The federal government’s attempt to enlist local law enforcement officials to detain immigrants could put local police departments at risk of legal liabilities, a civil rights group argued in a report released this week. The attention paid to “sanctuary cities” in the report comes as the Trump administration has imposed financial and legal penalties against police departments refusing to hold immigrants after criminal custody release for potential deportation proceedings.
Currently, the federal Immigration and Customs Enforcement (ICE) agency can use a “detainer” to request local law enforcement departments to notify the agency when it is about to release an immigrant from criminal custody. Police departments can maintain custody of the individual for up to 48 hours — weekends not included — for ICE agents to come pick up the person. But the report, “Assumption of Risk: Legal Liabilities for Local Governments that Choose to Enforce Federal Immigration Laws,” argued that police departments violate an individual’s Fourth Amendment rights when they hold immigrants past their criminal custody release date.
The report alluded to the February 2018 case Roy. v. County of Los Angeles in which the Court ruled that the continued detention of an individual beyond their criminal custody constitutes a new arrest. The Court also ruled that a continued hold was justified only when the government has “probable cause” that the person was “involved in criminal activity separate and apart from the justification for their initial arrest.” An ICE officer, report authors argued, would need to indicate on the detainer form if evidence exists to remove the immigrant from the United States.
“Sheriffs should be forewarned, entering into arrangements with ICE to enforce immigration law will not protect them from liability for detaining individuals without probable cause of having committed a crime,” said Shalini Agarwal, managing attorney for the SPLC’s Florida office. “These arrangements create fear, and will have the perverse effect of damaging public safety by scaring away immigrant communities from contacting the police about actual criminal activity.”
Report authors also say that the historical use of detainers — as clarified under the Immigration and Nationality Act — was for local law enforcement agencies to inform the federal government of anticipated release, not an authorization or request to continue an individual’s detention.
“When asking LLEAs [local law enforcement agencies] to undertake new arrests and detention solely on the basis of administrative paperwork, ICE unlawfully transformed a decades-old notification practice,” the report argued.
The report also outlined five separate federal programs or policies from the past decade that appear to “remedy the illegalities of the detainer program,” but do nothing to limit legal liabilities for local law enforcement agencies. Those programs included:
- Secure Communities, which allowed federal agencies to share information between databases and led to racial profiling and prolonged detentions
- Priority Enforcement Program, which ostensibly replaced detainer requests with notification requests
- reinstatement of the Secure Communities program and a detainer policy issued in March 2017 that appeared to assure local law enforcement officials that ICE’s detainer practice complied with Fourth Amendment obligations
- a Basic Ordering Agreement that allows jurisdictions to hold immigrants for up to 48 hours and receive a $50 reimbursement from ICE
- the “Gualtieri memo,” written by Sheriff Bob Gualtieri in Florida, who proposed two workarounds of detainer compliance by saying the county could enter into a 287(g) agreement with ICE or contract with ICE by entering into a Inter-Governmental Service Agreement (IGSA). The 287(g) program allows non-federal law enforcement officials to perform immigration enforcement actions to the extent consistent with state and local law.
The report’s release follows a U.S. Department of Justice lawsuit against the state of California that cracks down on local law enforcement officials’ unwillingness to participate in immigration enforcement. Although California state officials appear to be giddy for a showdown with the Trump administration, anecdotal evidence shows that there are serious consequences when police departments participate in immigration enforcement operations. Police chiefs in places like Los Angeles and Houston have expressed a “chilling effect” on crime reporting from immigrants who are afraid they make be rounded up despite being victims or witnesses to crimes. Some immigrants have been too afraid to attend court proceedings, while others have been afraid of contacting police.
The report was written by attorneys with National Immigrant Justice Center, American Immigration Council, American Immigration Lawyers Association, National Immigration Law Center, and Southern Poverty Law Center.