A “detainer” from U.S. Immigration and Customs Enforcement (ICE) is a request for local law enforcement to hold individuals they believe are not lawful citizens in jail or prison for up to 48 hours until the federal agency can take custody and begin deportation proceedings.
Detainers are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.
Some law enforcement entities honor ICE detainer requests, but, recently, some sheriffs across North Carolina have decided to end voluntary cooperation with the federal agency – in fact, they were elected on that platform, often over their more conservative counterparts.
Now, a new proposal from North Carolina lawmakers would force law enforcement across the state to honor ICE detainer requests, or face a hefty fine.
Four GOP legislators — Representatives Destin Hall, Brenden Jones, Jason Saine and Carson Smith – filed House Bill 370  last week, which would punish law enforcement that didn’t honor ICE detainer requests with a civil penalty – $1,000-$1,500 for the first offense and $25,000-$25,500 for each subsequent offense (and every day an agency is out of compliance).
“This is once again a response to retaliate against those sheriffs and voters,” said William Saenz, a spokesperson for El Pueblo in Raleigh. “Their response to those decisions is to separate families and destroy lives through policy.”
Last month, ICE officials acknowledged the agency is ramping up enforcement efforts  because some law enforcement leaders rebuffed their requests for help. And, unless local law enforcement participates in 287g programs — voluntary partnerships with ICE that allow them to conduct federal immigration enforcement — there are no federal dollars to subsidize local resources used to honor ICE-initiated detainer requests for alleged non-citizens.
HB 370 not only expects law enforcement to incur the costs of detaining individuals on behalf of ICE, but it would also leave agencies responsible for litigation costs associated with those detainers, which aren’t always found to be lawful.
Susanna Birdsong, senior policy counsel for the ACLU of North Carolina, said Monday the bill raises significant Fourth Amendment constitutional concerns.
“If someone is eligible for release, and yet you detain them, that constitutes a separate arrest under the law,” she said. “Not only is that constitutionally suspect, but it’s potentially really costly for municipalities or counties.”
There are several court cases clarifying under federal law that ICE detainer requests are discretionary, amount to warrantless arrests and violate the guaranteed protections of the Fourth Amendment, which protects against unreasonable searches and seizures.
That was the case in Miranda-Olivares v. Clackamas County – a federal court case out of Oregon, in which Maria Miranda-Olivares was arrested in 2012 for violation of a restraining order and then held longer than required because of an ICE detainer request. She challenged the county’s ICE detainer policy on various grounds, and the court ultimately ruled in her favor. The court also held she was entitled to damages for the violation of her constitutional rights.
Numerous counties changed their policies to no longer honor ICE detainer requests after the case, and Clackamas County was ultimately responsible for paying Miranda-Olivares – the case settled for $30,100 and the cost of her legal bill.
And there are more cases like Clackamas, which means if state lawmakers pass HB 370, they could be exposing North Carolina law enforcement agencies, cities and counties to federal lawsuits and potentially costly damage awards.
Hall, Jones, Saine and Smith did not respond to requests for comment about the bill. Each of the sheriff’s offices in their counties – Caldwell, Columbus, Lincoln, Robeson and Pender – confirmed Monday that they already honor ICE detainers.
The bill, which has been referred to the House Judiciary committee, has the support of House Speaker Tim Moore (R-Cleveland). The sheriff’s office in his county reported that it does not have a policy on record to honor ICE detainer requests, but referred Policy Watch to the jail to find out whether it honored them in practice. A major there did not return a message requesting comment.
“If the law-abiding citizens of North Carolina are subject to enforcement of state and federal law, then illegal immigrants detained for committing crimes should be too,” Moore said in a news release .
It should be noted though that Moore’s comment appears to be inaccurate given that “law-abiding” U.S. citizens would not be subject to an arrest or detention without probable cause, but those subject to ICE detainers would.
The bill also makes it unlawful for any county to prohibit federal immigration officials from entering or conducting immigration enforcement activities in a county jail, confinement facility, or other type of detention center.
Smith, a freshman lawmaker who served for 16 years as sheriff of Pender County, said in the same news release that he believes law enforcement officers aren’t communicating with each other about the detention of non-citizens accused of crimes and that they are putting politics ahead of public safety.
His comments also appear to be at least partly inaccurate, as ICE reported earlier this year that nearly one-third of the immigrants it took into custody in a week were considered “collateral” — individuals living in the U.S. without proper documentation who got caught up in targeted enforcement activities, but lack any kind of criminal conviction or pending charges.
It’s also been reported in other states that fear of deportation in Latinx and immigrant communities can lead to more unreported crimes. According to the Los Angeles Times,  Latinx residents in several California cities reported 3.5 to 18 percent fewer instances of domestic violence in the first few months of 2017 in response to widespread anti-immigrant rhetoric and an increased ICE presence. At the same time, domestic violence reporting among non-Latinx victims remained virtually unchanged.
