Police must have reason to stop, detain or jail U.S. citizens.
That is the guarantee of the Fourth Amendment. It’s why probable cause is important, why warrants are OK’d by judges.
But what if the person under the microscope is an immigrant, perhaps suspected of being an illegal immigrant? Should the rules change? Not entirely. Not if the American Civil Liberties Union has anything to say about it, for good reason.
In recent years, there have been court cases around the country challenging when U.S. citizens have been jailed and held mistakenly at the request of U.S. Immigration and Customs Enforcement.
In some cases, citizens have continued to be jailed after posting bond, simply because immigration officials suspected the person might be deportable or of interest. A federal court ruled in March that local jails are liable for wrongfully holding people at the request of immigration officials beyond what the law allows, the initial reason they were in custody.
The ACLU has made it a national project to press law enforcement to stop holding people on detainers unless ICE offers legally binding reasons. Cities and counties across the nation — including some in California, Colorado, Connecticut, New York City, New Orleans and D.C. — are reacting, passing new laws to limit how they manage the requests from ICE or stopping the practice altogether.
Now the effort has reached Kansas. Within the month, Johnson, Shawnee, Sedgwick and Finney counties have announced they will stop honoring the detainer requests of ICE that come without probable cause or a warrant. That means the people in question will not be held beyond the release dates for the violation that brought them to law enforcement in the first place.
Wyandotte County Sheriff Don Ash will continue complying for now, but he said he is close to following the lead of Johnson County. Ash also said that in recent weeks, ICE has issued fewer detainers to the county and has picked up people for deportation more quickly, perhaps a reaction to the national pressure.
Shawn Neudauer, spokesman for ICE, stressed the agency will continue working with the counties, focusing Kansas efforts on “identifying and removing convicted criminals and others who are public safety threats.”
Detainers are just one way that law enforcement comes into contact with immigrants, legally and illegally in the country. It’s a complicated issue. Obviously, if undocumented immigrants commit violent crimes, there is good reason to want them deported after they are convicted and serve their sentence. Procedures and relationships exist with corrections officials for that to happen.
But police do not want immigrant communities to fear law enforcement. That would lessen cooperation from immigrants as witnesses or as victims of crimes. Police do not want to be viewed as immigration agents.
That doesn’t mean the departments do not cooperate with ICE. They do. Also for good reason. Interstates 70 and 35 intersect the metro. Drug running and human trafficking are among the more serious and sweeping crimes that necessitate working relationships.
The detainers are different. They are a request, not a criminal warrant. They entail ICE asking law enforcement to hold someone for an additional 48 hours, plus weekends and holidays. The extra time is intended to allow ICE to interview the person and possibly establish the paperwork necessary to start deportation proceedings.
But mistakes have happened, often because of glitches in immigration records. And bias, officials not believing an immigrant’s papers are legitimate, also is a factor.
In one of the most egregious cases to be litigated, a U.S. citizen and Army veteran was sent to a detention center in Tacoma, Wash., for seven months before the courts intervened and he was released. Findings in similar cases are what the ACLU is citing to inform counties that they are liable for mistaken holds. Virtually all of the noted cases where abuses occurred involved a U.S. citizen of Latino background.
The ACLU of Kansas prompted the county responses by sending a series of letters in May to the 10 counties that have been sent the highest number of detainer requests. On the Missouri side, the ACLU did not send letters, but it is “actively investigating similar issues.”
ICE fears that jurisdictions will release a dangerous immigrant who will later commit a crime. It’s a valid fear. But dealing with it so far has compromised some citizens’ rights. It also puts ICE in the position of doing a bit of guesswork to determine who might commit a crime later. And the known statistics don’t lean in its favor. Native-born people are far more likely to commit crimes than immigrants, repeated studies have found.
The ACLU has been informing the Kansas counties of the number of detainers that have been requested of them and the percentages of those people who had no criminal record. It’s high. One study found that from 2008 through fiscal year 2011, nearly 1 million detainers were requested. For more than three out of four (77.4 percent), the person had no criminal record at the time, nor later. And often the conviction was a traffic violation.
The emphasis of deportation should always be on immigrants with violent criminal records, ensuring that they serve time and then are forced out of the country. Wasting time and money chasing around immigrants in general, possibly scooping up U.S. citizens in the process, was never a sound approach constitutionally, nor by community outcome.
Increasingly, the pressure is mounting in the right direction for ICE — in cooperation with law enforcement — to do better.