Fair And Impartial Policing: Is It Happening In Vermont?

Aug 29, 2019

Migrant farmworkers and their advocates say correspondence between the state and federal government is raising new questions about whether Vermont’s largest police force is complying with a policy that’s supposed to limit the state’s role in federal immigration enforcement.

In an email to the U.S. Department of Justice last August, then-Commissioner of Public Safety Thomas Anderson told a federal official that Vermont State Police officers “have never been instructed or trained that they may not respond to ICE inquiries about an alien in VSP custody, including custody status, release date, or personal information.”

Excerpt from letter dated Aug. 30, 2018.
Credit Public Records Request / Vermont Department of Safety

Read the full 86 pages of correspondence between Anderson and the DOJ, acquired through a public records request by VPR. The sentence above appears on pages 70-71.

Immigrant advocates, however, say the fair and impartial policing policy that governs state police explicitly prohibits officers from sharing personal information about undocumented immigrants with federal immigration authorities, when it’s not justified on the basis of public safety or other law enforcement needs.

Lia Ernst, a staff attorney at the American Civil Liberties Union of Vermont, says those restrictions are cornerstone protections for immigrants in the fair and impartial policing document.

“Although it’s deeply troubling to see this line from … the former commissioner, it’s also true that it’s in keeping with what advocates and immigrants have long believed: that the fair and impartial policing policy does not do enough to protect them,” Ernst said.

Law enforcement officials say the line in question from Anderson misstates what’s actually happening at Vermont State Police. Police officers, they say, have in fact been trained and instructed not to respond to federal inquiries about immigrants in their custody.

“There’s a disconnect between that sentence [from Anderson] and the message to the field, the way they are trained on the policy, and the policy itself,” said Maj. Ingrid Jonas with the Vermont State Police.

Jonas and other law enforcement officials say the line from Anderson is being taken out context in ways that will instill unnecessary fear of a police agency that’s sought to mostly sever its role in federal immigration enforcement.

Maj. Ingrid Jonas points to the place in the Vermont State Police's fair and impartial policing policy that outlines what questions police officers can and can't ask about someone's immigration status.
Credit Elodie Reed / VPR

“To pull out one sentence I don’t feel shows the commitment of the Vermont State Police to communities of people in Vermont who may be here on a questionable status,” Jonas said. “It’s irresponsible to mischaracterize the actions of VSP, because people actually become afraid of us when there isn’t a reason to be afraid of us, and that’s what my concern is.”

Anderson's Email

Two years ago, lawmakers passed legislation that required every police agency in Vermont to adopt a so-called fair and impartial policing policy.

It was an important win for Vermont’s migrant workers, because the policy prohibited state and local police from sharing personal information about undocumented immigrants with federal immigration authorities when those immigrants posed no safety threat to officers or the public, and weren’t involved in "law enforcement needs unrelated to civil immigration enforcement."

The prohibition on information-sharing covers the type of information — custody status, release date, or home address, for instance — that federal authorities would need to locate and arrest someone they suspected of being in the country illegally.

Migrant Justice held a rally in Newport on June 29th following the arrest and detention of three dairy farm workers outside a Walmart there.
Credit Peter Hirschfeld / VPR

But as police agencies across Vermont worked to institute the new policy, state police were engaged in a behind-the-scenes dispute with the Department of Justice over federal protocol.

According to the Department of Justice, a provision in Vermont State Police’s fair and impartial policing policy, along with a training bulleting at the agency, violated a federal law known as U.S. Codes 1373.

These violated the code, federal officials said, because they prohibited state police from sharing personal information about undocumented immigrants with Immigration and Customs Enforcement or Border Patrol.

Ernst, with the ACLU of Vermont, said there’s good reason state police imposed those types of restrictions on information-sharing.

“This [Trump] administration — but frankly, it’s not unique to this administration — has been waging a war on immigrants,” Ernst said. “And Vermont law enforcement should not be a cog in that machine of deportation.”

In February, the prolonged legal squabble between state police and the DOJ came to an end. The DOJ ruled that Vermont was compliant with federal law. And it released more than $2 million in federal funds that it had been withholding from Vermont due to the alleged non-compliance.

But Jon Adler, a director at the DOJ, said his department was releasing the funds based on an assurance it had received from then-Commissioner of Public Safety Thomas Anderson.

“I am pleased to report that we accept your representations that the Vermont Department of Public Safety ‘fully complies with the requirements of federal law,’” Adler wrote. “We similarly accept the representations in your August, 29, 2018 letter that: ‘… police officers have never been instructed or trained that they may not respond to ICE inquiries about an alien in Vermont State Police custody, including requests for custody status, release date, or other personal information.’”

Correspondences between Anderson and the DOJ date back to 2017. And throughout those communications, Anderson vigorously defends the legality of the fair and impartial policing provision that prohibits officers from sharing with federal authorities “personal information” about undocumented immigrants.

