Close to Home: Sheriff can dig in heels more

Sonoma County Sheriff Steve Freitas recently signaled a significant policy shift that limits compliance with requests from the Immigrations and Customs Enforcement agency asking his office to hold suspected unlawfully present undocumented noncitizens in county custody until federal authorities can interrogate or take custody of them.

Although he initially argued that resisting ICE requests would violate federal law, his recent policy shift is legally sound, aligns with the state TRUST Act and could, in fact, go further in asserting independence from ICE — if the lessons of other California jurisdictions are any guide.

Currently, two states, California and Connecticut, as well as at least 14 jurisdictions nationwide — including the cities of San Francisco and Berkeley and Santa Clara, San Bernardino and Alameda counties — maintain non-cooperation policies that limit compliance with federal hold requests. The reasons are varied, including the high costs of detention, the desire to focus on more pressing public safety priorities and the risk to law enforcement's relationship with immigrant communities.

For guidance as he decides whether to make his interim policy permanent, Freitas and Sonoma County may wish to consult the Santa Clara County civil detainer policy, initiated in 2011, and recently reaffirmed. As per the policy, Santa Clara County responds to ICE holds only on the condition that the federal government agrees, in writing, to fully reimburse the county for its costs in fulfilling the detainer. Because the federal government does not fully reimburse local law enforcement for all costs associated with the detainers, and will not enter into any written agreements promising to do so, the policy effectively means that Santa Clara County does not respond to any ICE hold requests.

Cook County, Ill. (which includes Chicago), Miami-Dade County, Fla. and Washington, D.C. maintain similarly broad detainer-resistance policies.

Like those jurisdictions, Sonoma County can flatly refuse to comply with ICE detainer requests without fear of violating federal law. Under well-established U.S. Supreme Court jurisprudence, the federal government may not command or direct local law enforcement officials to carry out federal law. This interpretation of the Tenth Amendment, known as the "anti-commandeering" principle, means that a federal immigration detainer, at most, amounts to a "request" from the federal government. While the federal government can incentivize and encourage state and local compliance with ICE holds, they cannot force county officials to utilize county resources and personnel to hold noncitizens.

Indeed, the legal risks for Sonoma County likely arise, not from resisting ICE hold requests, but rather from choosing to comply with them. The type of detention required by these immigration hold requests — which often require keeping an individual beyond the time the county could or would otherwise keep a person in custody — raises serious constitutional concerns. Also, ICE need not meet any particular evidentiary standard before issuing the request and, in the past, has issued holds that have resulted in the detention of U.S. citizens.

The timing, standards and risk of error in compliance implicate the Fourth Amendment's prohibition on unreasonable searches and seizures and related due process concerns. Further, because of the danger of racial profiling inherent in local enforcement of immigration law with minimal evidence, compliance by states and counties threatens to run afoul of the Constitution's guarantee of equal protection for all persons.

While the sheriff and Sonoma County have taken the required step of bringing the county into line with state policy, they have the latitude to assert greater autonomy and need not be co-opted into, and subsidize, federal enforcement responsibility.

Pratheepan Gulasekaram teaches constitutional law and immigration law as an associate professor at Santa Clara University.

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