County council forwards request for information on local ICE policies to Monroe County’s sheriff

The Immigration Justice Task Force (IJTF), a self-organized group that counts members from area religious and non-profit organizations, addressed the Monroe County council at its regular monthly meeting on Tuesday.

Those who took the public podium on Tuesday called on the county council to help support their requests for information from Monroe County’s sheriff, Brad Swain, about specific connections between the sheriff’s office and the U.S. Immigration and Customs Enforcement (ICE).

That’s something the councilors agreed to do, telling their attorney, Margie Rice, they wanted the information requests forwarded from them to the sheriff.

There’s also a chance that some kind of resolution or proclamation could be developed to express the county council’s view, even if it’s not binding on the sheriff.

In the councilors, IJTF found a group that appeared mostly supportive of their view that the county sheriff should not be helping ICE to identify and apprehend people who are suspected of a possible civil infraction. That’s the category of legal violation to which immigration violations belong, Christie Popp, a local immigration attorney with IJTF, told the council.

A salient point made by councilors and legal staff at Tuesday’s meeting was one also mentioned by Swain in emailed correspondence to The Square Beacon last week. The sheriff is an independent elected official, the peer of any other elected, Swain said, which means the county council has no legal authority to oversee the sheriff.

Councilor Marty Hawk, the lone Republican serving on the seven-member county council, cautioned IJTF about having any expectations—because the county council has no authority over the sheriff. “We don’t have authority to do anything but listen to your concern,” she said, adding, “We’re the fiscal body.”

Swain, like six of the seven county councilors, is a Democrat.

Councilor Geoff McKim offered a counterpoint of sorts to Hawk, pointing out that the council could request information from the sheriff. So that’s what the council did on Tuesday, after confirming with their attorney, Margie Rice, that she could forward immediately a list of seven enumerated information requests from IJTF to the sheriff.

In addition to support for their information requests, the IJTF asked the council to not honor ICE detainers (holds) unless ICE presents the sheriff with a judicially signed warrant. Holding someone without such a signed warrant is a violation of the 4th Amendment of the US Constitution, Popp told the county council.

In a comment she left on a July 15, 2019 post made by the Facebook page of the Monroe County sheriff’s office, Popp wrote:

The Sheriff may only call ICE on what he deems are serious crimes, but he will honor the detainer on anyone. This is how my client with a BAC of .06 was arrested and put into deportation, despite the fact that he came here as a teenager and lived here for decades, raising his family. This is how another client whose wife called during a domestic dispute had a hold and was quickly deported because he had entered from Europe on a visa waiver and did not have the right to go before a judge to fight deportation. I’ve had clients arrested with charges dismissed because it was a case of mistaken identity. I don’t think that people who commit crimes should go free. I think they should serve their time. But I don’t think a DUI should result in permanent exile from your family. That is what is happening.

Swain says it’s only serious crimes that trigger ICE holds. In his emailed message to The Square Beacon, Swain said there’s not an official stat kept on ICE detentions. He estimated that last year there were five or fewer.

One of the seven enumerated information requests made by IJTF at Tuesday’s meeting is:

(2) How many times has the Monroe County Sheriff Brad Swain or any of his deputies contacted ICE to notify them of an “alien” or other individual in its custody?

Rice drew the distinction between a request for information and a request for records. Indiana’s open records law requires a public agency to produce written records if they exist, but does not require a public agency to create a record containing a specific kind of information, just because the information is requested.

If records containing such information are not being kept, the IJTF wants to know why. That’s part of the concluding paragraph of the information request.

One of the questions IJTF has is the exact kind of alleged violation prompts the sheriff to contact ICE about a possible immigration violation by someone in the sheriff’s custody. The kind of alleged violation prompting a call to ICE was described by Swain to The Square Beacon this way: “The ‘threshold’ is pretty much what a person of sound mind would agree was worthy of a notification—in short ‘Would I want a person who committed X in my neighborhood?'”

The written policy forwarded by Swain to The Square Beacon includes a several violent crimes and drug offenses as infractions that, if someone where charged with one, could be used to justify contacting ICE under the policy.

The sheriff’s written policy includes a bit of common ground between himself and IJTF in that it recites how any decision to cooperate with ICE is discretionary:

Local law enforcement agencies can make their own decision about
whether to fulfill an individual ICE immigration detainer. Under principles
of federalism, neither Congress nor the federal executive branch can
require state or local officials to carry out federal programs at their own
expense. If such detainers were mandatory, forced compliance would
constitute the type of commandeering of local state resources forbidden by
the Tenth Amendment.

Swain acknowledged to The Square Beacon that last month a corrections staff member had, on their own initiative, contacted ICE. He described how someone was arrested for domestic battery. That’s a crime below the threshold for ICE notification, Swain said. A corrections deputy learned from that the man charged with domestic battery had been deported in the past, and the deputy informed ICE that person who’d been deported in the past was at Monroe County’s jail. “ICE wanted him, and took him into custody,” Swain said.

Procedurally, that’s not how Swain wants things to unfold. “I advised the jail commander that staff should be directed that any exemption to the policy would be made by me, and not to take such self-initiatives,” Swain said. He added, “I likely would have directed that ICE be notified, however.”

Swain also said he always has the option of changing the written policy and notify ICE “for every foreign national that is brought to jail, rather than dispute semantics…”

One of the issues backdropping the IJTF’s visit to the county council is an information request filed by IJTF member Cathi Crabtree. Among other records, she’s asked for a copy of Swain’s “agreement with ICE” that is mentioned in a handwritten note she told the county council she received from Swain.

Based on back-and-forth between councilors, Crabtree and comments from county attorney Margie Rice, the county’s legal staff is working with Indiana’s Public Access Counselor to document the county’s compliance with the request.

Also serving as a backdrop to the IJTF’s address of the county council is a federal lawsuit filed last year by Popp against Swain for allegedly hiding some of the comments she wrote on the Monroe County sheriff’s office Facebook page. [Complaint] [Answer] [FB Exhibit]

The Square Beacon was able to confirm that the Facebook comment by Popp quoted earlier, and others, are currently visible to Facebook visitors.

The lawsuit looks like it could wrap up with a jointly proposed declaratory judgment, which does not try to judge the facts of the case, but at least sets forth the First Amendment rules of engagement for Facebook posts. From the jointly proposed judgement, which has not yet been approved by the judge:

(c) Engaging in viewpoint discrimination in this forum, including by “hiding” or “deleting” user comments or “blocking” users, violates the First Amendment to the United States Constitution.

Councilor Kate Wiltz mentioned during Tuesday’s meeting the possibility of the county council’s adoption of some kind of resolution on ICE policies. After the meeting, she told The Square Beacon that she would only pursue it, if there was support on the rest of the council. She thought she saw some nods when she mentioned it during the meeting.

If Wiltz pursues such a resolution, she’ll work with county attorney Margie Rice to put the wording together, she said.

2 thoughts on “County council forwards request for information on local ICE policies to Monroe County’s sheriff

  1. