Local officials grow wary of helping ICE detain immigrants

Zoom in: As part of President Trump's push to deport "millions" of unauthorized immigrants, ICE has leaned on local agencies to help arrest and temporarily detain unauthorized immigrants.

• Over the past decade most of ICE's arrests involved people who already were in law enforcement custody, according to a review of 10 years of data from Transactional Records Access Clearinghouse (TRAC).
• But with ICE arrests soaring to more than 2,000 a day under Trump, local jail and prison officials are increasingly concerned about being liable for detainees' care — particularly when ICE leaves them in local facilities for lengthy periods.
• The officials note that in the past, lawsuits filed on behalf of ICE detainees wrongly left languishing in local jails have cost local governments enormously — $92.5 million in one New York City case involving 20,000 people who were held in prison for ICE without due process between 1997 and 2012.

How it works: ICE can ask a local agency to hold someone they believe isn't legally in the U.S., using a request called a detainer. Usually there's a 48-hour limit on this request.

• A detainer request from ICE isn't the same as a warrant issued by a judge, which local agencies require to hold their suspects.
• "The ICE administrative warrant is not enough to hold somebody's liberty away," Minnesota Attorney General Keith Ellison (D) told Axios. "It's essentially holding somebody and locking them up when there's no legal, lawful authority to do so."
• "The risk to the institution that's holding them is civil liability," he added. "They could end up paying a lot of money — and not just money, but injunctive relief."

The National Sheriffs' Association has asked the Trump administration to clarify how long someone should be held on ICE's behalf, and has raised the issue with Border Czar Tom Homan.

• The group also has been lobbying Congress to pass a law addressing the issue for sheriffs, who often manage jails.

Between the lines: A few law enforcement officials have spoken publicly about their concerns for ICE detainees' civil liberties under Trump's deportation push — and have faced a backlash from GOP officials for doing so.

• In February, Sheriff Dan Marx of Winneshiek County, Iowa, aired his concerns about cooperating with ICE detainers in a since-deleted Facebook post.
• "The only reason detainers are issued is because the federal agency does not have enough information or has not taken the time to obtain a valid judicial warrant," Marx wrote.
• "These detainers are violations of our 4th Amendment protection against warrantless search, seizure and arrest, and our 6th Amendment right to due process."

Marx's post led Iowa Gov. Kim Reynolds — a Republican who has ordered the state's local law enforcement to "fully cooperate" with Trump's deportation mission — to file a formal complaint against the sheriff.

• Marx was investigated by Iowa's attorney general over whether he violated a state law mandating such cooperation.
• He deleted his first post and issued another statement that said in part: "I do not believe law enforcement officials should have to choose between upholding their sworn duty to the Constitution and following the state statute."

• He declined to be interviewed because of the investigation.
• "From a constitutional standpoint, if we're going to hold somebody in jail or detain them, we want to be doing so lawfully and have legal grounds to do so. And I think for a sheriff to ask for a judicial warrant is reasonable," Michael Tupper, a former police chief in Marshalltown, Iowa, told Axios.

In a New Orleans court, the Orleans Parish Sheriff's Office is being sued by Louisiana's attorney general for not honoring ICE detainers.

• Orleans Parish has a policy of honoring ICE detainers only when a detainee has a warrant for a violent offense.
• The policy stems from has a legal settlement from 2010, when two men in the Orleans jail were held without due process for two months longer than their sentences, waiting for ICE.
• Louisiana Attorney General Liz Murrill (R) argues it amounts to a sanctuary policy, in violation of state law. The case is ongoing.

Several other jurisdictions nationwide have faced similar lawsuits when people have been held on ICE detainers longer than their sentences or after their cases were dismissed. Some, like Orleans Parish, are changing their policies to limit their exposure to such suits.

• Montgomery and Delaware counties in Pennsylvania, for example, now require judicial warrants in addition to an ICE detainers to hold immigration detainees.

What they're saying: "When a sheriff or a police chief stands up and voices concerns, they are oftentimes painted as soft on crime, or, you know, they don't care about keeping their community safe," Tupper said. "It's really the opposite. These folks are trying to do the right thing for the community."

• As Trump's deportation effort continues, that pressure on police chiefs and sheriffs is likely to build.
• "If they speak up too much," said retired police chief Mark Prosser of Stormlake, Iowa, "then perhaps an immigration enforcement activity is going to come to a community near you."