Sen. Jeff Flake (along with fellow Arizona Senator John McCain) has proposed worthwhile legislation to fix one of the cracks in immigration enforcement. Here’s the crack:
ICE frequently issues detainer orders to local law enforcement agencies to pick up illegal immigrants. The locals are supposed to hold the illegal for up to 48 hours while ICE comes to pick him up.
However, two federal district courts (D. Minn. and N.D. Ill.) have found detainers to be unlawful arrests. In essence, these courts ruled that ICE doesn’t have probable cause to conclude that the immigrant is here illegally or, more plausibly, to conclude that he is a flight risk.
In response to these rulings, the ACLU is sending letters to sheriffs telling them that (a) don’t need to comply with ICE detainers and (b) if they do comply they will be hit with costly lawsuits (under Section 1983). This creates a dilemma for local governments. Their insurers worry about the potential consequences of detainer compliance. At the same time, governments worry that noncompliance will expose them to funding restrictions as a “sanctuary,” especially in Arizona where state law (SB 1070) contains strong anti-sanctuary provisions.
This situation offers a glimpse into the “Guerrilla warfare” being waged against enforcement of immigration law. One observer compares it to what Justice Alito called the Guerrilla war being waged against the death penalty, whereby anti-death penalty activists bully the weakest link in the chain (pharma companies) to effectuate a policy change from the bottom up. Here, activists are targeting cash-strapped local governments because they’re sensitive to cost in ways DOJ/DHS are not.
Sen. Flake has come up with an elegant response. His bill would indemnify state and local governments for judgments and litigation costs incurred by following an otherwise-valid detainer.
Ideally, state and local law enforcement officials would be immunized. But it’s implausible to think that this approach would pass muster, especially in the Ninth Circuit. Thus, standard anti-sanctuary immunity provision probably won’t help border sheriffs.
However, there’s no reason why locals should have to foot the bill for federal law-enforcement decisions. If the ACLU doesn’t like ICE’s detainers, take it up with ICE.
The text of the bill, which has the added virtue of being just two pages, is here.