For some California sheriffs, it’s not politics stopping them from fully helping ICE: It’s the legal risk
An Oregon judge found that police violated a woman’s Fourth Amendment rights by keeping her in jail at ICE’s request. (March 31, 2017) (Sign up for our free video newsletter here http://bit.ly/2n6VKPR)
Adam Christianson makes no bones about helping federal immigration agents nab people for deportation.
The three-term sheriff of Stanislaus County, east of the Bay Area, gives agents from Immigration and Customs Enforcement unfettered access to his jails, where they interview inmates and scroll through computer databases. The information allows the agents to find and take custody of people they suspect of living in the country illegally before they are released from jail.
There is a line, however, Christianson won’t cross.
ICE officials routinely ask local jailers and state prison wardens to keep inmates behind bars for up to two days longer than they would otherwise be locked up. Christianson refuses to honor the requests — detainers in ICE parlance.
He is hardly alone. None of the sheriffs in California’s 58 counties is willing to hold inmates past their release dates for ICE, The Times has found.
Last week, the Department of Homeland Security started issuing a weekly report that aims to identify and publicly shame law enforcement agencies that released people from custody despite an ICE detainer request. And U.S. Atty. Gen. Jeff Sessions went a step further this week, promising to withhold federal funding from law enforcement departments that don’t get in line with ICE.
But several sheriffs said their defiance is not rooted in ethical or political opposition but legal concerns. Federal court rulings, including one in Oregon where a judge found that police violated a woman’s constitutional rights by keeping her in jail at ICE’s request, have left California’s law enforcement officials worrying that they could expose themselves to legal troubles for doing the same.
“Sheriffs aren’t going to come close to a 4th Amendment violation that is going to expose them to liability,” Christianson said.
The same is true throughout the U.S., where a majority of sheriff’s departments have stopped honoring ICE hold requests, according to the National Sheriffs’ Assn.
The increasing friction over detainers is just one story line in a larger battle over the Trump administration’s deportation plans, which, on paper at least, dramatically expand the number and type of immigrants targeted for deportation. While the focus under President Obama was on deporting serious offenders, new immigration guidelines take aim at anyone in the country illegally who is convicted, arrested or simply suspected of any crime.
Sheriffs aren’t going to come close to a Fourth Amendment violation that is going to expose them to liability
Stanislaus County Sheriff Adam Christianson
For the most part, California’s sheriffs are law-and-order types who do not always agree with calls from some local politicians and activists to fully resist ICE or declare immigrant sanctuaries. But they also are flummoxed that the Trump administration is coming down so hard on them — and in such public fashion — while not addressing their concerns about the legality of detainers.
“No one cooperates with ICE as much as we do,” said Sacramento Sheriff Scott Jones, who, like Christianson, allows ICE agents to work inside his jails and shares inmate information with them.
Jones expressed confusion over why his department was included in ICE’s first “Declined Detainer Outcome Report” for allegedly releasing two inmates for whom ICE had issued detainers.
“I don’t even know what that means, since we don’t honor any detainers,” Jones said.
The state’s most serious criminals — such as murderers, rapists and violent gang members — serve their sentences in state prisons, which do hold inmates for immigration agents for up to 48 hours after their release, according to the Department of Corrections and Rehabilitation. A department spokeswoman said prison officials believe the legal concerns over detainers are limited to local lockups.
The county jails, meanwhile, are largely filled with lower-level felony offenders, those convicted of misdemeanors and inmates awaiting trial, who either serve relatively short sentences or might be eligible for release on bail. In such cases, immigration agents might receive short notice of an impending release, if they receive any warning at all.
When people are arrested and booked into local custody — a process that often occurs in a jail facility operated by one of the state’s county sheriffs — their fingerprints and other identifying information are typically transmitted electronically to federal databases. ICE checks the arrest data against internal databases of people believed to be in the country illegally.
ICE lacks the manpower to take custody the moment each inmate is released. Holding inmates for an additional two days gives agents the ability to schedule regular visits to jails in their territory to take custody of inmates to be released.
The large territory ICE agents cover in California exacerbates the challenges. The Los Angeles field office, for example, is responsible for an area that includes seven counties that span more than 35,000 square miles. David Marin, the head of the L.A. office’s Enforcement and Removal Operations, declined to say how many agents work in the area, but said agents frequently are forced to choose between going to one jail or another.
