffs as “criminal organizations,” the ordinances “unconstitutionally punish them through the legislative process, without a trial.” [lxxxiii] The organizations claim they cannot “disseminate truthful information” without fear of criminal and civil liability and that the ordinances have a chilling effect by “creat[ing] the impression that residents of Defendant cities can no longer exercise their right to an abortion.”[lxxxiv]
In response to this lawsuit, the municipalities agreed to amend their ordinances by repealing those sections that labelled these organizations as criminal. The ACLU subsequently withdrew the complaint and as of now, the ordinances stand, as amended.[lxxxv] Nevertheless, litigation continues as the Lilith Fund filed a defamation lawsuit against Right to Life of East Texas and Dickson for allegedly repeatedly calling them criminal organizations.[lxxxvi] That litigation is currently pending.
Despite these lawsuits, at least an additional forty-two local governments in Texas alone are considering adopting ordinances that prohibit abortion. And while most of those jurisdictions do not have any providers offering abortion services, at least one, Lubbock, Texas, does.
Late last year, a group of residents in Lubbock, Texas, petitioned the city council to adopt an ordinance that prohibited abortions from being performed within city limits, except to save the mother’s life.[lxxxvii] These efforts began after Planned Parenthood announced it would open a clinic in Fall 2020. Despite strong pressure from city residents and hours of public comment at meetings, the city council voted against the ordinance, relying upon outside legal counsel’s advice that the ordinance conflicts with and is preempted by Texas state law and that the private cause of action is unconstitutional. [lxxxviii] Undeterred, supporters petitioned to have the measure placed on the ballot, and on May 1, 2021, the measure passed with more than 60% of voters supporting the measure.[lxxxix] Unlike other “sanctuary cities for the unborn,” Lubbock is the only municipality where a health care provider, in this instance, Planned Parenthood, is currently providing abortion services. It remains to be seen what the next legal steps will be and if local law enforcement officials will attempt to enforce this ordinance against Planned Parenthood and its employees. In the meantime, Planned Parenthood announced that it will remain open and the ACLU vowed that it will take any necessary legal steps to ensure that the rights of the residents of Lubbock are protected.
Despite the dubious legal validity of gun and anti-abortion sanctuaries, they are viewed by supporters as both symbolic and practical ways of advancing their causes and promoting values they perceive as threatened. Local governments are, perhaps, the most direct venue to express their concerns, given their officials’ susceptibility to strong pressure by local grassroots movements and the close personal relationships some members of the communities have with the elected officials. Proponents of sanctuary movements are essentially arguing that governments are not bound by federal and state laws they believe violate fundamental rights, and that those local governments have an obligation to defy or obstruct those laws.[xc]
That said, absent legal challenges to their existence, sanctuary ordinances are dependent on local officials to enforce or ignore them. The Lubbock sanctuary ordinance, however, might just present the test case that courts could use to determine the extent to which local governments have the authority to carve out exceptions to state and federal laws regarding established constitutional rights.
[v] “Semiautomatic” is defined as “any repeating rifle, shotgun or pistol, regardless of barrel or overall length, which utilizes a portion of the energy of a firing cartridge or shell to extract the fired cartridge case or spent shell and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge or shell” and “Assault weapon” is defined as “a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a thumbhole stock;
(iv) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(v) a bayonet mount;
(vi) a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator;
(vii) a grenade launcher; or
(b) a semiautomatic shotgun that has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a thumbhole stock;
(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) a fixed magazine capacity in excess of seven rounds;
(v) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics:
(i) a folding or telescoping stock;
(ii) a thumbhole stock;
(iii) a second handgrip or a protruding grip that can be held by the non-trigger hand;
(iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip;
(v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
(vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned;
(vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or
(viii) a semiautomatic version of an automatic rifle, shotgun or firearm;
(d) a revolving cylinder shotgun;
See S.B. 2230; N.Y. Penal Law § 265.00(22) (McKinney 2020).
[lx] The Cities of Waskon, Naples, Joaquin, Tenaha, Gilmer, Rusk, Gary, Wells, Westbrook, Colorado City, Big Spring, Whiteface, East Mountain, New Home, Morton, Ackerly, Grapeland, Goldsmith, Carbon, Gorman, Murchison, and Latexo have all adopted ordinances. The Cities of Ellis, Gilmer, Omaha, and Lindale have all adopted resolutions.
[lxi] Utah County, Utah, and the Cities of Riverton, Highland, Enterprise, and Lehi, Utah.
[xc] James Madison, Virginia Resolutions, Founders Online (Dec. 21, 1798) https://founders.archives.gov/documents/Madison/01-17-02-0128 (“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the pro⟨gress⟩ of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”).
For 911 calls about someone in crisis, who should respond? Many cities have decided it should not solely be police. A national poll conducted in June found that 70% of likely voters support a non-police response for 911 calls about mental health crises, and 68% support the creation of non-police emergency response programs.1
In many jurisdictions, police are the first to respond (first responders) to 911 calls about people experiencing issues related to mental health, homelessness, and substance abuse. However, they often do not have adequate training to deal with these calls.2
Programs replacing police with social workers, mental health counselors, and medical staff have been in operation for at least a year in Austin, Texas; Eugene, Oregon; Olympia, Washington; and Edmonton, Canada. Eugene’s program has operated since 1989, and in 2019 responded to 20% (24,000) of all 911 calls, with a police backup request rate of 0.625% (160).3These programs are focused on providing more appropriate services and
reducing government spending. Other cities have recently begun or approved crisis response programs of their own.4
Potential benefits include budgetary savings, diverting individuals from a higher level of care, and reducing dependence on policing and the criminal justice system to deal with people experiencing crisis. There are also obstacles, as well as many questions about program design and implementation. Some considerations are universal, and some vary based on how each program is structured, as well as its size and scope.
