Photo courtesy of ICE

Two weeks after House Republicans filed a bill that would require sheriff’s to cooperate with Immigration and Customs Enforcement, the North Carolina Sheriff’s Association has come out in opposition.

The Sheriff’s Association had been noticeably quiet on the bill as it advanced through House committees. But on Wednesday - just as the bill was heading for debate on the House floor - the association put out a position paper calling the legislation an “an unwise encroachment” on the authority of sheriff’s to run their own jails.

“House Bill 370 would compel duly elected sheriffs to participate in a voluntary federal law enforcement program. The North Carolina Sheriffs’ Association opposes such mandate,” the statement reads. “The people of each county, as reflected by the decision of their elected sheriff, should retain the ability to decide which lawful method they will utilize in complying with existing federal and state law.”

“Just as the Association opposes any state law requirement to participate in the ICE detainer program,” the statement goes on to say, “it would also oppose legislation prohibiting sheriffs from participating in the ICE detainer program.”

House Bill 370 would require sheriff’s to comply with ICE detainers, which are requests from ICE that a local facility continue to hold a person ICE believes may be subject to deportation for up to forty-eight hours after they would have otherwise been released.

ICE detainers are not mandatory. The form itself says the recipient agency is “requested” to hold the subject of the detainer, and/or notify ICE before they are released.

Courts have found that detainers amount to a new arrest requiring probable cause under the Fourth Amendment, and that the administrative – as opposed to judicial – warrants that typically come with them are not sufficient proof that probable cause exists to continue to hold people when they otherwise should have been released.

As such, requiring sheriff’s to comply with detainers could open them up to lawsuits. If the bill passes, residents who suspect their county is not honor detainers could seek an injunction, and courts could impose monetary penalties for not complying.

The bill is sponsored by Representatives Destin Hall, Brenden Jones, Jason Saine and Carson Smith, a former Pender County sheriff. The bill is co-sponsored by state House Speaker Tim Moore.

Sponsors of the bill have said that sheriff’s who don’t honor detainers are putting public safety at risk. The bill comes after some of North Carolina’s largest counties elected new sheriff’s pledging to reverse their predecessor’s policies on cooperating with ICE, either by not honoring detainers without a judicial warrant, or by ceasing participating in the 287(g) program, which deputizes local officers to carry out some immigration enforcement duties.

“The Association supports cooperation between sheriffs and all local, state and federal law enforcement agencies. However, it is an unwise encroachment on the lawful responsibility of the sheriff, who serves as the “keeper of the jail,“ to mandate how this cooperation should occur,” the Sheriff’s Association says. “Additionally, allowing for a ‘private enforcement’ court action is unwise and would likely instill a ‘chilling effect’ on sheriffs when deciding how to best carry out the duties of their office.”

“Therefore,” the statement continues, “the North Carolina Sheriffs’ Association urges the General Assembly to not enact Edition 1 of House Bill 370, Require Sheriff Cooperation with ICE, and to work with us cooperatively to craft a mutually acceptable solution to address this very important issue.”

Update: HB 370 passed the House Wednesday evening 63-51. It heads to the Senate.