Passed in 2013, the state’s Trust Act limited cooperation with detainers, but still allowed law enforcement to honor the requests for a long list of cases.
Then, in 2014, the ruling by a federal magistrate judge in Oregon upended the use of detainers. The case involved a woman who sued Clackamas County after she was arrested on suspicion of violating a domestic violence restraining order and ICE issued a detainer while agents investigated whether she was in the country illegally. County jailers informed her she would not be released even though a court said she could be let out on bail.
The magistrate found the woman’s extended detention violated the Fourth Amendment’s protections against unreasonable searches and seizures. The detainers, the magistrate ruled, were mere requests, not mandatory orders.
Jones, the Sacramento sheriff, said sheriffs in California pleaded unsuccessfully with the Obama administration to challenge the ruling. Civil liberty groups sent letters to the state’s sheriffs threatening lawsuits if they continued to honor detainers, Jones said.
The use of inmate hold requests from ICE peaked in August 2011, when nearly 28,000 were issued nationwide, according to data from Syracuse University’s Transactional Records Access Clearinghouse. Since then, the numbers have declined steadily and were down to about 6,000 in December 2015, the last month for which figures were available.
In the years since the Oregon ruling, ICE officials have continued to insist that detainers “serve as a legally authorized request, upon which a law enforcement agency may rely,” according to an ICE spokeswoman.
Such assurances have carried no weight among many sheriffs. Kern County Sheriff Donny Youngblood, president of the California State Sheriffs’ Assn., as well as Jones, Chriastianson, several other sheriffs and ICE officials said they were unaware of any sheriff in California today who honors ICE’s detainers.
Jones and others said they have traveled to Washington, D.C., repeatedly to press federal officials on the legality of detainers. Those efforts have continued since Trump took office.
At a meeting with the president in February, senior officials from the National Sheriffs’ Assn. raised concerns about detainers, said Jonathan Thompson, the group’s executive director.
San Bernardino Sheriff John McMahon did the same in February when he and other California sheriffs met with Sessions in Washington the day before he was confirmed as U.S. attorney general.
The association, Thompson said, has been clear that the more than 3,000 sheriffs around the country would, for the most part, eagerly comply with ICE’s detainers if they had the clear legal authority to do so.
Since then, the group has been working closely with ICE “to identify a path forward that is constitutional, that is administratively viable and [that] assures we’re holding the right person for the right reason for the right amount of time,” he said.
“We want to make sure that sheriffs...aren’t being put in a position where they’re being asked to violate the constitution.”
Some sheriffs officials said they want Sessions to give them legal cover by declaring the detainers constitutional. Others said they are looking to the attorney general to take the issue to court in search of an unambiguous legal determination.
In comments this week, Sessions indicated he believes detainers are legal. Lashing out at local governments that have implemented “policies designed to frustrate the enforcement of our immigration laws,” the attorney general highlighted detainers specifically and said, “such policies cannot continue.”
Another solution, many sheriffs said, would be to have a federal judge review each detainer request — although some acknowledged that was not realistic given the number of requests ICE issues.
ICE officials released a new detainer form last week that, in part, was an attempt to make the process more legally sound. However, it did nothing to assuage sheriffs’ concerns.
In the meantime, many sheriffs have found other ways to help ICE, while ignoring detainer requests. Several departments — including those in Orange, San Bernardino, Riverside, Santa Barbara and Alameda — often notify immigration agents when a person flagged by ICE is set to be released from jail, but ICE isn’t always around when an inmate goes free.
Like Christianson in Stanislaus, Youngblood, who has been vocal in his opposition to sanctuary policies that aim to thwart deportation efforts, goes out of his way to assist immigration agents in Kern County. They have access to the department’s records, know when inmates are to be released, and take custody of people when that happens. He’s even given agents office space in the jails.
“I made the decision that it was probably economically not a good decision” to honor detainers, Youngblood said, referring to the potential for costly verdicts in lawsuits. The way he sees it, given everything the department does to make sure released inmates are available to ICE, “there is no purpose in them issuing detainers to us.”
Regardless, Kern County found itself listed this week on ICE’s report of agencies that restrict cooperation.
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