Gov. Paul LePage put two Maine sheriffs on notice Tuesday after they said they would not hold suspects for federal immigration officials without warrants, issuing a letter that directed all sheriffs in the state to cooperate fully with Immigration and Customs enforcement or face removal from office.
In a letter sent to all 16 counties, LePage invoked his statutory authority to direct sheriffs in law enforcement matters, and pointed to a 2011 executive order directing all employees and officials of the State of Maine to cooperate with federal immigration officials, except when limited by the law or the state and U.S. constitutions.
But one of the sheriffs, Cumberland County’s Kevin Joyce, said he was unswayed by the governor’s letter.
Joyce also said he doubted that LePage grasps the nuances of the ICE detention process, and questioned whether the governor’s order is lawful. While LePage’s order directs compliance with ICE, it also acknowledges that his directive can be limited by statute or the constitutions of Maine or the United States.
“Really, what I’ve been ordered to do is violate the law, violate the Constitution,” Joyce said. “To say we’re not cooperating with ICE, that’s completely false.”
Several sheriffs echoed Joyce’s concerns.
“I stand with Sheriff Kevin Joyce and will not honor a ‘request’ from the federal government to hold an immigrant without proper documentation,” York County Sheriff William King wrote on Facebook late Monday. “I make no apology for protecting the taxpayers of York County from needless litigation.”
On Tuesday, Oxford County Sheriff Wayne Gallant said he would not retain anyone if he believed it violated their constitutional rights.
“We believe in the Fourth Amendment here, and we certainly don’t want to violate anybody’s Fourth Amendment rights with an illegal seizure,” Gallant said. “We have no problem in Oxford County complying with ICE requests and Border Patrol requests, but for somebody to call and say, ‘Hey, hold somebody until we can find out if there’s something wrong with them,’ we don’t take that stance.”
Gallant is president of the Maine Sheriffs’ Association and said the group has “not taken a stance yet” on the issue, and that “there will be some discussion coming up as to whether there’s any sort of direction we want to take.”
“Right now, most of us believe that it’s up to each individual sheriff on what decision they should take,” he said.
LePage’s letter came a day after the Republican governor told national radio host Laura Ingraham that he would remove from office any sheriff who does not cooperate. Joyce and King apparently triggered the governor’s action when they said last week that they no longer would honor detention requests because they would leave their counties open to legal liability.
“My executive order clearly requires this reasonable cooperation on behalf of Maine’s law enforcement officers for the safety of our people,” LePage said in a statement. “If the sheriffs refuse to comply with state and federal law, I am authorized to take additional action to remove them from office under the Maine Constitution.”
ICE detainers are an administrative request for a local agency, such as a sheriff, to hold someone for up to 48 hours who otherwise could be released from jail. The request is designed to give ICE agents time to investigate whether someone should be subject to deportation.
Federal judges, however, have ruled that holding a person simply at the request of another agency without probable cause is a violation of the Fourth Amendment right against unreasonable seizures.
The disagreement stems from the difference in legal authority on which each law enforcement group operates. Federal immigration law is mostly civil, while county jails are set up to hold people on criminal charges.
Shawn Neudauer, an ICE spokesman in Boston, said the agency is “appreciative of the governor’s support but that we’ll let the state handle its own business as it sees fit.”
The letter also was lauded by state Republicans, who framed the issue around public safety.
Joyce has said he would continue to honor detainers if they are accompanied by a judicial warrant, or if ICE inmates are booked into the facility directly from ICE custody. There are currently seven ICE prisoners at Cumberland County Jail, Joyce said.
The Maine Attorney General’s office did not return multiple calls Monday and Tuesday seeking clarification on the legal aspects of the dispute, and the procedures for a governor to remove a sheriff.
But Zachary Heiden, the legal director at the American Civil Liberties Union of Maine, said it appears the governor’s office is misinterpreting a key court decision, Morales v. Chadbourne, that the governor cited in a public statement. The ruling in the 2015 case states that ICE must have probable cause before issuing a detainer, but the LePage administration mistakenly believes the ruling says that ICE is only issuing detainers when it has probable cause, Heiden said.
The Maine Constitution gives LePage the power to remove a sheriff who “is not faithfully or efficiently performing any duty imposed upon the sheriff by law.” The procedure, last attempted in 1951, requires a complaint, due notice to the sheriff and a hearing.
LePage said he would pursue removal if any citizen notifies him of a written ICE detainer that had been ignored by a sheriff’s office. LePage spokeswoman Julie Rabinowitz said the governor’s office was reviewing case law to determine how the process had been used in the past.
“However, the goal is to have the sheriffs comply, and then there will never be a need to investigate complaints or initiate a removal process,” Rabinowitz said in an email.
A growing number of federal judges have found that ICE detainer requests do not themselves constitute probable cause, meaning jails that honor them are at risk of being sued for civil rights violations.
Plaintiffs around the country have received tens of thousands of dollars in judgments or settlements in which they were the subject of a wrongful ICE detainer, including one New York City case that resulted in a $145,000 payout.
King did not respond to requests for comment left with his office Tuesday.
The letter from the governor appeared after a Sept. 14 decision by Joyce to no longer honor those detainer requests. King, in York County, also said he would not honor a detainer if presented with one, but that discussion is hypothetical so far; King said his jail had not received a single detainer request in the two years since he was elected.
Cumberland County, meanwhile, has seen an uptick in ICE-related detentions at the jail, including a jump in the number of detainer requests.
So far this year, 83 people have been arrested or detained by ICE at the Cumberland County Jail – 11 through detainer requests and 72 who were directly arrested, the sheriff’s office said. In 2016, local ICE agents held 40 people at the jail, with five through detainer requests.
In Kennebec County, Sheriff Ken Mason said he will not honor detainer requests without a warrant or other document signed by a judge.
“As sheriff, I am responsible to service municipal, state and federal law enforcement agencies,” Mason said. “If they come in with proper documentation required to hold an individual, then we will hold them.”
The point has been largely moot – Kennebec County jail does not hold federal prisoners because it has been chronically overcrowded, so ICE inmates cannot be housed there.
Somerset County Sheriff Dale Lancaster said his office would honor a detainer if he receives one, but the county has not housed an ICE detainee yet in 2017, and Lancaster could not remember any detentions in recent years.
Androscoggin County received two requests from ICE in the past year to detain inmates, but both were being held on criminal charges, Sheriff Eric G. Samson said.
“We will continue to make arrangements for individuals incarcerated in our facility with ICE detention requests to be picked up by a federal agent upon conclusion of that individual’s local holds,” Samson said in a written response. “We have not experienced a problem with this practice, and it will continue.”
Gallant, the Oxford County sheriff, said he will make his decisions on ICE detainers based on the law.
“It’s not that I or anybody else is disrespecting the governor,” he said. “The governor has the right to give legal orders to the sheriffs, but if I believe it’s a violation of someone’s constitutional rights or law, I’m not going to obey it.”
Kennebec Journal Staff Writer Jessica Lowell, Morning Sentinel Staff EWriter Colin Ellis and the Lewiston Sun Journal contributed to this report.
Matt Byrne can be contacted at 791-6303 or at:
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