Although the programs vary, takeaways for local governments attempting to implement a crisis response program are to (i) include stakeholders in the program design process,
(ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency-response processes, (iv) have adequate funding with access to mid-year increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and (viii) have the ability to transfer or refer clients to other service providers.
Who Operates Crisis-Response Programs?
The organizations that operate crisis- response programs generally do so through a subcontract with the city or police department (with the exception of Edmonton’s program, which is run by a nonprofit).5
Eugene’s CAHOOTS is administered by White Bird Clinic,6an independent nonprofit which has provided community-based healthcare services (including mobile crisis response) since 1969, and is well known in the Eugene community.7Workers “are White Bird Clinic employees, contracting with the police department, and the county.”8
Austin’s EMCOT program is administered by the Travis County (which encompasses Austin) Local Behavioral Health Authority,9 called Integral Care, which is a community- based mental-health center that has been providing behavioral health services for over five decades.10In addition to mobile call- response staff, some mental-health counselors are stationed at Austin’s 911 call center.11Travis County EMS also oversees the Community Health Paramedics program, which targets frequent users of 911 and provides mobile case management, both medical and non-medical.12Workers are employed by the Travis County Healthcare District13through a contract with the city.14
Olympia’s Crisis Response Unit is administered by Recovery Innovations International, which is a mental health services provider from the neighboring county with “14 crisis programs in five states,” although it has no other alternative first response programs.15The Administrative Services Division of the Olympia Police Department handles the contract, because that division does not include sworn officers.16
Edmonton’s 24/7 Crisis Diversion program is administered by REACH, a “backbone” organization, or “community-based coordinating council” funded by the city.17 Program workers are employed by Boyle Street Community Services and Hope Mission (two local nonprofits that provide similar services in Edmonton), and the call- takers are employed by the Canadian Mental Health Association (211).18
What Kind of Services Do Alternative First Responders Provide?
They are voluntary, meaning people can refuse services and opt for a police or EMS response instead. Because they are mobile, they can engage clients directly without being dispatched, except for Austin’s EMCOT, which is dispatched by 911 or other first responders.19Currently, 911 calls about a person in crisis are generally responded to either by police officers trained in a forty hour “Crisis Intervention Team” program, or by police officers with no training beyond the police academy.20 Current mobile crisis response programs are run either at the county-level or by a nonprofit organization; workers are not
dispatched after 911 calls, but at the request of law enforcement on scene. The programs are generally underfunded.21People experiencing issues related to untreated mental illness are sixteen times more likely to die during encounters with police than other civilians.22
Also, programs can either preempt other first responders from responding to a call, or allow other first responders to leave a scene when it is unnecessary for them to stay.23 911 call-takers in Eugene use the same channel to dispatch CAHOOTS and the police department, both of whom use the same radios. If a CAHOOTS worker has a relationship with the person being called about, they can communicate with the officer to either replace them as a responder or co-respond. Additionally, other first responders can call CAHOOTS workers to the scene of a call, and “leave the scene” with CAHOOTS workers. This saves time for those first responders to respond to other calls.
All programs can attend to non-emergency medical issues, although in Austin those are generally dealt with by the Community Health Paramedics.24Workers in all of the programs also all have the ability to transfer or refer clients to appropriate services or agencies with the client’s consent.25
CAHOOTS and EMCOT workers also teach methods of crisis management and conflict resolution to law enforcement and community members.26
In Eugene, CAHOOTS workers respond to a variety of other non-emergency calls, and
provide services including, but not limited to:
conflict resolution and mediation;
dispute mediation and resolution between family members, roommates, or clients at group homes or agencies;
delivering death notifications;
grief and loss counseling;
substance use and abuse counseling;
providing water bottles, socks, and other basic supplies to people;
addressing housing crises;
first aid and non-emergency medical care;
resource connection and referrals;
providing direct funds for essential items;
transportation to services, and
situations in general that do not involve emergent medical or criminal issues.27
When other first responders notice someone in distress from a call (like someone who called about a home invasion), they can ask that person if they’d like CAHOOTS to come and help them process what they’re feeling.28At least once, a CAHOOTS worker has de-escalated a situation by standing between an officer and a civilian to prevent the officer from using mace, but it is unclear if that is a common or accepted practice.29CAHOOTS did not originally have the ability to do most of these things, but as it gained expertise and trust with the department and community, its functions expanded.30
Appendices B and C are tables of available response data for 24/7 and CAHOOTS.
Connecting Clients to Other Service Providers and Programs
Organizations that host crisis-response programs are mostly local organizations that did similar work in their communities before they began administering their respective programs.31This helps them to connect clients to multiple agencies to provide sustainable support, especially for clients with more complex needs.32Common partners include healthcare providers, hospitals, homeless shelters, homeless- outreach agencies, mental-health clinics, substance-abuse programs and clinics, and other emergency-services diversion programs. Austin’s EMCOT program works in tandem with Austin’s other nontraditional 911 program, the Community Health Paramedics.33Olympia’s CRU program was funded by a 2017 public-safety levy approved by voters.34That levy also paid for a program called Familiar Faces, which targets and assists frequent users of emergency services to better support them with long-term care.35
Point of Access
The CAHOOTS program coordinator said their “biggest struggle” is figuring out how clients can access their services, and said it is the “key thing” for communities implementing a crisis response program.36 The Eugene Chief of Police testified before the Oregon legislature that the most important aspect of the program was its ability to be dispatched by the 911 call center.37
All programs can be called by other social service agencies.38Only Edmonton’s 24/7 program is not able to be dispatched directly by 911 call centers.39CAHOOTS and EMCOT did not originally have that ability,40while Olympia’s Crisis Response Unit was integrated into the 911 process from its beginning.41Austin’s original crisis response program, MCOT, is available at a standalone phone number housed at Integral Care’s clinic, while EMCOT is available to 911 dispatchers, EMS, and law enforcement.42Austin 911 dispatchers are now trained to ask whether the caller needs police, fire, or mental health services.43In Olympia, some clients have asked for a standalone number because when they call 911 and ask for the CRU, police “intercept” their call.44In Edmonton, REACH attempts to direct as many 24/7 calls to 211 as possible in order to save 911 callers and dispatchers the time of answering, assessing, and transferring calls; 72% of the program’s 2018 calls were directly to 211 in 2018.45EMCOT also receives referrals and has staff at hospitals and the county corrections complex to connect individuals who may be unable to overcome barriers to services post- release.46
Call-takers are trained to screen for calls that their crisis-response programs are able to respond to, and assess whether there is a likelihood of violence or danger.47A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of this report.
