The North Carolina Sheriffs’ Association has reversed its position on an effort by state lawmakers to require law enforcement agencies to cooperate with immigration authorities.

House Bill 370 attempts to address what happens when U.S. Immigration and Customs Enforcement asks law enforcement agencies to keep custody of a person suspected of being in the country illegally. ICE is empowered to take custody of some immigrants, but courts have ruled that law enforcement agencies have the right to ignore ICE detainers because they’re requests seeking voluntary compliance.





So some sheriffs — including those in Wake and Mecklenburg counties — ignore the detainer requests, a move that has drawn criticism from Republican state lawmakers. (Republican state Sen. Dan Bishop, who’s running for Congress against Democrat Dan McCready, on Tuesday called on Mecklenburg Sheriff Garry McFadden to resign for refusing to cooperate with ICE.)

Click to resize

The association, which opposed the first draft of HB 370, on Wednesday announced its support for a new version that was discussed in a state Senate committee later that day.

Previously, the sheriffs’ association opposed the bill because members believed it threatened their operational independence. The association is now satisfied with bill changes that it believes would “protect the 4th Amendment due process rights of the person in custody while providing maximum public safety for the community,” Eddie Caldwell, general counsel for the sheriffs’ group, said in a news release.

The new version states that state law enforcement officials must allow ICE agents to “interview any person in custody of a county jail” or law enforcement confinement facility. The association worried that previous language giving ICE wide-ranging access to inmates and records would’ve gone too far, Caldwell told The News & Observer in a phone interview.

The new version now instructs law enforcement to, upon receiving an ICE detainer request, take the person in custody before a “state judicial official.” That official would then decide whether to allow continued detainment of the inmate.

Committee debate

While the sheriffs’ association praised new parts of the bill, some sheriffs oppose it. Democratic lawmakers say it bullies law enforcement agencies. And human rights groups said it endangers the rights and safety of immigrants, including those in the U.S. legally.

“If sheriffs in every county are forced to become de facto ICE agents, crime victims will be further deterred from reporting a crime,” said Sejal Zota, an impact litigation consultant at ASISTA, an advocacy group for immigrant survivors of violence.

Republican lawmakers said they’re stepping in because sheriffs have refused to uphold their duty to keep North Carolina residents safe.

Rep. Destin Hall, a Caldwell County Republican and a co-sponsor of the bill, spoke at the Senate committee in support of using local resources to enforce federal laws. And most North Carolina sheriffs have no qualms with helping federal agents because most of them comply with ICE detainers, he said.

“You may disagree with those (immigration) laws, but they’re there,” Hall said.

Sen. Terry Van Duyn, a Democrat from Buncombe County, said some sheriffs were elected in 2018 specifically because they promised to cut ties with ICE. While the number of those sheriffs is small, they represent a large number of residents in urban North Carolina areas.

Some sheriffs still opposed

One of those sheriffs is Durham County’s Clarence Birkhead, who spoke out against the bill after the committee meeting.

“I’ve been very clear since being elected in 2018 what my stance is on ICE detainers ... I will not honor them,” Birkhead told reporters while standing in the legislature’s courtyard on Wednesday. “To me, they’re unconstitutional.”

Wake County Sheriff Gerald Baker said Thursday his office will continue not to cooperate, keeping with a campaign pledge from 2018.

“We chose to do what we can to strengthen our communities,” he said in a news conference, “to serve them and persons who reside in our communities. As a result of that, we chose not to participate in that program. We still stand right where we are with that. We haven’t budged. We’re not going to move.”

And in Mecklenburg County, Sheriff McFadden said constituents had voted him into office on his promise to stop honoring detainers. If passed, the bill would override that vote in what he called “a dangerous experiment in playing politics with our public safety.”

“It is a move by the General Assembly to chip away at the Sheriff’s authority over how we operate our jails and instruct our deputies,” ” he said in a statement.

The ACLU, NAACP and El Pueblo, an organization that helps the Latino community, all referred to the legislation as “anti-immigrant.”

Alissa Ellis, an immigrants’ rights strategist for the ACLU of North Carolina, told lawmakers that law enforcement agencies have been successfully sued because they complied with ICE detainers and held people without probable cause. The bill puts sheriffs at risk, she said, because it authorizes detainment for 96 hours — which is twice as long as the typical 48-hour ICE detainer request.

Removal from office?

The ACLU also raised alarm about new language in the bill that says law enforcement officers who don’t comply with ICE detainers “shall be removed from the office” by a superior court judge.





The sheriffs’ association isn’t concerned with that new section, Caldwell told the N&O. The bill doesn’t add a new removal procedure, but merely states that failing to cooperate with ICE would qualify as failing to perform one’s duty — something sheriffs can already be removed for under an existing state law.

The ACLU believes the statute, enacted in 1913, was meant to be used only when officials commit specific kinds of illegal activity, said Mike Meno, a spokesman for the group.





“What’s so extreme about using it here is that it’s always been optional/voluntary for sheriffs to honor ICE detainers, and it still is under federal law,” Meno said. “Now state legislators wants to threaten democratically elected sheriffs with removal from public office because of policy decisions they make in the best interest of their communities.”