Why Local Enforcement Of ICE Detainers Threaten Public Safety

(This is the letter that I sent to my representative in the MN House regarding threats posed by two 2017 bills, HF26 and HF29.)

Dear Representative West,

I write as neither an expert in public safety nor in constitutional law, but as a concerned citizen of Blaine and Minnesota.
I am writing to state why I think that lines 1.6-1.14 of HF 26 and lines 2.3-2.11 of HF 29 are unconstitutional and a threat to public safety, liberty, and our sovereignty.

As a resident of Blaine, I pay my city taxes, part of which pay for the police.
The primary services that I expect from the police are protection from crime and intervention to address or prevent crises, e.g., directing traffic after an accident or to prevent accidents.
We do not pay members of the police force much, and we limit how much we pay the police department as a whole.
Therefore, the department is expected to carry out its mission as a good steward of the resources and budget allocated to it.
Traditionally, local police have not had enforcement of civil law within their scope of responsibility.
Furthermore, because crime is not an activity for which the police can plan and make schedules, when faced with addressing simultaneous crimes, the police are forced which among them to choose to address those crimes which are, in their estimation, the greatest threat to public safety.
So, by definition, there are many times that the police simply cannot do all that citizens task them to do (and allocate funds to pay for them to do).
I believe that this is their job, and I hope that citizens and legislators would support them by doing nothing that would diminish their capacity to carry it out.

When I pay my city, state, and federal taxes, I am paying respectively for services approved by local, state, and national citizens, each weighing in at their respective level.
This is local representation; this is the beauty of our federal system, which has endured eleven score and eight years.
The Tenth Amendment to the US Constitution [1] respects and enshrines that federal structure.
Indeed, the US Supreme Court has drawn a firm line, e.g., “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” (Justice Antonin Scalia, writing for the majority in Printz v. United States)
I believe that the second half of the latter quote applies to devoting local resources to address ICE Detainers.
Therefore, it is my opinion and belief that the US Constitution protects us from having our local tax dollars (and the police services that we have procured with them) commandeered to support the federal program to regulate immigration.

I understand that the courts have consistently ruled [2] that the US Congress is empowered by Article I, Section 8, clause 4 of the US Constitution to regulate immigration.
However, these are regulations (rules), not matters of criminal law.
Because immigration regulation falls within the scope of civil law, the rights of people who are arguing their case with ICE are not protected by the due process clauses of the US and Minnesota constitutions.
The complication is the 4th Amendment of the US Constitution [3] (echoed in Sec. 10 of Article I of the MN Constitution), sets the standard for holding a person as that a warrant must be issued for probable cause to believe that a crime has been committed.
Indeed, county government has been held legally liable for damages [4] for violation of the 4th Amendment for holding an individual in compliance with an ICE detainer without probable cause, because ICE detainers, as has indeed been confirmed by the director of ICE, “are not mandatory as a matter of law” [5].

The ACLU of Minnesota has provided an exhaustive analysis of the awkward legal position that compliance with ICE detainers puts counties into [6].
I suspect that it is fair to say that codifying into statute a mandate to maintain custody without probable cause pursuant to an ICE detainer may shift liability to the state and its taxpayers.

The final aspect I want to touch upon is the trust required to involve the undocumented in the process of keeping our communities safe.
In 2006, the Major City Chiefs adopted a statement covering “Recommendations for Enforcement of Immigration Laws By Local Police Agencies” [7].
This statement asserted that “Immigration enforcement by local police would likely negatively effect and undermine the level of trust and cooperation between local police and immigrant communities. … Without assurances that contact with the police would not result in purely civil immigration enforcement action, the hard won trust, communication and cooperation from the immigrant community would disappear. Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts.”

For the reasons above, I caution you and your peers from adopting the detainer-enforcement language of HF 26 and 29.
There is simply too much risk to public safety and to the taxpayer.

Thank you.

Art Eschenlauer

[1] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
[2] http://www.americanbar.org/publications/insights_on_law_andsociety/14/spring-2014/who-is-responsible-for-u-s–immigration-policy-.html
[3] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
[4] https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/04/17/ice-detainer-4th-amendment-violation-miranda-olivares-v-clackamas-county.aspx
[5] http://www.notonemoredeportation.com/wp-content/uploads/2014/02/13-5346-Thompson-signed-response-02.25.14.pdf
[6] https://www.aclu-mn.org/files/5213/9947/4530/Letter_to_sheriffs_on_detainers.pdf
[7] http://web.archive.org/web/20111030215039/http://www.majorcitieschiefs.org/pdf/MCC_Position_Statement.pdf