Updated March 15 with new developments.
New sheriffs in North Carolina’s largest counties won election in 2018 after making high-profile promises not to work with federal immigration agents, whose practices have become more controversial under Republican President Donald Trump.
But some Republican lawmakers in the North Carolina General Assembly don’t want those sheriffs to be able to choose not to work with Immigration and Customs Enforcement.
They filed a bill Thursday that would force sheriffs to work with ICE, at the risk of incurring fines of up to $25,500 per day if they don’t.
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“This is about upholding the rule of law that North Carolina sheriffs swear an oath to defend, instead of making public safety political at great risk to the people of this state,” said Republican bill sponsor Rep. Brenden Jones of Columbus County, in a press release. “We will not allow criminals in the United States illegally to be released from our county jails without any notification of immigration officials.”
The new Mecklenburg County sheriff, Democrat Garry McFadden, took office in late 2018 and ended the county’s participation with ICE, through a controversial program known as a 287(g) partnership, on his first day in office, the Charlotte Observer reported. The 287(g) program authorizes local law enforcement to perform immigration enforcement duties, including providing arrest powers.
Shortly after, ICE conducted raids across the state that immigration activists said were in retaliation for that decision. An ICE spokesman told the Charlotte Observer that the raids were “the new normal.”
New Wake County Sheriff Gerald Baker is a Democrat who unseated longtime Republican incumbent Donnie Harrison in 2018, largely on a platform of ending the 287(g) partnership and other cooperation with ICE.
On Friday, Baker said his office wouldn’t change its policies unless this law passes and forces them to. He also said he didn’t believe the statement from ICE, after those raids earlier this year, that they had no choice but to ramp up raids because of his and McFadden’s choice to leave 287(g).
“They sought to make it as if it was our fault, for their increased activity,” Baker said. “But it’s not. It’s just them having to do the job that they do. And we are not assisting with that.”
McFadden and Baker were among a number of Democratic sheriffs who won election in 2018 after campaigning on promises to curtail their cooperation with ICE. Last fall North Carolina’s seven largest counties all elected black Democratic sheriffs, the News & Observer reported. Five of those counties elected their first-ever black sheriff.
Their victories, and some of their subsequent anti-ICE policies, were what inspired the bill Thursday.
“Several sheriffs in North Carolina aren’t communicating with their fellow law enforcement officers about the detention of illegal immigrants accused of crimes,” Republican Rep. Destin Hall of Caldwell County said in the Republicans’ press release. “These sheriffs are putting politics ahead of public safety.”
The main lobbying group for sheriffs, the North Carolina Sheriffs’ Association, did not ask for the bill, general counsel Eddie Caldwell said. He said he expects some sheriffs will be for it, and some will be against it.
“We haven’t considered it at this point,” Caldwell said, adding that right now, “it is lawful for a sheriff to honor a detainer, and it is lawful for a sheriff to decide not to honor a detainer.”
Orange County Sheriff Charles Blackwood’s department doesn’t honor immigration detainers, which are requests from ICE to keep people in jail after they would normally be released. He didn’t comment on the bill’s specifics, saying: “I do not give any weight to a proposed bill until it is signed, and it is the law.”
Durham County Sheriff Clarence Birkhead has the same policy, which he instituted after taking office in December. In an email Thursday he said there’s nothing illegal about not honoring ICE’s detainer requests, since ICE or any other federal agency can still “obtain appropriate court orders or warrants to take someone into custody” if they want to.
“At this time, I will continue to stand by the directive I gave shortly after being sworn in as Sheriff of Durham County,” Birkhead said in an email. Both Birkhead and Blackwood are Democrats.
On Thursday McFadden’s spokesperson Tonya Rivens said the Mecklenburg sheriff’s office would not comment on the new bill to require the sheriff’s office to work with ICE.
“We don’t have any reason to comment,” she said. “We’ve said all we have to say about 287(g), and we are focusing on our community here.”
The ACLU of North Carolina opposes the bill filed Thursday, attorney Susanna Birdsong said in an interview. The group also opposes ICE detainer requests in general, she said, since those have been found in several court cases to violate the Fourth Amendment of the U.S. Constitution.
“There are examples from Arizona and also from Florida,” she said. “This is something that has been tried and failed in other places.”
Checking immigration status
But the bill has the political backing of House Speaker Tim Moore, a Cleveland County Republican who co-sponsored the measure and said in a press release that “if the law-abiding citizens of North Carolina are subject to enforcement of state and federal law, then illegal immigrants detained for committing crimes should be too.”
The bill, House Bill 370, would also give sheriffs the option of not looking up the immigration status of people who might serve as witnesses to other crimes, or if they are victims of sexual abuse or domestic violence.
Concerns over scaring off potential witnesses, and thus allowing crimes against immigrants to go unpunished, has been part of the reason why sheriffs have sometimes opposed working with ICE to deport locals. So is the broader idea of improving relationships between Hispanic communities and law enforcement.
In addition to no longer letting sheriffs decide whether to work with ICE, the bill would also increase the number of people who have their immigration status checked when arrested. State law currently instructs officials to check the immigration status of anyone charged with a felony or a DUI. But this new bill would make them check the immigration status of anyone charged with any crime.
Birdsong said that could end up being costly for local governments who hadn’t budgeted for the additional jail population this bill would create. The bill is also an example of an over-reaching big government, she said.
“What you see in this bill is a thwarting of local officials making decisions on how to keep their communities safe, and also a thwarting of the will of the people,” Birdsong said. “People voted for these sheriffs for a reason.”