Except for Edmonton, where 24/7 partners with 211, each city used its preexisting 911
call center to dispatch calls. In Eugene and Olympia, program workers also carry police radios with the ability to divert calls directly from police, initiate their own interactions, or respond to first responders at a scene to provide assistance.48In Austin, EMCOT workers are stationed at the 911 call center49with iPads, where they can take calls directly from dispatchers, or from first responders at scenes.50Appendix F is a diagram of the CAHOOTS’ dispatch process.
Diversion from Higher Level of Care/PoliceResponse
CAHOOTS called for police backup in 150 of their 24,000 responses last year, or a rate of 1 in every 160 responses (0.625%).51They respond to about 70% of their calls without any other first responders.52Last year, CAHOOTS responded to roughly 20% of all calls dispatched by 911 for Eugene and the neighboring city of Springfield.53Appendix C is a table of available response data for CAHOOTS.
98.7% of law enforcement referrals to EMCOT divert from arrest, and 75.1% of EMS referrals divert from emergency- department transfer and admission.54EMCOT relieves first responders within 10– 15 minutes after arriving at a scene 85–90% of the time.55Arrests of people with mental illnesses in Austin during the program’s first year reduced by 30 percent.56Since the program began in 2013, 7,214 clients have been served, with 3,182 dispatches in 2019.57
Travis County’s Community Health Paramedics “served 1,164 individuals in fiscal year 2019.”58The program is being
expanded, and the county EMS association noted that the city’s recent efforts to decriminalize homelessness have made the program more effective.59By 2019, the program had “contributed to a 60 percent reduction in emergency calls from its target population.”60
In the first two months of Olympia’s Crisis Response Unit, it responded to about 700 calls.61
Following the previous “MAP” program, after 4 years of Edmonton’s 24/7 program, it had responded to over 6,000 unique clients and 38,000 crisis events.62In 2019, 25% to 30% of calls were referred to more appropriate services.63Appendix B is a table of available response data for 24/7.
Each program operates with mobile two- person teams.64Programs use vans that are owned by the host organization or the city and filled with supplies.65
EMCOT workers are master’s level clinicians.66The Community Health Paramedics staff of 15 is divided by the populations they serve (i.e., chronically homeless, elderly, recently incarcerated), and have an average of 15 years of experience.67Olympia’s CRU is “made up of nurses and behavioral health specialists.”6824/7 workers must have at least two years of experience in delivering community-based services, experience working with partners and stakeholders, and
a knowledge and understanding of poverty- related issues.69It is preferred that workers have a degree in social services or a related
field, but candidates who have relevant and related experience are also considered.70
Each CAHOOTS team consists of one medic (a nurse, paramedic, or EMT, who must be state certified with at least an EMT-B certification) and a mental health crisis worker who has substantial training and experience in the mental health field, with a degree preferred but not required.71Some of the medical staff are current nursing students.72Many workers are trained to perform both roles.73Training for CAHOOTS workers lasts “6 months to a year.”74Due to their training, in 31 years of the program no staff member has ever been in a major traffic collision or suffered a major injury while responding to a call.75“A non-judgmental and client-centered approach to communication and service delivery is emphasized. Trainees begin as observers, watching trained team members handle a variety of calls. They also attend weekly debrief sessions to promote better client care as well as address issues of boundaries, rescuing, and worker self-care in order to avoid burnout. Workers must also pass an extensive background check.”76 On average, the training is 500 hours in the field and up to twenty hours in the classroom.77CAHOOTS workers rely on trauma-informed de-escalation and harm reduction techniques.78The administrative coordinator of the program said there are a “trifecta” of qualities they look for: technical knowledge in the area of medical and behavioral health; a belief in client-centered care; and personal experience in crisis situations.79The coordinator said those qualities are helpful so workers can “bring the level of empathy and compassion to the work that we expect of our workers, and
that that’s a really tricky mix to sometimes find.”80
All of CAHOOTS’ services are confidential, free, and voluntary.81CAHOOTS workers log details of their dispatches, including names and addresses of people they interacted with, their mental health diagnoses (if any), and behavioral patterns.82Teams utilize these logs when they are dispatched, allowing them to know what works for specific clients based on past interactions.8324/7 workers record their interactions with clients in an app created by REACH to store client information, so the information can be shared between teams in order to best match the needs of clients.84 The app also automatically generates reports and maps with the aggregate data.85Before creating the app, REACH conducted an impact assessment to determine potential client privacy issues.86
Most CAHOOTS clients are experiencing homelessness, and just under a third have a severe mental illness.87CAHOOTS also responds to calls from the University of Oregon Eugene Campus88and local schools.89Appendix E is a chart with the most common CAHOOTS call factors. 24/7 mostly assists people who are homeless, but some disorder calls for service are diverted from police dispatch to the teams.90The City of Edmonton is in the process of analyzing its 911 dispatch data to see how many calls related to mental health, addiction, and homelessness could be diverted to an expanded 24/7 program.91Of all the people served by EMCOT in 2019, 29% were experiencing homelessness.92
How Programs Got Started
White Bird Clinic, which runs Eugene’s CAHOOTS program, ran a mobile crisis- response program directly through their clinic for years before CAHOOTS began. CAHOOTS has increased from a budget of $288,000 and a staff of 15 in 201093to a $2.1 million budget94and a staff of over 40 in 2020.95
The pilot program for Austin’s EMCOT was known as MCOT, and began in 2006 “without engagement from APD or EMS.”96 The program grew in 2012 as a result of DSRIP funding.97DSRIP is a type of “Medicaid Redesign” which compensates service providers with Medicaid funds to provide services more efficiently.98In 2013, Integral Care created the EMCOT (Expanded MCOT) program to be available to on-scene first responders.99 Later, EMCOT began to take calls directly from 911 operators, and also has clinicians at the 911 Call Center to respond to calls.100 Unlike other cities’ pilot programs, MCOT still operates as a standalone service.101
Austin’s Community Health Paramedics program was created in 2009 and is a DSRIP program administered by the Travis County EMS.102The program is currently being expanded with city funding.103
Olympia’s CRU is in its second year and was integrated into the emergency response system from its beginning. For three months before responding to calls on their own, CRU workers co-responded to calls with officers to build trust with officers and the community, and also to make themselves known in the areas they were going to serve.104
MAP, the multiyear prototype for the 24/7 program, was created after a stakeholder assessment and community engagement session and operated without city funding.105 In 2015, the 24/7 program was created after input from 25 community stakeholders at two separate sessions, and 17 agencies were involved in the development of the new plan.106Edmonton also does 90-day pilots to test potential changes to the program.107In 2015, the Edmonton City Council asked REACH about options for expansion and REACH noted that “it would not be a simple linear expansion with identical resource requirements or results for” each neighborhood.108
CAHOOTS “costs on average $71 an hour.”109REACH estimates that for “every
$1 invested in the 24/7 Crisis Diversion initiative, there is a social return on investment (SROI) of $1.91 in the form of savings in health care, policing, and legal costs.110Costs were reduced for ambulance transport, police, and emergency room services.111For many clients that these programs serve, the cost of an emergency room visit would otherwise fall on the taxpayer, a cost estimated at $1,010 per visit in 2018 by the Federal Medical Expenditure Panel Survey.112CRU’s $497,000 annual budget covers supplies and salaries for six behavior health specialists, working in three two-person teams from 7 a.m. to 9 p.m. seven days a week.113
Travis County (the county encompassing Austin) contributed $1 million to expand MCOT into EMCOT.114CRU, with its first annual budget of $497,000, estimated $110,100 in startup costs.115The original plan for MAP, the predecessor to 24/7, estimated start-up costs of $892,000 for an annual budget of $2,037,530.116
Wages for the programs are: CAHOOTS:
$18 an hour,117EMCOT: $150,000 annually for clinicians,118CRU: $50,992.00 to
$63,745.50 annually,119and 24/7: $20.63 to 24.27 an hour (Canadian dollars).120
Appendix A is a table with each city’s police department and crisis response program budgets, response information for both, as well as estimated savings of the crisis response program.
All of the police departments viewed their crisis-response programs positively; they generally recognize that the workers are better suited to handle certain call types and that when they do it frees up police to work on other matters.121However, there is generally a period after programs first begin when officers are hesitant to fully defer to it, but do so after seeing the program operate effectively.122In Austin, where the program doesn’t operate 24/7, the EMCOT program manager says law enforcement frequently asks when they will have overnight
staffing.123EMCOT provides training to the police department in an attempt to form stronger bonds between crisis workers and officers.124
Lack of Adequate Funding
Every program (other than Olympia’s Crisis Response Unit, which is in its second year of operation) outgrew the program’s demand at least once.125Cities tend to expand programs when they are presented with data about cost savings and hear from community members about the effectiveness of the programs.
Considerations for an Albany Crisis-Response Program
Choosing a Host Organization/Agency
Except for Olympia, each crisis-response program built upon or expanded a preexisting initiative. The programs were administered by nonprofit organizations, either directly or through a subcontract.
Subcontracting may show that the program is “collaborative but separate” from law enforcement, as well as allow for funding streams in addition to those available to municipalities or counties. However, public officials will have less control over the program. When looking for the right organization to administer the program, local governments should look for organizations with (i) a longstanding presence in the community, (ii) a history of delivering similar services, (iii) an ability to track performance and measure success, and
the ability to store client data safely and follow other statutes and regulations.
CAHOOTS is administered by White Bird Clinic, a Federally Qualified Health Center.126Albany has one Federally Qualified Health Center, the Whitney M. Young Junior Health Center,127which currently operates “Whitney on Wheels,” a mobile van unit that provides preventative care such as physicals, chronic-disease management, health and nutritional education, lab tests and screenings, and vaccinations at various partner locations.128 However, for some of the locations, the client must be a member of the partner organization, and the services are only available to clients who are willing to establish Whitney Young Health as their primary care provider.129
EMCOT is administered as part of Texas’ DSRIP (Medicaid redesign) process by Integral Care, one of the members of an Austin DSRIP network.130In Albany, the Better Health for Northeast New York PPS (Better Health) is the local DSRIP network.131One of Better Health’s eleven initiatives includes funding crisis stabilization services.132Within the Better Health network, there are three mobile crisis response programs: the Albany County Department of Mental Health’s Mobile Crisis Team, the Capital District Psychiatric Center’s Crisis Unit, and the Parsons Center’s Capital Region Child and Adolescent Mobile Team.133
Point of Access, Dispatch, Integration withEmergency Response and Service Providers
Crisis-response workers can be dispatched:
(i) directly by 911, (ii) through a separate number, (iii) directly by first responders, or
(iv) some combination of the above. Based
on the experience of the other programs, having all of the above as points of access would help a program be more successful, with 911 access being the most crucial.134CAHOOTS workers have found it extremely beneficial to share radios with the police.135 It allows officers to call for crisis-response workers once they’ve assessed a situation, and workers can ‘preempt’ police response when appropriate.136
All the programs can refer or transport clients to other social-service providers, some after not being originally able to do so.137This allows for direct access to long- term and appropriate care. All programs have a process in place for frequent users of their program in order to provide them more comprehensive services, or to refer them to a different provider for a higher level of care.138
o what call types the crisis response program may respond to,
the frequency of those call types,
locations where calls most often originate from (by police beat, census tract, etc.), and
what times of day those calls are most common.
