Clarke Could Face Constitutional Claim
Oregon court decision suggests Sheriff is wrongly detaining immigrants.
Milwaukee County could face liability on constitutional claims related to Sheriff David Clarke‘s participation in a federal program that places immigrants in detention.
A federal judge in Oregon has ruled that a request from the federal Immigration and Customs Enforcement (ICE) does not constitute a reasonable cause to incarcerate a person. A detention without probable cause violates the Fourth Amendment to the Constitution, the judge ruled. While not binding on Wisconsin, the Oregon decision clearly lays out the danger in accommodating detention when there is little or no evidence of criminal activity.
The extra-long incarceration is limited to 48 hours, but Saturdays, Sundays, and holidays don’t count, according to the Oregon Federal Court decision in Miaria Miranda Olivares v Clackamas County. That means the actual extra incarceration could be much longer than 48 hours in many instances.
Asked if the ruling meant the state now has a secret detention program, attorney Peter Earle responded, “I think so.” Earl, who represented Voces de la Frontera, said “this would not be an alarming case if these were normal times,” referring to recent ICE roundups of immigrants.
A constitutional claim like the one in Oregon is possible, Earle said, if defendants caught up in the program can be identified. There is a concern, he said, that people will just get lost in the system.
Earle said the inmates held under the federal program are accused of state and local offenses, not federal crimes. The federal government also does not compensate the county for the costs it incurs holding the inmates for ICE.
In Oregon, Miranda-Olivares was arrested for violating a domestic violence restraining order and booked into the the Clackamas County Jail on March 14, 2012, according to the decision by U.S. Magistrate Judge Janice M. Stewart.
“The County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention.” – U.S. Magistrate Judge Janice M. Stewart
The jail the next morning received the federal request to hold Miranda-Olivares.
Miranda-Olivares was charged with two counts of contempt of court and a judge set bail at $5,000. Under normal circumstances, she could post $500 cash and be freed. In this case, though, there was that ICE detainer.
Jail officials, over the next two weeks, told Miranda-Olivares’ sister repeatedly that Miranda-Olivares would not be released even if the bail was posted because of that document.
Miranda-Olivares eventually pleaded guilty to one charge and was sentenced to 48 hours in jail, with credit for time served. She was held for an extra 19 hours, however, because of the ICE detainer.
In her decision, Judge Stewart noted that complying with an ICE detainer request is voluntary, not mandatory.
ICE, however, did not show probably cause to hold Miranda-Olivares, Stewart said.
“It stated only that an investigation ‘has been initiated’ to determine whether she was subject to removal from the United States,” she wrote.
“There is no genuine dispute of material fact that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention,” Stewart wrote.
The county, Stewart said, “violated Miranda-Olivares’s Fourth Amendment rights by detaining her without probable cause both after she was eligible for pre-trial release upon posting bail and after her release from state charges.”
Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operati