FORCE MULTIPLIERS: Inland sheriffs, immigration and state vs federal discretion

FORCE MULTIPLIERS: Inland sheriffs, immigration and state vs federal discretion

S. E. Williams

Several California sheriffs, including Sheriff John McMahon of San Bernardino County, recently met with Attorney General Jefferson Beauregard Sessions III. 

This week, The Voice/Black Voice News reached out to McMahon and Riverside County Sheriff, Stanley Sniff, to gain their insight regarding immigration enforcement, the 287(g) Program and its application in the inland region. 

The 287(g) program is one of the U.S. Immigration and Customs Enforcement (ICE) Department’s top partnership initiatives. It allows state and local law enforcement entities to enter partnerships with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions. When the plan was implemented during the George W. Bush administration in 2005, Department of Homeland Security officials referred to it as a Force Multiplier. 

Force Multiplier is a military term used to describe a capability that, when added to and employed by a combat force, significantly increases the combat potential of that force and enhances the probability of successful mission accomplishment. 

Some were highly critical of the 287(g) Program. They claimed it led to racial profiling by state and local officers who did not really understand federal immigration law—although program officials claim the training provided is adequate. 

The Department of Homeland Security (DHS) currently operates two types of 287(g) agreements—Task Force Models and Jail Enforcement Models. 

Under the Task Force Model, deputized officers may interrogate and arrest alleged non-citizens encountered in the field who they believe have violated federal immigration laws. 

Under the Jail Enforcement Model (previously utilized in Riverside and San Bernardino Counties), deputized officers may interrogate alleged non-citizens who have been arrested on state or local charges and may lodge immigration “detainers” on inmates thought to be subject to removal. 

In 2014, California passed an immigration law known as the Transparency and Responsibility Using State Tools (TRUST) Act, which sets limits on who state and local authorities can detain for ICE; and established guidelines for the transition from local criminal custody to ICE custody. 

It prevents local law enforcement from detaining non-citizens pursuant to an immigration “hold” or detainer beyond the time that they otherwise could be released from criminal custody, without judicial review. 

The Trust Act does not apply to all non-citizens. When for example, a non-citizen has certain convictions, including past convictions; or, is held to answer on certain felony charges; and provided it does not violate any law or local policy—local law enforcement is permitted but never required to detain a person pursuant to the 48-hour immigration hold. 

McMahon and Sniff responded to inquiries on this important and pressing issue. McMahon also shared information regarding the sheriffs’ meeting with Sessions and pointed to a memorandum and interview on Facebook that provided those details. McMahon made the information available for public viewing on Friday, February 24. 

Looking back, the timing of the February 7th meeting with Sessions may be partly to blame for why it went largely unnoticed by many in the media, especially in light of the role California is expected to play in pushing back against much of the Trump agenda. 

It occurred as the nation fretted over President Trump’s disruptive travel ban. Others fearfully braced for what hung over the horizon in regards to immigration and forced deportation. Also on that day, many others in the nation were simultaneously riveted and appalled when Senate Majority leader Mitch McConnell unceremoniously silenced Massachusetts Senator Elizabeth Warren during her rigorous opposition to the confirmation of one of the most controversial candidates for U.S. Attorney General in the nation’s history— Alabama Senator Jefferson Beauregard Sessions III.

Riverside’s Sheriff Sniff confirmed to The Voice/Black Voice News that he did not attend the meeting held in Sessions’ Senate office that fateful day. In addition to McMahon, among the six California sheriffs who did participate in the session were Sonoma County’s Steve Freitas; Scott Jones of Sacramento County; Donny Youngblood from Kern County; Under-sheriff Don Barnes of Orange County; and David Livingston of Contra Costa County. 

Even before Livingston returned from Washington, D.C., the CBS affiliate in San Francisco Bay reported how news of Livingston’s participation in the meeting with Session sparked demonstrations outside of his office in Contra Costa County. The report highlighted how the demonstrators were emotional, frustrated and demanded more from their elected leaders. “This sheriff definitely doesn’t represent me or my community,” one protester told CBS. 

As McMahon shared his participation in the meeting he described how he travels to Washington D.C. each year to meet with major county sheriffs from across the country. “We regularly interact with legislators; the attorney general; on occasion, the vice president; and this time, the president spoke to the group.” 

McMahon stressed his belief in how important it is to have those conversations with federal law enforcement partners—particularly, the attorney general. “He was willing to meet with local law enforcement. That meeting was specifically for California sheriffs,” he said. 

McMahon also stressed how important it was to the County of San Bernardino for him to gain perspective on what law enforcement collaboration and cooperation with federal partners will look like into the future. 