Raul Pinto, senior staff attorney in the Immigrants and Refugees Rights Project at the progressive N.C. Justice Center, said immigrants are already fearful because of the recent increase in ICE activity in response to new sheriffs’ policies. (The Justice Center is the parent organization of NC Policy Watch.)
“[HB 370] just continues that trend, and it continues to bring those immigrant communities back into the shadows, eroding the trust that these sheriffs have tried to build between the immigrant community and their officers in order to keep everyone safe,” he said. “You keep deteriorating that trust that these sheriffs think is the best way to keep their communities safe.”
If the bill passes, Pinto said North Carolina could see a decrease in Latinx reported crimes and a decrease in secure communities, similar to California.
“Once fear creeps into the collective mind of the undocumented community, it is really tough to see law enforcement as someone who can help you,” he said.
Like Birdsong, Pinto said there are questions about the constitutionality of HB 370 but also about the separation of power – the state, he said, is trying to clamp down on how law enforcement has decided it should interact with undocumented communities and impose on the will of the people who elected them to make decisions.
North Carolina already has an anti-sanctuary city law on the books. N.C.G.S. 153A-145.5 prohibits counties from having any policy, ordinance or procedure that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.
HB 370 takes that language to the next level and appears to be modeled after similar legislation in Texas and Tennessee.
Senate Bill 4 in Texas is considered one of the strongest ICE cooperation measures in the nation. It requires law enforcement agencies to comply with detainers or face fines and the loss of state funding (notably, the same fines listed in HB 370). Municipalities have filed lawsuits over the bill, but litigation is ongoing. The state also filed suit in December against San Antonio in its first effort to enforce the measure.
HB 2315 in Tennessee went into effect in January and prohibits local law enforcement, cities and counties from enacting sanctuary policies, including efforts to limit cooperation or compliance with ICE detainers. It also specifically prohibits law enforcement from requiring ICE to obtain a warrant or demonstrate probable cause before complying with a detainer request.
Several of the North Carolina sheriffs who have recently decided to end voluntary cooperation with ICE were not available for comment, but some said the mere introduction of HB 370 would not change their current policies.
Durham County Sheriff Clarence Birkhead said he will continue to stand by the directive he gave shortly after being sworn in.
“That directive states, absent of a court order or arrest warrant signed by a judicial official, any person who has had their criminal charges disposed of, or who has made bond will not be held beyond the normal timetable for release,” he said in an email. “This policy adheres to the laws of North Carolina as currently written and allows any federal agency to obtain appropriate court orders or warrants to take someone into custody. Should any agency produce a legal order the Sheriff’s Office will comply.”
James Secor, attorney for the Guilford County Sheriff’s Office, said Monday the sheriff didn’t have a comment yet on the bill, but that officers would continue to communicate openly and honestly with ICE about inmates who are the subject of detainer requests and they will continue to follow their legal obligations.
“Because of our legitimate Fourth Amendment concerns, we will not, however, honor detainers from ICE to actually hold an inmate for up to 48 hours after the inmate’s State criminal charges have been resolved,” he said in an email. “That has been the policy of the Guilford County Sheriff’s Office for a number of years and Sheriff [Danny] Rogers has made it clear that will continue to be our policy.”
Several sheriffs have explained to media since the past election that law enforcement still works with ICE (they’re required to by law), including sharing fingerprints, honoring criminal warrants signed by judicial officials, verifying individuals’ legal status for felonies and impaired driving offenses and notifying the federal agency about criminal ICE warrants.
Law enforcement officials also are not responsible for releasing inmates – bail is set by judges, prosecutors and magistrates. Buncombe County Sheriff Quentin Miller did not have a comment about HB 370, but pointed to some remarks he made in February that he said still stand.
“The public must understand that it is our judicial system that makes decisions on bond amounts and who provides the verdict of who is guilty and who is innocent,” he said. “The judicial system decides to release someone, we simply follow those directives.”
Miller also emphasized how vital it was that members of the immigrant community be able to call the sheriff’s office without fear when they need assistance.
“Our deputies are expected to treat everyone with dignity and respect regardless of the color of their skin or the language that they speak,” he added.
The North Carolina Sheriff’s Association – once described as a 10,000-pound gorilla in the context of how much its support meant in the recent legislative effort to raise the age of juvenile jurisdiction in the state – has not yet taken a position on HB 370.
Executive Vice President and General Counsel Eddie Caldwell said Friday he had read the bill, but the organization hadn’t yet reviewed it to consider a position. He did not return a call Tuesday to see if that was still the case.
Birdsong described the Sheriff’s Association as a powerful lobby in the General Assembly.
“Just in how this usurps local decision-making power and the authority of the sheriff to set policy for his or her own office is breathtaking, and I would hope that the Association and the sheriffs serving in the Association would oppose the bill,” she said.