The line in which he says officers have never been trained or instructed that they “may not respond to ICE inquiries” about an immigrant’s personal information is the lone departure from his otherwise consistent defense of VSP policy.

Will Lambek of Migrant Justice, a farmworker advocacy organization.
Credit John Dillon / VPR File

But Will Lambek, with a farmworker advocacy organization called Migrant Justice, said Anderson’s statement to the DOJ is nonetheless unsettling.

“What Commissioner Anderson is assuring the Trump administration is that there are no restrictions whatsoever placed on the sharing of this information,” Lambek said. “We should all be very concerned when our public officials behind closed doors make assurances that they’re going to be violating their own department’s policy and state law.”

State Police Respond

Anderson, who left state government at the end of July, would not agree to an interview for this story. In an email, he said the single line in question was part of a year-and-a-half-long correspondence with the DOJ in which he vigorously defended the legality of Vermont’s fair and impartial policing policy.

Anderson said the line “was directed at a specific claim by DOJ that a single training bulletin prohibited VSP members from responding to any federal inquires and was directed at rebutting that erroneous claim.”

Maj. Ingrid Jonas, who oversees the fair and impartial policing policy at the Vermont State Police, did sit down with Vermont Public Radio. She said she can’t say why Anderson made the statement.

Maj. Ingrid Jonas oversees the fair and impartial policing policy at the Vermont State Police.
Credit Elodie Reed / VPR

“I’m a little uncomfortable commenting on Commissioner Anderson’s letter first of all,” Jonas said. “That is his letter and he’s not our commissioner anymore.”

Jonas, however, said that line from Anderson is simply not accurate. State police officers, Jonas said, have been trained that they may not share personal information about undocumented immigrants with federal agencies like ICE and Border Patrol. Specifically, they’re prohibited from sharing that information when it isn’t justified on the basis of “public safety,” “officer safety,” or law enforcement needs unrelated to civil immigration enforcement.

“There’s nothing that would allow us to proactively provide what’s basically private information about people in Vermont to immigration authorities,” Jonas said.

Asked whether state police officers have been instructed or trained that they may not share that information, Jonas said, “Yes, they have.”

And Jonas and other law enforcement officials say the totality of the correspondence between Anderson and the DOJ should resolve any concerns about whether state police are complying with the fair and impartial policing policy.

Context is important according to Julio Thompson, head of the civil rights division at the attorney general’s office. And Thompson said throughout Anderson’s correspondence with the DOJ, the former commissioner defends his department’s policy, and rebuts claims that it violates federal law.

Tom Anderson, former ex-Commissioner of the Vermont Department of Public Safety.
Credit Alden Pellett / Associated Press

Records show that Anderson repeatedly told the DOJ that, based courts’ past interpretations of U.S. Code 1373, his officers were under no obligation to share personal information about immigrants with federal authorities if there was no public safety reason to compel them to do so.

Thompson said there’s one correspondence in particular that alleviates any concern for him. After Anderson said officers have never been trained not to provide personal information about undocumented immigrants to federal authorities, the Department of Justice asked Anderson to memorialize that statement in a bulletin or memorandum. In other words, to make explicit in state police policy that VSP officers are in fact allowed to share personal information about undocumented immigrants with ICE or Border Patrol.

Anderson denied that request. “The requested instructions in your letter follow an interpretation of Section 1373 that federal courts have consistently found legally erroneous,” he said.

“That, ‘No,’ is significant to me,” Thompson said. “If he meant, ‘Yes,’ I think he would’ve said, ‘Yes.’ But he said, ‘No.’”

Jonas, too, cited that correspondence in her defense of the state police.

“I hope you have a copy of that letter, where the commissioner pushed back very clearly, and said, ‘Actually no, we’re not going to change our policy or our training, and in fact your definition or your expansion of 1373 is not okay with us,’” Jonas said.

Excerpt from a letter dated Nov. 20, 2018.
Credit Public Records Request / Vermont Department of Safety

A Question of Trust

Both Anderson and Jonas said they feel like Migrant Justice’s allegations of non-compliance with the fair and impartial policing policy are part of a broader attempt by the organization to undercut public confidence in the state police.

Anderson said in an email that Migrant Justice “runs the risk of eroding the public’s trust in all law enforcement in Vermont.”

“To claim that the VSP or other law enforcement in Vermont are simply running dogs for ‘Trump’s deportation policies’ is false, intentionally inflammatory, and designed to further a political agenda at the expense of the VSP and all law enforcement in Vermont,” Anderson wrote.

Jonas, who worked as an advocate for survivors of gender-based violence prior to joining the Vermont State Police, said her agency’s ability to protect vulnerable communities hinges on those communities’ having trust in police.

“It’s irresponsible to mischaracterize the actions of VSP, because people actually become afraid of us when there isn’t a reason to be afraid of us, and that’s what my concern is,” Jonas said. “I hear the lack of trust and I hear the fear coming from Migrant Justice and from other folks. I’d love to sit at the table and have … conversations with folks … and say, ‘Tell us more about this.’ But that’s not the dynamic. The dynamic is to make an indictment of VSP and say that we’re acting as Trump’s minions.”

