The North Carolina Sheriffs’ Association has backed down from its opposition of House Bill 370, an anti-immigration measure drummed up by Republican legislators who are using the Trump administration’s rhetoric to try and force law enforcement into working with U.S. Immigration and Customs Enforcement (ICE).
A Senate Rules committee heard an updated version of HB 370 yesterday but did not vote on the measure. It was referred to the Senate Judiciary committee, and if it gets through there, it will be re-referred to Senate Rules.
Changes to the bill were made after some lawmakers agreed to work with the Sheriffs’ Association and they crafted an alternative to the initial proposal, which would have punished law enforcement that didn’t honor ICE detainer requests with a hefty fine.
An ICE detainer is a request for local law enforcement to hold individuals they believe are not lawful citizens in jail or prison for up to 48 hours until the federal agency can take custody and begin deportation proceedings. The individuals targeted by detainer requests are typically otherwise eligible for release from jail or prison.
The detainer requests are not judicial orders signed by any court official, and they are not arrest warrants that require any kind of finding of probable cause. Because they are requests, local law enforcement can choose whether to enforce them or not, and most urban areas across the state have chosen to only work with ICE as much as the law requires (which means not volunteering to honor those requests or any others from the federal agency).
The Sheriffs’ Association initially opposed HB 370, in part, because it infringed on the constitutional right of sheriffs to make law enforcement decisions for the communities who elected them.
A memo about the new version of the measure states that it “is designed to protect the 4th Amendment due process rights of the person in custody while providing maximum public safety for the community.”
The new version of HB 370 extends the time a person can be held when an ICE detainer is in place from 48 hours to 96. It also removes some liability from sheriffs and law enforcement officials across the state who honor ICE detainers and instead makes judicial officials in charge of whether a person will be ordered to be held in custody. Though the way the law is written, there is no room for discretion — those officials have to order someone to be held in custody if their identity matches the ICE detainer request.
Instead of facing a fine, the new version of the measure would allow for law enforcement officials to be removed from office by a superior court judge if they fail to comply with HB 370.
The Sheriffs’ Association memo doesn’t address that portion of the bill. It does state though that the 96-hour time period in the bill reflects the realities of law enforcement operations. It also states that its formal position on the new version of the bill is that it “provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities.”
Not all sheriffs agree with that position. Several remain opposed to the bill and remain concerned about the public safety implications of forcing law enforcement to work with ICE, and in some cases, do their jobs for them.
A couple sheriffs who oppose the bill spoke out at yesterday’s Senate hearing. Others have shown their disapproval through other avenues.
This week Guilford County Sheriff Danny Rogers withdrew his support for the Association’s proposal. He said a legal review of the policy left his department with constitutional concerns.
The move won Rogers praise from immigrant groups and advocates. It also got him plaudits from an unexpected source: BJ Barnes, the long-time Guilford sheriff he defeated in November.
The two men have had few kind words for each other since election day, sparring in the media and making cross-accusations on social media.
But in a Wednesday Facebook post, Barnes, once one of the most popular Republican sheriffs in the state, explained why he too opposes both the proposed bills and the Sheriffs’ Association’s alternative proposal.
“Before anyone starts thinking I’ve gone soft on illegal immigrants who have entered this country illegally and stayed, that IS NOT the case,” he wrote. “What I am and what the attorneys are is VERY STRONG on the Constitution, specifically the Fourth Amendment. A few of you in prior post have said the Constitution does not apply to those here illegally, that is not the case. It is applicable to everyone on American soil, no matter how they got here.
“Now the legislation proposed is the same as the rulings put out by ICE that says the Sheriffs office who holds prisoners longer than law allows without proper judicial paperwork, ie warrant will be immune from civil liability meaning you the taxpayer gets sued. It has already happened across the country and others have lost millions. They, being legislators or ICE, cannot protect a county from a lawsuit if they break the law.”
Barnes went on to disparage congressional Democrats for not helping resolve immigration issues on a federal level. He also — in his signature sly, combative style — congratulated Rogers on taking his advice.
But the olive branch was the first since Rogers was one of a wave of black, Democratic sheriffs to sweep seven of the state’s largest counties in the last election, displacing some of the state’s most prominent white Republican sheriffs. Rogers was one of five sheriffs in that sweep to become his county’s first ever black sheriff.
It was that sweep — and those sheriffs subsequent unwillingness to voluntarily work with ICE — that precipitated the initial HB 370 proposal.
The ACLU of North Carolina remains opposed to the new version of the bill. It pointed out in a recent news release that it is stripped of limited protections for witnesses and crime victims.
“This is still an extreme anti-immigrant bill that will tear apart families, spread fear across communities, and harm public safety,” said Stefania Arteaga, ACLU of NC Statewide Immigrants’ Rights Organizer. “North Carolina’s towns and counties shouldn’t be forced to spend their limited resources on helping the Trump administration’s deportation force carry out its anti-immigrant agenda. Legislators should reject this bill, and if it reaches his desk, Governor [Roy] Cooper should stand up for local law enforcement and all community members by issuing a swift veto.”
In addition to the ACLU, numerous other immigrant, faith and civil rights groups urged lawmakers to reject HB 370.
In a letter, they wrote that North Carolina has become an epicenter for immigration raids and enforcement. Since the Trump Administration took office, it has experienced a 460 percent surge in ICE arrests, leading to thousands of detentions and deportations, according to information from the Migration Policy Institute.
“Our local officials should not be collaborating with such a morally wrong and rogue agency,” the letter states. “This is why HB 370 would be so devastating if it became law. The bill would enlist the sheriffs of every county into Trump’s deportation force. It turns any police interaction into an immigration status check and cause of deportation.”
And the new version of the bill, the letter adds, is only more harsh.
“With sheriff deputies forced to work for ICE, HB 370 would dramatically increase detentions and deportations, causing long-term damage to North Carolina families and communities,” the letter states.
Joe Killian of NC Policy Watch contributed to this report.