Sanctuary in Places of Worship: How to Avoid Criminal Risks for Providing Sanctuary to Undocumented People
Sanctuary cities, and Trump’s threat to punish them for being so, has created a maelstrom in the resistance against oppressive White House polices and Executive Orders.
For centuries, churches have provided sanctuary to those who need protection from those in power. In these dark times, sticking together makes sense, and it is time for movement lawyers to mobilize with communities of faith that are committed to provide resources and sanctuary in the physical church to those who face deportation.
But houses of worship and religious communities face civil and criminal risks for playing the Good Samaritan. “In this climate, I was hired by a church member who asked me to find out: ‘What’s the liability if we provide sanctuary at our church,’” explained Georgia-based attorney Leslie Spornberger Jones. “The way this person looked at me, it was obvious this person thought it a simple question.”
But, says Jones, “A million alarms rang in my head: What type of liability? Civil? Criminal? Ecclesiastical? And, ’sanctuary’ – what does that mean? Housing people? Giving rides to the grocery store? Providing a place for group meetings?”
And that’s not the end of the inquiry, either, said Jones, adding: “Then, there’s the government: ecclesiastical, federal, state, local. To what laws, regulations and rules might the church be subject?”
It was clear, added, Jones, that this was not a quick legal research project. As a starting point, Jones asked her client: “What do you mean by ‘sanctuary,” adding that she then asked to see the church’s founding documents, its administrative literature, and a copy of the general liability policy.
Many undocumented immigrants were invisible to the wider community before Trump’s presidency but, as the street demonstrations show, thousands now want to stand in solidarity with this often-marginalized segment of our communities.
“Right out of nowhere,” says Attorney Jones, “people who never thought about immigration policy or the millions of undocumented people in the U.S. began to worry and wonder about this vulnerable population.”
Before Trump’s presidency, “many people of faith who were never really concerned about our undocumented brothers and sisters now want to help the ‘strangers’ in our midst; reach out to the ‘foreigners’ in our land; and provide comfort to refugees, asylees that have sought better lives in the U.S.,” said Jones.
This desire to help is consistent with the beliefs of all major faiths that compel believers to provide hospitality for travelers and to care for people from other lands, explains Jones. “They also generally teach that the faithful person is to stand up for what is right. In the view of the believer, no emperor or president’s proclamation is a match for the word of the Almighty,” Jones said.
Given her client’s belief background, Jones said she wondered: “If a place of worship provides sanctuary, what type of legal trouble could occur?”
Many protestant churches organize and self-govern, but hold the property of the denomination in trust. If a local church violates the law and incurs civil liability, the denomination theoretically could then sue the local church for damages. This is where reviewing the church’s insurance policy and any legal documents connecting the local church to the denomination is crucial, Jones said.
In representing the local church client, Jones said, one also has to be sensitive to the tension between the client’s religious mandate in which God is to come first versus the recognition that living in the real world requires worldly leaders to be respected.
“Civil disobedience is only appropriate if all legal remedies have been exhausted. In this context, skirting the immigration laws could be risky business for the believer,“ said Jones.
“In addition to general doctrines, many faiths have their own judiciary processes for people who do not comply with doctrine,” added Jones. “Searching the judicial decisions of my client’s faith led me to decisions of the church’s judiciary that explained how the denomination’s rule on civil disobedience was born during the Vietnam War and that provided guidance on what ‘exhausting all legal remedies’ might mean.”
Next, what of federal, state, and local laws, Attorney Jones wondered, adding, “Federal immigration laws prohibit harboring and transporting undocumented persons, but what, truly, is ‘harboring’”? (See p. 10.)
Questions for the lawyer and client to consider include:
(1) If a person drives an undocumented person to her immigration attorney for a consultation, is that criminal transporting?
(2) What activities could bring the eye of the federal government to the place of worship? Obviously, fact intensive understandings of how the client wants to provide sanctuary are important here. Carrying an undocumented person to meet his attorney is unlikely to be prosecuted as transporting, said Jones.
“But, providing a safe haven for people who have absconded from an immigration detention center is likely to be considered harboring. So, risk and liability abound depending on how the faith community will help others,” said Jones.
Navigating these risks is particularly fraught with distress in light of recent deaths of undocumented people in ICE custody.
Attorney Jones also explained that, if a person engages in harboring or transporting, asset forfeiture could occur. Federal immigration and Federal and state criminal laws generally provide for civil, criminal, and other forfeiture of property — severe liability, particularly where a local church or worship center holds the property of the denomination in trust. This means if a local church engages in conduct that will subject the denomination’s property to forfeiture, a lawsuit between the two could occur, said Jones.
And where and how is the First Amendment’s prohibition against Government interference with religion implicated in a sanctuary case where believers are following their spiritual mandate to help those in need?
In the current climate, it is best to be aware of the possible state laws under which church members could be prosecuted.
“Even if these laws are ultimately found unconstitutional – facially or as applied, a local church could be the first ‘person’ to challenge the law — never a fun spot to be in,” said Jones.
Local laws, too, may come into play for religious organizations that want to provide sanctuary. Zoning, obstruction of local law enforcement agents, and providing false information are common charges that might stem from sanctuary activity.
Finally, what is the civil liability risk for providing sanctuary? How would an insurer view the religious organization’s decisions to provide living space, transport people in a van, or receive medical care at the place of worship? Depending on the activity, liability may be high.
“Answering my client’s question required a lot of research into multiple legal sources, a consideration of all the ways the client wanted to help undocumented persons, and thinking creatively about where liability can be avoided. Having this information is critical for a religious organization that wants to provide sanctuary,” said Attorney Jones.