Supreme Court hears immigration enforcement claims (287g)

June 14, 2012

Supreme Court hears immigration enforcement claims

Travis Loller

The state Supreme Court is deciding whether a federal program that lets some Davidson County sheriff's deputies act as immigration agents violates the Metropolitan Charter.

In court on Thursday, attorney Bill Harbison argued the charter reserves all law enforcement duties for the police while the sheriff's office is confined to running the jail and serving warrants.

That separation of powers was put in place in 1962 when Nashville and Davidson County combined to form a metropolitan government.

Assistant Metro Attorney Keli Oliver argued that interviewing detainees to determine their immigration status was permissible under the powers granted to the sheriff's office because it pertains to managing the jail.

The Supreme Court was asked by a federal judge to decide the question, which is at the heart of a federal suit challenging the program.

Opponents of the federal program, known as 287(g), believe it unfairly targets for deportation people who commit minor infractions such as traffic violations. Supporters say the program helps the federal government identify law-breakers.

But the question before the court is a technical one of whether the contract between the sheriff's office and U.S. Immigration and Customs Enforcement, or ICE, is legal.

Harbinson urged the justices to consider a 1964 case in which the court found the sheriff's office could only perform the duties assigned in the charter and other duties that were "incidental and necessary" to its primary duties. That does not include law enforcement.

"If a deputy is serving a warrant and sees illegal activity they don't arrest someone, they call the police," he said.

Harbison argued that the 287(g) program was not incidental and necessary to running the jail because the jail operated for 45 years without it. And he suggested that approving this agreement could open the door to other types of agreements, such as allowing deputies to investigate inmates for the Internal Revenue Service.

He also suggested that Sheriff Daron Hall might have entered into the agreement with ICE for political purposes. Metro Police, the body charged with law enforcement, "has not chosen to enter into 287(g)," he said. "An elected official has chosen to do so."

Metro attorney Oliver argued the charter was not as restrictive as plaintiffs claim.

"The charter doesn't say the sheriff's office can never be involved in law enforcement, and it's silent as to the enforcement of federal law," she said.

She also said the charter gives the Metro Council the power to determine things that are not explicit in the document. That is what happened when council voted to approve the memorandum of agreement between the sheriff's office and ICE, she argued.

Justice William Koch Jr. suggested that the sheriff might have a legitimate interest in determining inmates' immigration status that was related to running the jail.

"Certainly the persons in the jail, the number of persons, the capacity within the jail is within the sheriff's interest," he said. "So wouldn't it be in his interest to identify people who could be removed to federal custody?"

But Justice Cornelia Clark questioned whether removing detainees would interfere with the Metro Police by preventing prosecution on local charges.

U.S. Attorney Matthew Curley, representing ICE, argued in favor of the agreement.

Curley said that immigrants who are in the U.S. without permission are committing an ongoing violation of federal law. He likened that to someone committing a criminal offense while in jail, which the sheriff's office has a duty to investigate.

"Where is the line?" he said. "The plaintiffs tout a slippery slope. I think it's more disconcerting to say the sheriff's office can investigate these types of criminal violations in jail, but not others."

Plaintiffs are suing in federal court for an injunction barring the sheriff's office from participating in 287(g). The federal court will be guided by the Supreme Court's decision on the charter question.

RealClearPolitics - Politics - Jun 14, 2012 - Supreme Court hears immigration enforcement claims