2. Decide on Program Operations, Structure, and Funding
Solicit feedback from community and stakeholders on design
Decide on metrics to monitor program and measure success
Pursue various funding streams
3. Reallocate Police Funding Towards Program
Here is a detailed Austin City Council hearing about the costs of the then-proposed EMCOT program. Appendix D is a table of police department spending and outcomes for Albany and other municipalities in New York.
4. Issue Request for Proposals (If Subcontracting)
The Request for Proposals should incorporate the takeaways from the first two steps. A copy of Olympia’s Request for Proposals can be found here, which includes requirements for workers. Job descriptions for the programs can be found at the following links: CAHOOTS Medics, and Crisis Intervention Workers; CRU; EMCOT,24/7.
5. Train 911 Call-Takers and First Responders on the Role and Functions of the Crisis- Response Program
All 911 call-takers should be trained to screen for calls that the program will be able to respond to. In Austin, 911 operators are trained to ask whether the caller needs police, fire, or mental health services.146A copy of the “911 Dispatch Call-Taking Manual” for CAHOOTS response can be found in section VIII of the report here.
Police have policies and procedures on how to interact, and in some cases defer to, the crisis response programs in their cities.147
6. Start Pilot, Scale Up, Make Changes
Because other programs have suffered due to lapses in funding, local governments should be ready to authorize mid-year funding increases. This also gives governments additional oversight of nonprofit subcontractors. The program should be collecting enough data on an ongoing basis to analyze, and if necessary, modify its operations.
Currently, local governments have a unique opportunity to reimagine public safety and health, and potentially realize significant savings in doing so. These savings can be reallocated to address root causes of crime and poverty, reducing the needs for services over time. As shown, there is not one way to administer a crisis-response program.148 However, constants among these programs examined can inform local governments in their own efforts to start similar initiatives.
Takeaways from these programs are to (i) include stakeholders in the program design process, (ii) aim to build trust within the police department and community, (iii) have a designated place within the 911 and emergency response processes, (iv) have adequate funding with access to mid-year
increases if necessary, (v) have a capable host organization/agency and be appropriately administratively housed, (vi) properly train employees, 911 call-takers, and other first responders, (vii) use past and current call data to inform operations, and
have the ability to transfer or refer clients to other service providers.
Appendix A: Comparison of Police and Crisis Response Budgets, and Estimated Savings
i. Provides input to the Department of Mental Health and its Director; helps to create the annual local services plan, outlining Albany mental health services.
Albany County Patient Services Coordinating Committee
i. Albany County Department of Mental Health and Department of Social Services coordinate services “for people identified as frequent users of expensive crisis services across different public agencies,”224with “196 individuals served since program inception (2005) with total cost savings of
* Matt DeLaus is in his second year of dual studies for the J.D./M.P.A. program at Albany Law School and SUNY Albany’s Rockefeller College of Public Policy. He is an Albany Law School Government Law Center Fellow and intern, a subeditor for the Albany Government Law Review, and a recipient of both an Albany
Law School President’s Scholarship and The Arthur F. Mathews ’62 Endowed Memorial Scholarship. He cannot fully express his gratitude to Ruchi Patel and Professor Ava Ayers for their support in this work.
414.full.pdf (“Studies generally support that CIT has beneficial officer-level outcomes, such as officer satisfaction and self-perception of a reduction in use of force. CIT also likely leads to prebooking [or post- arrest] diversion from jails to psychiatric facilities. There is little evidence in the peer-reviewed literature, however, that shows CIT’s benefits on objective measures of arrests, officer injury, citizen injury, or use of force.”).
50 “EMS will soon also employ a tool called Telehealth” and “hire two full-time and one part-time clinician who will be able to answer video calls from paramedics or crisis intervention officers.” https://www.kxan.com/news/local/
“I think one of the primary things is the medic and crisis worker combination is what has allowed us to make such significant impacts in our community. By recognizing that behavioral health has a role in physical health, and physical health has a role in behavioral health, you’re able to really kind of treat the whole patient. And there are a lot of folks out there where maybe they don’t have the upbringing or the background to be able to articulate when they’re not feeling well emotionally, but they will reach out to say, “My stomach hurts” – and so [you’re] having that medic become this way for folks to [really] open up about what they’re experiencing emotionally.”
88 See https://police.uoregon.edu/faq#cahoots (“The department works hand-in-hand with CAHOOTS on a regular basis, recognizing that police officers are not the appropriate resource to respond to every situation.”).
cahoots-replace-police-mental-health-trnd/index.html. CRU: The outreach services coordinator for the police department said for the program to build community trust, it had to prove it is “collaborative but separate” from law enforcement. https://www.themarshallproject.org/2020/07/24/crisisresponders. At the same time, the program has to build trust with the police department, with one CRU worker saying “I think they’re hesitant to let us just show up . . . They’re worried about our safety. But the cops are becoming more aware. We’ve been out here for over a year and none of us have been assaulted.” Id. Other workers say that police are deferring more calls to them and trusting them in a wider range of circumstances. See id.