Maj. Ingrid Jonas would like to sit down with migrant farmworker advocates.
Credit Elodie Reed / VPR

And Jonas said there’s nothing in the state police track record that supports the notion that its members are unduly aiding federal immigration enforcement activities.

“We don’t have cases or examples where we’ve overstepped what our role is,” Jonas said. “I can tell you that the members in the field are not interested in enforcing immigration or working as the arm of the DOJ or the immigration authorities in Vermont.”

Thompson echoed that sentiment.

“I mean, I talk with folks who work in the immigration sphere all the time, and I don’t hear any reports of collaboration by the state police,” Thompson said. “My perception is that the Vermont State Police is leading the charge for focusing Vermont public safety on Vermont public safety.”

Migrant Justice says there are at least two cases involving state police that raise concerns about compliance with the fair and impartial policing policy. One occurred in 2011, when an undocumented immigrant named Danilo Lopez was arrested by Border Patrol agents after a vehicle in which he was a passenger was pulled over for a routine traffic violation.

Read Seven Days' story about Danilo Lopez's arrest here.

The state police officer who conducted the traffic stop detained Lopez when he couldn’t produce documentation proving he was in the country legally, then called U.S. Border Patrol, and held Lopez in custody until federal agents arrived to arrest him.

The other case occurred in 2018, when Olman Lopez was arrested in Vergennes for allegedly driving under the influence and leaving the scene of an accident. A state police officer later called Immigration and Customs Enforcement, which picked Lopez up at a state police barracks in New Haven and took him to a federal detention center in New Hampshire.

Jonas said the 2011 case, involving Danilo Lopez, was the basis for reforms to the state police fair and impartial policing policy. And she said in the 2018 case involving Olman Lopez, federal authorities learned of Lopez’s immigration status when the arresting trooper called federal authorities to see if Lopez had any outstanding federal warrants for his arrest.

Jonas, however, said this was not a violation of the fair and impartial policing policy: The policy does not prohibit officers to relay a person’s immigration or citizenship status to federal authorities, because doing so would be illegal under federal law. The restrictions on information sharing cover “personal information” about someone in custody: anything other than their immigration or citizenship status.

Migrant Justice maintains that the Olman Lopez case was a violation of the fair and impartial policing policy. 

In any event, Jonas said, the fact that Migrant Justice can count to only two episodes over the past eight years bolsters her case about VSP’s compliance with both the spirit and letter of the fair and impartial policing policy.

“When only two debatable cases, spanning over eight years, are held up as justification for the constant spreading of fear-provoking messaging and alarming criticism of the VSP, this says to me that the state police are doing something right, not something wrong, as Migrant Justice seems to be suggesting,” Jonas said. “VSP handles thousands of calls for service and thousands of motor vehicle stops without complaint every year, and there are only two examples?”

Lambek said it’s possible that other cases of state and federal collaboration have gone unnoticed or unreported, since it’s not always clear what precipitated the arrests of undocumented immigrants in Vermont.

Fear Persists

Will Lambek, at Migrant Justice, said he’s glad to hear that state police are training officers not to share personal information about immigrants with federal authorities.

“The commissioner was making a promise to the Department of Justice that directly contradicts the policy that they have on the books, so we’re happy to hear Maj. Jonas’ commitment that the state police are not sharing personal information with federal immigration authorities,” Lambek said. “But we want to see the actual results, not just words.”

Marita Canedo, who runs a phone helpline at Migrant Justice, said immigrants’ mistrust of police isn’t the result of advocates bad-mouthing law enforcement.

“The mistrust from the community to the state police doesn’t come from Migrant Justice telling the community not to trust them, it comes from the police directly,” Canedo said.

Farmworkers in Addison County recently called the helpline when people surrounded their homes and, according to the migrant workers, yelled insults and fired guns.

“Our immediate response was, like, ‘Call the police,’” Canedo said. “But people are afraid to call the police for many, many reasons. Not only because they might share the information with immigration enforcement, but because when the police come to the place, they don’t [bring an] interpreter, they don’t take the case seriously.”

And Vermont State Police aren’t the only police force advocates are concerned about.

Jose Luis Cordova Herrera stands for a portrait in his farmworker housing.
Credit Elodie Reed / VPR

Jose Luis Cordova Herrera has been working on dairy farms in Vermont for three years, using the money he earns here to support his wife and three children in Mexico.

In August of 2017, Herrera’s brother and nephew were pulled over by a Franklin County sheriff’s deputy for a civil traffic violation. Upon discovering the men spoke only Spanish, the deputy radioed dispatchers and told them to send Border Patrol to the scene.

Border Patrol agents arrested and detained both men.

“It’s really sad, because when we come to this country we come with the hope of being able to sustain our family, to help them get an education, maybe to build a house, and so we come with that dream in mind,” Herrera said. “But if we’re detained or arrested, that dream ends.”