ACLU Urges Law Enforcement to Stop Detaining Individuals Based on I.C.E. Immigration Detainers; Arrest First, Investigate later is Unconstitutional

FOR IMMEDIATE RELEASE:
July 17, 2009

CONTACT:
Brandon Hensler, Director of Communications, (786) 363-2737 or media@aclufl.org

MIAMI – Today the ACLU of Florida, ACLU Immigrants' Rights Project, and prominent Miami immigration attorney Ira J. Kurzban, Esq. sent a joint letter to all 359 local law enforcement agencies in Florida urging them to end the unlawful practice of jailing people based upon “immigration detainers” issued by U.S. Immigrations and Customs Enforcement (“I.C.E.”). The practice entails detaining individuals for 48 hours, not including weekends, for what I.C.E. calls “investigative purposes,” without actual evidence that the person has committed a crime or is unlawfully present in the country.

Congress gave I.C.E. the authorization to request detention of immigrants who are already in custody for controlled substance violations. However, I.C.E. regularly uses these detainers for people not in custody and only rarely do they have anything to do with an alleged controlled substance violation.

“When local law enforcement agencies detain people without lawful authority, they are exposing their counties and cities to enormous liability for false arrest, false imprisonment, constitutional violations, and numerous other claims,” said Glenn Katon, Senior Attorney with the ACLU of Florida. “Enforcement of our nation’s immigration laws is the job of the federal government. When local law enforcement tries to enforce those laws racial and ethnic targeting is often the result. In addition, , as noted by federal, state and local law enforcement officials, fear of local enforcement of immigration laws discourages members of immigrant communities from reporting crimes and cooperating in the investigation of crimes.”

The letter outlines specific reasons why I.C.E. detainers do not provide a lawful basis for arrest or detention. 

The federal government cannot compel local law enforcement to arrest or detain anyone;
I.C.E. detainers purport to allow police to hold people without any due process – so that individuals are being detained in jail for up to four days without any meaningful evidence that they have committed a crime or are in the country illegally; 
These detainers are not arrest warrants. In fact, an I.C.E. “detainer” does not resemble an ordinary criminal detainer in anything but name, since criminal detainers pertain to pending charges approved by a judge.

I.C.E. detainers also exceed statutory authority and violate due process, a right guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. “Our constitution requires that police do their investigation first, then make an arrest if there is sufficient evidence – it does not allow the arrest first and the investigation later,” Katon continued.

In their letter, the ACLU and Kurzban warn that individuals who are unlawfully arrested or detained are provided ample means under federal and state law to seek recovery from law enforcement officers who rely on I.C.E. detainers, exposing local governments to significant financial liability. The letter requests that any agency currently utilizing I.C.E. detainers cease the practice and notify the ACLU of their intentions going forward.

View an example of two different ICE detainer forms here: http://www.aclufl.org/pdfs/DetainerSample.pdf

The full text of a sample letter is below, and a PDF can be downloaded here: http://www.aclufl.org/pdfs/DetainersLetter.pdf

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF FLORIDA

July 16, 2009

Sadie Darnell, Sheriff
Alachua County Sheriff's Office
Post Office Box 1210
Gainesville, Florida 32602-1210

Dear Sheriff Darnell:

We understand that many local law enforcement offices in Florida engage in the practice of detaining individuals based upon “immigration detainers” issued by U.S. Immigration and Customs Enforcement (“ICE”). Such detainers do not provide a lawful basis for arrest or detention. We urge you to consult with counsel based upon the legal authorities set forth in this letter and, if you are currently engaging in this unlawful practice, to immediately cease and desist. Failure to do so will expose your office to significant liability.

The Federal Government Cannot Compel You to Detain Anyone
As an initial matter, the federal government has no authority to require you to arrest or detain anyone. The Tenth Amendment of the U.S. Constitution prohibits such commandeering of state officers by the federal government. Printz v. United States, 521 U.S. 898, 925-35 (1997). Detainer documents are at most requests by the federal government, not commands. You must decide whether those requests are proper and thereby accept legal responsibility for following them.