125 CAHOOTS: From 1989 to 2011, the program consisted of one van that did not operate 24/7; the budget has subsequently been increased year over year because of demand for CAHOOTS’ services. See Jack Moran, “Second ‘Intervention’ Van Funded, THE REGISTER GUARD (Mar. 4, 2011) (on file with author). “Based on call volume, demand for CAHOOTS services has increased by over 58% from 2014-2017.” https://www.indybay.org/newsitems/
144 These arrangements are relatively new in the world of social-service financing, and aim to “invest” in programs that address root causes of social issues, thereby reducing long-term spending on social services. See generally https:/ /golab.bsg.ox.ac.uk/the-basics/impact-bonds/; https://youtu.be/nna8Mu-0o1E. The parties consist of (i) a service provider, (ii) one or more third-party financiers, and (iii) a government backer. The parties sign an agreement outlining specific metrics to determine the program’s success, and the service provider uses the financier’s funds. If the program meets the metrics, the government then pays back the financier, with interest. If the program does not meet the metrics, the government does not pay. This arrangement (a) allocates risk for innovative social programs to be placed with third parties, (b) allows government to distribute their payments to the third-party over time for a successful program, instead of the all-at-once funding associated with implementing the program itself, and (c) a properly constructed agreement will produce data for the length of the arrangement, which can then be used when reallocating funding for other programs.
148 The CAHOOTS administrator said that “CAHOOTS isn’t some cookie-cutter [program] that you can just pick up from Eugene and just kind of plunk down in Houston and expect it to work the same, just bigger.” https://www.
In June 2019, New York passed the Driver’s License Access and Privacy Act (Green Light NY), a law that would permit undocumented New Yorkers to apply for a state driver’s license. The law is set to go into effect in December 2019.
In New York, most Department of Motor Vehicles (DMV) offices are not operated by the state agency directly; instead, independently elected county clerks act as agents of the DMV, and are responsible for issuing driver’s licenses in most counties. But many county clerks have expressed their intent to defy the law and refuse to issue licenses to newly eligible immigrants.2 The consequences to the clerks of refusing to administer the law are potentially severe: the New York State Constitution gives the governor the authority to remove an elected county clerk from office,3 though the power has not been invoked since 1932.4
A few weeks after the Green Light NY bill was signed into law, Erie County Clerk Michael Kearns filed a suit in federal court challenging the law as unconstitutional.5 Shortly thereafter, Rensselaer County Clerk Frank Merola filed a similar suit.6 In late August, Monroe County Executive Cheryl Dinolfo filed a third suit.7 Although fourteen states plus Washington, D.C., and Puerto Rico have laws to issue driver’s licenses regardless of immigration status,8 the lawsuits in New York mark the first time local officials have sued a state for issuing driver’s licenses to undocumented immigrants.
The lawsuits claim that the Green Light NY law is preempted by federal law. Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between a state law and a federal law, the federal law overrides the state law. There are two types of preemption: express and implied. Express preemption occurs when a federal law explicitly states that it supersedes state law. Implied preemption occurs when, despite there being no explicit preemption, either:
state law and federal law are in conflict;
state law frustrates federal law; or
the federal law and regulation in an area is so comprehensive as to occupy the field.
The Monroe suit makes an additional claim that the Green Light NY law violates theEqual Protection Clause of the U.S. and New York State Constitutions. The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws. To satisfy the Equal Protection Clause, a government classification must be supported by sufficient justification. Depending on the type of classification, courts will apply one of three types of review: strict scrutiny, intermediate scrutiny, or rational basis review. A law that fails to pass equal protection review is unconstitutional.
Each suit asks the court to rule that the Green Light NY law is unconstitutional and to stop its implementation. The following sections explain the specific claims the counties make.
Claims and Analyses
Summary and Analysis: Neither Congress nor the federal courts has settled on a single definition of “harboring.” In the Second Circuit (the federal jurisdiction that includes New York), there are three elements that must be proved: (1) the noncitizen is unlawfully present in the U.S.; (2) the defendant knew or recklessly disregarded the status of the unlawfully present person; and (3) the defendant took actions that both helped an unlawfully present person to remain in the U.S. and prevented authorities from detecting the person’s presence.9
Most prosecution for harboring arises in the employment context, though mere employment of undocumented workers is not enough. Courts have found employers guilty of harboring when they employ undocumented workers and take affirmative actions that shield the person from detection and make it easier for them to remain in the U.S. For example, the Second Circuit found harboring when an employer induced a worker to falsify work authorization documents and to change her name when the employer was under investigation.0 Litigation also arises in the housing context when, in addition to providing shelter, a person takes actions that help an undocumented person to remain in the U.S. and prevent authorities from detecting them. The Second Circuit found a person liable for harboring when they maintained several houses to provide shelter for large numbers of undocumented people, provided transportation for them to and from work, and helped arrange sham marriages.
The clerks argue that by providing driver’s licenses to people who are in the U.S. without authorization, the Green Light NY Law helps people who are unlawfully present in the U.S. to remain in the U.S. And because the law bars the DMV from disclosing applicants’ records without a judicial warrant, the counties argue that the law shields unlawfully present people from detection.
In its motion to dismiss the Kearns complaint, the State responds that (1) the Green Light NY law forbids the counties from asking an applicant about their immigration status, and because citizens and lawfully present noncitizens are also eligible for standard (not for federal purposes) licenses under the Green Light NY law, the counties cannot assume that all applicants are undocumented; (2) the issuance of a driver’s license is not the kind of conduct prohibited by federal law; even if a driver’s license facilitates a noncitizen’s continued unlawful presence in the U.S., it is not done specifically to prevent immigration authorities from detecting the noncitizen; (3) the Green Light NY law protects certain documents from disclosure, but the federal law is meant to address harboring of people not documents; and (4) there is no credible threat of prosecution as no official in any other state that issues driver’s licenses to undocumented residents has ever been prosecuted under the harboring statute.
