Milwaukee County could face liability on constitutional claims related to Sheriff David Clarke's participation in a federal detention program the State Supreme Court last week shrouded in secrecy.
A federal judge in Oregon already has ruled that a request from Immigration and Customs Enforcement is not reasonable cause to incarcerate a person. While not binding on Wisconsin, the Oregon decision clearly lays out the danger in accommodating detention that include little or no evidence of criminal activity.
The Wisconsin Supreme Court ruled, 4-2, last week in favor of Clarke's contention that he can keep secret records related to inmates who remain incarcerated beyond their normal release point at the request of Immigration and Customs Enforcement.
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. (See decision at the end of this post.)
Asked if the ruling meant the state now has a secret detention program, attorney Peter Earle responded, "I think so."
"This would not be an alarming case at the level I'm alarmed if these were normal times," he said, referring to recent ICE roundups of immigrants..
Earl represented Voces de la Frontera, an immigrants rights group that sought access to ICE forms called I-247s that ask local law enforcement to honor the extra-long detention for specified inmates ICE believes may be in the country illegally.
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.
"Miranda-Olivares was not charged with a federal crime and was not subject to a warrant for arrest or order of removal or deportation by ICE," Stewart wrote. "The County admits that Miranda-Olivares was held past the time she could have posted bail and after her state charges were resolved based exclusively on the ICE detainer."
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 is executive director of the Wisconsin Justice Initiative.
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