ICE Detainers are Not Arrest Warrants
An ICE detainer is not an arrest warrant. Warrants can only be issued by judicial officers, not law enforcement agents; federal arrest warrants are issued by federal district or magistrate judges pursuant to the procedures set forth in Federal Rule of Criminal Procedure 4. In fact, an ICE detainer does not even have the force of ICE’s internal administrative “arrest warrants,” which may be based on suspicion of a civil, not criminal, immigration violation. Compare Form I-200 (Warrant of Arrest) with Form I-247 (Immigration Detainer – Notice of Action).

Furthermore, an ICE “detainer” does not resemble an ordinary criminal detainer in anything but name. Criminal detainers pertain to pending charges and are subject to extensive procedural and substantive requirements and safeguards not applied to “detainers” in the immigration context, including the requirement that a judge approve the detainer. See Fla. Stat. § 941.45 (Interstate Agreement on Detainers); see also Major Cities Chiefs Immigration Committee Recommendations, www.majorcitieschiefs.org/pdfpublic/MCC_Position_Statement_REVISED_CEF_2009.pdf, at 8 (ICE’s “civil detainers do not fall within the clear criminal enforcement authority of local police
agencies and in fact lay[] a trap for unwary officers who believe them to be valid criminal warrants or detainers”).

ICE Detainers Cannot Support a Warrantless Arrest
Under the Fourth Amendment of the U.S. Constitution and Article I, § 12 of the Florida Constitution, absent a warrant you may not arrest or detain a person without, at minimum, ensuring that you have probable cause to believe that person has committed a crime. It is of no consequence that you may have originally taken custody of an individual based on a state criminal charge; once a person has posted bond or otherwise resolved that charge, it can no longer serve as a basis to detain. You must develop separate and independent probable cause to justify any additional detention. Cf. State v. Diaz, 850 So.2d 435, 437 (Fla. 2003) (once purpose for legitimate initial stop had been satisfied, further detention could not be justified). In addition to the constitutional limitations on your arrest and detention authority, Florida Statute § 901.15 further restricts the basis on which a law enforcement officer in this state may make warrantless arrests.

It should be clear that ICE detainers neither provide a basis for probable cause nor fall within the scope of § 901.15. The ICE detainer regulation, 8 C.F.R. § 287.7, does not specify that an ICE employee must have probable cause or satisfy any other legal standard of suspicion before issuing a detainer. Nor has ICE published any other rule or procedure explaining when and under what circumstances its employees may issue detainers. In fact, detainer documents themselves typically merely state that an “[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States” – an assertion that falls far short of alleging, much less demonstrating, probable cause. See Papachristou v. City of Jacksonville, 405 U.S.156, 169 (1972) ("We allow our police to make arrests only on ‘probable cause’ . . . . Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system.") (emphasis added). Such an investigation may not even be criminal, since unlawful presence in the United States is not, of itself, a crime. See Congressional Research Service, Immigration Enforcement Within the United States, www.fas.org/sgp/crs/misc/RL33351.pdf, at CRS-8 (“Being illegally present in the U.S. has always been a civil, not criminal, violation . . . .”)

ICE Detainers Exceed Statutory Authority and Violate Due Process
Federal statutes only contemplate or authorize the issuance of an immigration detainer “[i]n the case of an alien who is arrested by a … State[] or local law enforcement official for a violation of any law relating to controlled substances,” and do not provide for an additional detention period even in such cases. 8 U.S.C. § 1357(d) (emphasis added).1 Accord Christopher Lasch, Enforcing The Limits Of The Executive’s Authority To Issue Immigration Detainers, 34 William Mitchell L. Rev. 164, 186-93 & n.119 (finding that 1 No other provision of the immigration code addresses or authorizes immigration detainers. Instead, Congress has carefully delineated the circumstances under which even ICE agents may make immigration arrests, see 8 U.S.C. §§ 1226(a), 1357(a)(2), and has provided state and local police with arrest authority only in particular narrow circumstances, see 8 U.S.C. §§ 1103(a)(10), 1252c, 1324(c), 1357(g). The use of detainers in non-controlled-substances cases contravenes this statutory scheme.

About the ACLU of Florida
The ACLU of Florida is freedom's watchdog, working daily in the courts, legislatures and communities to defend individual rights and personal freedoms guaranteed by the Constitution and the Bill of Rights. For additional information, visit our web site at: www.aclufl.org.

                                                           # # #

2009 Press Releases