Dozens of sheriffs around the country are refusing to detain noncitizens convicted of crimes for extra time to allow the federal government to start deportation proceedings after a court ruling that one immigrant's civil rights had been violated when she was held without probable cause.
"When a judge says something is in violation of the Fourth Amendment, I am not going to just keep doing it," Sheriff William Gore of San Diego told The New York Times
. "If they want to take someone into federal custody, the can decide to do that, but I am not going to keep holding somebody because they ask me to, and nothing more than that."
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But the local decisions could limit the how the government enforces immigration law while decreasing the numbers of people deported each year.
Sheriffs started refusing to honor the federal detainee policy that asks them to hold inmates for up to 48 hours without probable cause for a criminal violation after this spring's ruling by a federal judge in Oregon.
The refusal quickly spread, with noncitizen offenders getting released as soon as they have done their time, rather than being held for the Department of Homeland Security.
Many of the sheriffs in California, Minnesota, Kansas, and Washington, as well as Oregon, said the court decision forced their action in the interest of self-protection, rather than anything to do with their positions on immigration.
In June, California Attorney General Kamala Harris sent out an advisory telling law enforcement departments they could face lawsuits if they abide by the federal government's detainer requests.
"When local law enforcement officials are seen as de facto immigration enforcers, it erodes the trust between our peace officers and the communities they serve," Harris said in the advisory.
"Federal immigration detainers are voluntary and this bulletin supports the TRUST Act and law enforcement leaders' discretion to utilize resources in the manner that best serves their communities."
Back in 2012, Harris also sent out a bulletin noting that detainers are not mandatory, but are "merely requests enforceable at the discretion of the state and local agency."
The sheriffs' refusal may add to the pressure on President Barack Obama, who is facing complaints from both sides of the immigration issue as illegal migrants continue to pour across the Mexican border.
It's not only violent offenders who are detained. Federal officials can even ask for holds on inmates who have committed a minor misdemeanor, such as driving without a license.
The federal program, which was initially described as voluntary and then implied as mandatory, requires jails to send fingerprints of all people arrested to the Department of Homeland Security, whether or not those people are in the country illegally.
"We've always tried to pin down whether this is a 'shall' or 'will' or 'may' — is it a request or an order?" Gore told The Times. "There's never been a real answer to that."
California last year passed legislation known as the Trust Act, which eliminates the detainee program statewide, and federal officials said they would not stop the new law.
But that does not mean all California sheriffs are letting their noncitizen inmates go when their time is up.
Kern County Sheriff Donny Youngblood told The Times that he continues to hold inmates for the federal government, saying that he thinks people who are in the country illegally that commit a crime should be deported.
"If you show not once but multiple times you have no respect for the laws of this country, that's disturbing," said Youngblood. "We have an obligation to public safety, and if someone is charged with a serious criminal act and immigration officials want him, I reserve the right to hold that person so that can happen."
Homeland Security Secretary Jeh Johnson has admitted the Secure Communities program, which issues many of the holds, has flaws.
"It's gotten off to a very bad start," Johnson told the Senate in June. When sheriffs refuse to detain inmates and laws limiting local cooperation are passed, that "limits the ability of our people to do their job."
But Jennie Pasquarella, an attorney with the American Civil Liberties Union of Southern California, has sent letters to county sheriffs warning telling them they should stop honoring the federal immigration directive.
"This is a problem with basic civil rights — we do not hold people without due process in this country," she said. "You cannot deprive someone of liberty without having probable cause to know they could be deported."
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