Summary and Analysis: Federal law makes it unlawful to knowingly employ unauthorized workers. To be authorized to work, a person must have a valid social security number or other work authorization issued by the federal government. Many types of immigrants are eligible for work authorization, including asylees and refugees, beneficiaries of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), some student-visa holders, and many others. Undocumented people are not generally eligible for work authorization. Employers who violate the law may be subject to fines and criminal prosecution.
The U.S. Supreme Court has previously struck down government action that frustrates this law. In Hoffman Plastics, the Supreme Court reversed an administrative award of back pay for unauthorized workers who had been unlawfully fired for union activity.3 Back pay—wages that workers would have earned had they not been unlawfully terminated— is a remedy typically available to people with work authorization. But the Court reasoned that without work authorization the workers were “unavailable” to work, and an award of back pay would be inconsistent with the federal laws that aim to curb the employment of unauthorized workers.4 The Court relied on its analysis in a prior case that held that unauthorized workers were not eligible to be reinstated after they were wrongfully terminated. 5 In Arizona v. U.S. the U.S. Supreme Court struck down a state law that aimed to impose criminal sanctions on unauthorized workers for seeking employment—a consequence not imposed by federal law. Reasoning that the federal law intentionally avoided imposing criminal penalties on unauthorized workers, choosing instead to sanction employers, the Court held that the “state law to the contrary is an obstacle to the regulatory system Congress chose.” 6
The counties claim that the Green Light NY law intentionally interferes with federal efforts to combat the employment of unauthorized workers. In justifying the proposed law extending driving privileges to undocumented New Yorkers, bill sponsors in the Senate and Assembly noted that undocumented people need driver’s licenses in order to get to and from work.7 But because undocumented people are not generally eligible for work authorization, the counties say the New York law encourages the unlawful employment of unauthorized workers and frustrates federal law.
In its motion to dismiss the Kearns complaint, the State responds that the federal law deliberately regulates the conduct of employers rather than the workers themselves or others who facilitate the unlawful employment. Because the Green Light NY law does not regulate any employer conduct, permit employers to hire workers, or confer the license holders with work authorization, the law does not conflict with federal prohibitions on employment of unauthorized workers.
Summary and Analysis: In 1996, Congress passed two laws under which state and local governments may not prohibit communication with the federal government about the immigration status of any person, 8 U.S.C. § 1644 and 8 U.S.C. § 1373. Shortly after the laws were enacted, the City of New York challenged the validity of the laws under the anticommandeering principles of the Tenth Amendment, which prohibit the federal government from compelling states to adopt or enforce federal laws. The city was defending its long-standing executive order that prohibited New York City officials from sharing immigration-status information with federal immigration authorities. The Second Circuit ruled against the city, upholding the federal laws as constitutional. The court reasoned that while the federal government could not compel state and local governments take certain actions to administer federal programs, it was constitutional for the federal government to prohibit states from taking certain actions that would frustrate federal programs.8 In response, the city changed its order; rather than prohibit the sharing of immigration-status information, the new order (which is still in effect) prohibits the gathering of immigration-related information except in limited circumstances.9
But a recent U.S. Supreme Court case has done away with the distinction drawn by the Second Circuit. In Murphy v. NCAA, the Supreme Court held unconstitutional a federal statute that prohibited states from authorizing sports gambling.20 The Supreme Court reasoned that the distinction between an attempt to compel a state to act or to prohibit a state from acting is an empty one; any attempt to dictate what state legislatures may and may not do is a violation of the anticommandeering principles of the Tenth Amendment.2 In light of this ruling, one federal court in New York has ruled that 8 U.S.C. § 1373 is unconstitutional.22 The Second Circuit has not ruled on provisions that prohibit the gathering of immigration-related information, nor has it considered whether 8 U.S.C. § 1644 and 8 U.S.C. § 1373 will survive in light of Murphy.
The Green Light NY law prohibits the disclosure of any records or information maintained by the state or local agent to immigration enforcement authorities absent a court order or judicial warrant. The county claims that this information-sharing prohibition conflicts with the federal laws.
In its motion to dismiss the Kearns complaint,23 the State responds that (1) because federal law grants states the choice as to whether to report otherwise protected personal information to other state and federal agencies, the Green Light NY law is an exercise of the State’s discretion to decide when such permissive disclosures are appropriate; (2) federal law does not create any affirmative obligations to disclose immigration status information; and (3) because the Green Light NY law prohibits state and local agents from inquiring about the immigration status of an applicant for a non-federal-use driver’s license, government agents will not have any relevant immigration-status information to communicate at all.
Summary and Analysis: Federal law makes it a crime for a noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”24 A noncitizen who votes in a federal election can be fined, imprisoned, or removed from the United States—even if they did not know they were ineligible to vote.25 The county argues that because the Green Light NY law permits people who are ineligible to vote in a federal election to obtain a driver’s license, and because a driver’s license is sufficient documentation to register to vote in New York, that the state law is preempted by the federal law.
The State has yet to respond to this argument, but may reply that (1) the issuance of a driver’s license is fairly attenuated to the act of voting; (2) all states routinely issue driver’s licenses to people who are ineligible to vote in federal elections, including people under the age of 18, lawful permanent residents (“Green Card” holders) and other noncitizens, and some people who have been convicted of a felony; and (3) the federal statute at issue criminalizes the actions of a noncitizen voter, not the actions of a state or local government that erroneously accepted a voter registration or permitted an ineligible voter to cast a vote in a federal election.
