Pat Garrett, OSSA President & Washington County SheriffIn January and with the help of smart advisors and our general counsel, I authored a legal analysis of the President’s Executive Order on Immigration. You can find it here. I want to update you about several recent events which complicate sheriffs’ work to operate jails in Oregon.
Brief historical review: for many years, sheriffs honored requests from ICE to detain someone in jail for up to 48 hours after local detention authority expired. In 2014 a federal magistrate in Miranda-Olivares v. Clackamas County ruled such detention unconstitutional. Accordingly, sheriffs across the west stopped honoring ICE detainer requests to comply with the federal court’s clear guidance. Regarding information exchange, a federal statute, 8 USC 1373, prohibits anyone from restricting or interfering with local officials exchanging certain information with ICE. State law, ORS 181A.820, specifically authorizes such information exchange when a person is illegally in the country and commits another violation of the law. It’s important to note the same statute prohibits local law enforcement from using money, equipment or personnel to detect or apprehend persons whose only violation is under federal immigration law. While individual sheriffs rely on their legal advisors in these complex matters, almost every sheriff in the state shares information with ICE in keeping with the federal statute 8 USC 1373.
Recently, the Oregon Legislature passed House Bill 3464 and the governor signed it into law on August 16, 2017, and it is now incorporated into 2017 Oregon Laws, Chapter 724. This new law further restricts what information sheriffs can provide to ICE for purposes of immigration enforcement. In the federal Congress, legislation is currently under consideration that could nullify this law, House Resolution (HR) 3003. This resolution passed the House and is currently sitting in the U.S. Senate. If passed, HR 3003 would expand the scope of law enforcement activities with ICE, and provide protections for local jails that hold persons on ICE detainer requests.
As I said in my January letter, Oregon Sheriffs are bound to follow state law and guidance from the federal courts. If ICE wants a person detained past local authority, Oregon jails will hold a person for ICE if presented with a warrant signed by a federal magistrate or state judge. We will also hold a person if provided a probable cause affidavit from a federal law enforcement officer stating that the officer has probable cause to believe the person has committed a crime.
Looking forward, the U.S. Department of Justice recently published new requirements to qualify for Edward Byrne Memorial Justice Assistance Grant Programs. The new grant conditions include a certification that the local jurisdiction complies with 8 USC 1373, that ICE will be given notice at least 48 hours prior to the release of a person ICE wants to take custody of, and that jails will allow ICE agents access to the jail to interview people to determine their immigration status.
In most cases, such grants don’t constitute a significant portion of a sheriff’s annual budget. However, this grant funding supports important law enforcement services and public safety clearly suffers when such funding is not available. It will be enormously regretful if public safety is jeopardized because of the confluence of new grant requirements and the conflicting laws in our state under which we must maneuver. There is a real risk that Oregon law enforcement agency funding for some law enforcement grants will be restricted due to the Oregon statutory restrictions on sharing information with ICE. These issues involve conflicts of federal and state law and are beyond the ability of any law enforcement agency to control or change.
No matter your opinion about recent events, the growing conflicts between federal and state law clearly puts Sheriffs in a very difficult and risky position regarding jail operations and federal immigration enforcement. Sheriffs will continue to work to build trust with all of our communities and at the same time work with all our law enforcement partners as we follow the law and conserve the peace.
Sheriff Pat Garrett President, OSSA