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Last week a U.S. citizen born in Philadelphia filed a lawsuit after a Florida sheriff took him into custody under immigration laws. (No law enforcement entity in the country has jurisdication over U.S. citizens under immigration laws, a point that ICE itself has repeatedly avowed.)
The sheriff is claiming that the agreement he has with Immigration and Customs Enforcement -- to earn a $50 bounty for each person turned over to ICE -- immunizes him from any litigation. Instead, though, the payments might be grounds for charging the sheriff with criminal kidnapping.
The ICE announcement of the new partnerships acknowledges past litigation had made counties reluctant to hold people on immigration detainers, insofar as courts have found that these do not alone provide "probable cause" for an arrest.
ICE explains that the new agreement should assuage county concerns on this score:
Recognizing these challenges, the National Sheriffs’ Association (NSA) and the Major County Sheriffs of America (MCSA) worked with ICE to develop a new process to clarify that aliens held by these jurisdictions are held under the color of federal authority, thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.
The ACLU and other civil rights organizations vigorously dispute this.
Journalists covering this are understandably confused.
Here's the quick version of the big picture:
1) Congress in 1996 voted to amend the law controlling immigration detainers. The amendment was Sec. 133 in the 1996 bill, and it was to section 237 in the previous bill, and so called 237 (g).
The text of the 1996 bill is now in the U.S. Code as 8 U.S.C. 1357.
2) The dispute is about this language (from the 1996 bill) and promises based on it:
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
3) The problem for Monroe County and others operating under these agreements are two-fold:
a) Nothing in this language exempts anyone in law enforcement from the "probable cause" threshold for taking someone into physical custody. If the government lacks probable cause, especially if the person is a U.S. citizen, then holding the person in custody is false imprisonment or even kidnapping. There is no Federal authority for doing this, and thus there is no basis on which a local sheriff would be able to prevail in asserting they were acting on behalf of ICE.
For the most part, litigation has been civil, though under Obama, the DOJ did successfully criminally prosecute two East Haven police officers. At some point a prosecutor who believes in the rule of law will prosecute for this, as did prosecutors in the 1850s when they brought charges against U.S. marshals or slave agents who kidnapped people accused of being escaped slaves.
Under Florida law: (1)(a)The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage...
ICE is giving the county sheriffs a reward of $50 for holding Mr. Brown after his April 26, 2018 court hearing against his will and without lawful authority. Discovery presumably would prove that the cash incentives were implemented because ICE otherwise was having a problem with enlisting the cooperation of the sheriffs.
b) The claims of ICE officials asserting the agreements indemnify the sheriffs are not legally enforceable. Just because someone with a government title, say, "President of the United States," puts something on a web site, or in an agreement with a local county, that does not make that agreement binding on the federal government. No one in the government can supersede the Fourth Amendment, period.
4) The National Sheriff Association and the sheriffs in Florida seem to have indulged in some magical thinking to the contrary.
5) The reason that ICE is doing this is that it continues to have problems with buy-in to the original 287 (g) program. A 2018 budget request indicated only 31 counties were participating. The 2019 budget request says the number has gone up to 60 and that ICE anticipates an additional 23 MOAs, but that's still a miniscule fraction of the 3100 counties nation-wide. The new BOAs are supposed to change this.
At present ICE lists 78 counties as having signed the MOAs, about 2.5% of all eligible counties, and in areas that represent an even smaller jurisdiction over the U.S. population, because they are largely in areas sparsely populated. 97.5% of U.S. counties are not participating because of a mix of anti-deportation sentiment and litigation risk aversion.
The American Civil Liberties Union has a terrific FAQ about the "Basic Ordering Agreements" ICE rolled out earlier this year in Florida. And here's the complaint against Monroe County filed on behalf of Peter Sean Brown, and the story behind it.
The National Immigrant Justice Center, Southern Poverty Law Center, American Immigration Council, the American Immigration Lawyer Association, and the National Immigration Law Center also partnered on a March, 2018 report detailing the case law at odds with ICE's claims that its local partnerships indemnify the counties.
ICE acknowledges rogue operations in which agents go undercover to trick immigrants into providing location information to assist with the arrests of family members or co-workers. Here it seems the rogue operation is to trick sheriffs into believing false imprisonment possible without consequences.