McMahon noted how the 286(g) Program was suspended in 2014, primarily because of changes in laws in addition to a recent court decision that now prevents law enforcement agencies from detaining those wanted by ICE for the additional 48 hours “The Trust Act limited law enforcement’s ability to place ICE detainers on certain inmates,” McMahon said. 

“Because of the reduction in the number of inmates eligible for ICE detainers,” he continued, ”the program was no longer valid or worth the time it took our employees to participate.” For example, in 2014, according to the sheriff, 83,000 people were booked into jails in San Bernardino County. Out of the 83,000 booked, only 424 inmates or ½ of one percent were eligible for ICE detainers. 

McMahon then turned his attention to state legislative activity related to the so-called, Sanctuary State Bill, California’s SB54. Although the SB54 is incomplete, the legislation would restrict the extent to which local law enforcement can work with ICE. 

“I’m very familiar with Senate Bill 54,” McMahon said.” I’ve read the proposed language and I’ve just signed a letter of opposition to the author. My concern with preventing law enforcement from having the ability to communicate with ICE, or any other federal agency for that matter, puts the safety of our citizens at risk.”

As an example of the importance of that relationship, McMahon discussed the critical role played by ICE following the December 2, 2015, terrorist attack in San Bernardino particularly as it related to the K-1 Visa process. One of the terrorists, Tashfeen Malik, entered the country with one of these Visas. “We reached out to ICE to determine how that individual was allowed in the country; who was the sponsor and obtained some background information. That information was critical to our ability to investigate that case.” 

So far, as the bill is currently written it does not completely eliminate all cooperation between local and federal law enforcement. 

During the sheriffs’ meeting with Sessions, McMahon said he explained their concerns regarding their inability to detain those inmates wanted by ICE for up to 48 hours. He also identified what he said was, “The need for law enforcement to have some type of document indicating judicial review so that the detention is legal.” 

“A couple of years ago,” McMahon explained, “A federal court decided additional detention is a violation of the Fourth Amendment without some form of judicial review. This means the ICE officials would have to provide the law enforcement agency with a warrant or probable cause declaration, reviewed and signed by a judge. Because ICE no longer provides that form of judicial review, we no longer detain those individuals past their county release time.” 

Sessions was familiar with the judicial review requirement for the additional 48 hour-detention of those wanted by ICE. As McMahon explained, “He expressed to us he was going to look into that process and see if the [federal] government can do something differently that would help us and allow us to detain those individuals for ICE.” 

He continued, “To be quite honest, those that are wanted by ICE, that are detained in our facility are dangerous criminals. If we allow that inmate to walk out of our jail and ICE isn’t there to pick them up, that inmate returns to the community. That could pose a danger for the public that we serve and try to protect by allowing a known criminal to re-enter their communities.” 

This presents an addition concern according to McMahon. “ICE will then go into those neighborhoods looking for that individual and ultimately make the arrest on their own.” He concluded, “It’s much safer for everybody involved if we could hand-off that inmate from our custody, to the custody of ICE and they can continue through their process.” 

With the swearing in of President Donald J. Trump, the issue of immigration has once again reached a boiling point. Despite the controversies and short-comings of the past, the Department of Homeland Security is once again encouraging local police/sheriff departments to participate in the federal 286(g) program. 

Both Riverside and San Bernardino Counties had participated in the program from 2006 to 2014. Sniff explained the demise of Riverside’s participation, “It ended as a result of both parties not being able to come to an agreement on the Memorandum of Agreement (MOA).” 

In regards to San Bernardino County, McMahon reiterated, “We suspended the program because it was not effective based on current court decisions as well as state and federal law.” And concluded, “If the law changes, or the judicial review process enabling us to detain them for an additional 48 hours changes, we will re-evaluate that program. 

Sniff shared similar sentiments regarding the possibility of re-establishing the 286(g) Program in Riverside County, “If and when the Department of Homeland Security releases a new 287 (g) program, the Riverside County Sheriff’s Department would evaluate it at that time.” 

As the immigration process moves forward there are two important points for readers to remember. Firstly, the 287(g) program was never designed to allow state and local agencies to perform random street operations. It was not designed to impact issues such as excessive occupancy and day laborer activities. According to ICE officials, the 285(g) Program was designed to identify individuals for potential removal, who pose a threat to public safety, as a result of an arrest and /or conviction for state crimes. It does not impact traffic offenses such as driving without a license unless the offense leads to an arrest. 

Secondly, laws currently under consideration by the California legislature cannot stop federal immigration officers from conducting immigration/deportation raids in the state; however, the legislature can pass laws that prohibit local police and sheriff deputies from assisting the federal government in its enforcement of immigration regulations.

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