Summary and Analysis: A state or local law is preempted when the federal law and regulation in an area is so comprehensive as to occupy the field. Courts have found field preemption in areas where there is a clear and dominant interest in national uniformity, such as nuclear safety regulation,26 or where Congress has enacted a comprehensive statutory framework that demonstrates its intent to occupy a field, such as with “alien registration.”27 This means that even complementary state or local laws are preempted. For example, the U.S. Supreme Court struck down an Arizona statute that made it a crime under state law for an immigrant to fail to carry their “alien registration document” as required by federal law. Although the state statute mirrored the federal statute in that it imposed a penalty for failing to carry the document, the Court reasoned that “[w]here Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.”28 But not all state or local laws that have to do with immigrants are field-preempted. The U.S. Supreme Court has upheld state laws that affect immigrants but do not interfere with the comprehensive scheme laid out by federal law. For example, the Court found that a state law that revoked an employer’s business license for hiring unauthorized workers was not preempted by federal law.29
The counties argue that the federal government has exclusive authority over the field of immigration law, and that the Green Light NY law is therefore preempted.
In its motion to dismiss the Kearns complaint, the State responds that (1) only the federal government may bring a claim based on the supremacy clause in the immigration context; (2) the issuance of driver’s licenses is not within the field of immigration regulation exclusively governed by federal law; (3) the State has broad authority to govern matters of public safety, including issuing driver’s licenses, even if those laws have some effect on immigration; and (4) federal law recognizes that states are permitted to issue driver’s licenses without regard to immigration status.
Summary and Analysis: The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws. The Equal Protection Clause is applicable when a government action unjustifiably burdens or benefits one group of people but not other similarly situated people. That is not to say that the government may not make distinctions between classes of people; a government classification is lawful so long as it is supported by sufficient justification. Depending on the type of classification, courts will apply one of three types of review: strict scrutiny, intermediate scrutiny, or rational basis review.
The most stringent type of review, strict scrutiny, will apply when the law in question relates to a fundamental right or a suspect classification. Fundamental rights include the right to vote, the right to move freely between the states, and the right to marry. Suspect classifications include race, national origin, religion, and alienage. A law that limits a fundamental right or that involves a suspect classification must pass strict scrutiny; the law must further a “compelling governmental interest,” and must be narrowly tailored to achieve that interest. When courts apply strict scrutiny, they almost always strike down the government action being challenged. A court will use intermediate scrutiny to evaluate a law that discriminates by sex or gender. To pass intermediate scrutiny, the law must be substantially related to an important governmental interest. For most all other classifications, courts will use the lesser rational basis standard of review, under which the state need only show that the classification bears a rational connection to a legitimate state interest. Laws that are subject to rational basis review almost always survive challenge.
The county argues that the Green Light NY law violates the Equal Protection Clause because it treats undocumented immigrants better than it treats U.S. citizens and lawful residents. Under the Green Light NY law, people with social security numbers are required to provide their social security number to apply for a driver’s license. All U.S. citizens have social security numbers, and so do some, but not all, noncitizens. Noncitizens without social security numbers may submit an affidavit stating that they have not been issued a social security number, and must also provide a valid foreign passport, consular identification document, or foreign driver’s license to be eligible for a standard (not for federal purposes) driver’s license.
The county argues that the Green Light NY law “requires less intrusive and less reliable proof of identity from” undocumented immigrants who don’t have social security numbers than from citizens and immigrants with social security numbers. Because New York shares driver’s license data with state and federal agencies, the county claims that those who have submitted their social security numbers will have their identities shared while those without social security numbers will have their identities shielded.
The State has yet to reply to this argument, but may offer some variation on three replies. First, the State may say that equal protection is irrelevant here because the classes (people with and without social security numbers) are not similarly situated. Under federal law, the state cannot issue the same kinds of driver’s licenses to people who have social security numbers and people who do not. People with different kinds of licenses are not similarly situated. Second, the State may argue that equal protection is irrelevant because there is no differential treatment; all driver’s licenses and associated identifying information are a part of the same database that is shared with state and federal agencies. Finally, the State may say that even if equal protection does apply, the state satisfies the low burden of rational basis review; the heightened scrutiny required for alienage discrimination does not apply where a party alleges preferential treatment for immigrants.
The Government Law Center publishes explainers—short policy papers—designed to help policymakers and others understand the complex laws that apply to state and local governments’ choices about immigration policy. Each explainer briefly reviews the law in a specific area, and provides links to further resources. For more information on driver’s licenses for undocumented immigrants, and other issues related to state and local governments and immigration law, see the Government Law Center’s explainer series, available at: albanylaw.edu/glc/immigration.
* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.
 In 51 of the state’s 62 counties, the county clerk serves as an agent of the Commissioner of Motor Vehicles and is responsible for operating the Department of Motor Vehicles office and issuing driver’s licenses. See N.Y.S. Vehicle and Traffic Law § 205. Excepted are the clerks of the counties of Rockland, Albany, Westchester, Suffolk, Nassau, Onondaga, Bronx, Kings, Queens, Richmond, and New York.
3 N.Y. Const. art. XIII, § 13 states, in part: “The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense.”
9 SeeU.S. v. Kim, 193 F.3d 567 (2d Cir. 1999) (holding that harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the U.S. illegally and to prevent government authorities from detecting [the immigrant’s] unlawful presence”) citingU.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975)).
 SeeU.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975).
2 The Kearns complaint refers to the Immigration Control and Reform Act of 1986, the parts of which referring to the employment of unauthorized workers are codified in 8 U.S.C. § 1324a.
3 See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
5 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).
6 See Arizona v. United States, 567 U.S. 387, 389 (2012).
22 See New York v. U.S. Dep’t of Justice, 343 F. Supp. 3d 213, 244 (S.D.N.Y. 2019).
23 Although the Kearns complaint does not reference these statutes, the State’s motion to dismiss addresses the issue. See Motion to dismiss at n.9, Kearns v. Cuomo, et al. No. 19 cv 902 (W.D.N.Y. filed Jul. 8, 2019).