By Jason Howe
You have to hand it to Sheriff Lee Baca. He sometimes arrives at the correct conclusion. It’s just not very often that he does it quickly, easily or without a lot of coercion – i.e. being sued.
The latest case in point is his announcement this week that he will no longer turn over low-level, non-U.S. citizen offenders to the custody of federal Immigration and Customs Enforcement (ICE) officials. Just like the LAPD. Just like other local agencies across the state. Just like California Attorney General Kamala Harris finally announced that no agency is required to do.
We at the ACLU of Southern California have been trying to get that message to Baca for years, but to date, he has been one of the most adamant supporters of complying with the federal “Secure Communities” program, or S-Comm for short, insisting adamantly, but incorrectly, that the sheriff’s department was legally obligated to comply with all detainer requests. In theory, the program targets illegal immigrants arrested for serious crimes for deportation. In practice, S-Comm sweeps up those arrested for minor offenses, crime victims, even U.S. citizens. Under S-Comm, ICE agents send a request – a “detainer” or hold – to local law enforcement officials asking them to detain someone in their custody while ICE mulls over possible transfer to federal custody – and deportation proceedings. The program has led to the deportations of more than 80,000 California residents in less than three years, most of whom represented no threat to public safety.
But many law enforcement agencies go far beyond the requirements of S-Comm, holding detainees much longer than the 48 hours mandated by ICE – even when they have yet to be accused of a crime or when a judge has ordered their release. In October, we filed suit on behalf of British filmmaker Duncan Roy and a number of others illegally detained by the L.A. County Sheriff’s Department. Roy spent nearly three months in detention; like many other detainees, deputies did not allow him to post bail even though a judge had ordered his release. Policies like that have resulted in the detentions of thousands of people who pose little or no threat to our communities, clogging jails that are already bursting at the seams and at a cost of hundreds of thousands of dollars to local law enforcement agencies. And while any change to S-Comm rules would certainly help, the fact remains that detainers are not a warrant and are almost always unconstitutional. The correct response is for those local agencies to recognize that complying with ICE holds is voluntary -- and to decline to honor them.
So we welcome Baca’s Sacramento-induced epiphany. We really do. He joins LAPD Chief Charlie Beck and other law enforcement agencies across the state who agree with the attorney general that local agencies can craft their own response to S-Comm. But there’s a better way than the patchwork of policies this creates -- a bill vetoed by Governor Brown in September and reintroduced in the legislature this week. The TRUST Act would limit action on ICE holds to those convicted of a serious or violent felony. It would prevent local agencies from spending scarce resources to foot the bill for federal detentions and would improve public safety by encouraging community members to work with police to investigate crimes. A coherent statewide police serves all of us better. Baca has been a harsh critic of the TRUST Act – we’re hopeful his recent conversion on S-Comm will help him see it in a new light.

By Jennie Pasquarella, ACLU of Southern California and Julia Mass, ACLU of Northern California
For the first time yesterday, California Attorney General Kamala Harris publicly weighed in on the hotly-contested federal immigration program, Secure Communities (S-Comm). In an information bulletin to local law enforcement agencies, she provides much needed clarification to these agencies about the parameters of their cooperation with federal immigration enforcement. Her statement should finally put to bed any lingering doubt that immigration detainers are voluntary requests and that each local agency may make its own decisions about whether or not to enforce the requests, at its own expense.
Through S-Comm, immigration agents send requests known as immigration detainers (or immigration holds) to local law enforcement agencies to ask that they continue the detention of a person in their custody beyond the time they would otherwise be released so that immigration agents can pick them up. S-Comm has led to the deportation of 82,531 California residents in fewer than three years – a large number of whom presented no threat to public safety.
Because many law enforcement agencies thought they were required to abide by immigration detainers, local police throughout the state have locked-up thousands of people who pose no threat to our communities for no reason other than that ICE wants to deport them. Worse, many local agencies have refused to allow people with immigration detainers to post bail or otherwise participate in pretrial release services, clogging up already overcrowded jails throughout the state by unlawfully prolonging an individual’s incarceration. Moreover, even though the requests are made by the federal government, Uncle Sam does not foot the bill. Instead, sheriff and police departments have spent hundreds of thousands of dollars in recent years detaining tens of thousands of community members for civil immigration enforcement purposes because of S-Comm.
For years, the ACLU of California and other advocates have been attempting to correct the mistaken belief of many local law enforcement agencies that an immigration detainer was a compulsory order by the federal government requiring that they detain an individual beyond their release date. In April 2011, our offices, along with the National Immigration Law Center and the Immigrant Legal Resource Center, urged the Attorney General to issue guidance to correct these misunderstandings and free local sheriffs from the perceived tyranny of federal immigration hold requests.
This perceived tyranny was a centerpiece of the California Sherriff’s Association’s opposition to California’s TRUST Act last year. The TRUST Act, which was reintroduced on Monday, will limit enforcement of immigration detainers to persons who have been convicted of a serious or violent felony. It is a much-needed antidote to S-Comm’s overreaching impact and effect, to stop counties from diverting their own resources to assist in the detention and deportation of arrestees who are not even federal immigration enforcement priorities. In August, a group of about 30 law professors and deans from around the country wrote to California Gov. Jerry Brown in support of the TRUST Act, reaffirming the voluntary nature of immigration hold requests and raising constitutional and policy concerns about immigration holds generally.
The attorney general is right to point out that local communities can adopt their own policies regarding when police or Sheriff’s departments should hold individuals for immigration – Santa Clara County has already done this and the Los Angeles Police Department will enact a policy soon. And just today, Los Angeles County Sheriff Lee Baca announced he will no longer detain immigrants suspected of low-level crimes. However, an even better solution would be to have a uniform statewide policy, ensuring that in every city and county of the state the rule is the same and immigration-based detention is authorized only when doing so makes sense for public safety priorities. That’s what the TRUST Act will do if it’s approved by Gov. Brown, and that’s what local police and sheriff’s departments should support.
Learn more about the ACLU’s recent immigration detainer lawsuit against Los Angeles County: www.aclusocal.org/ice-holds.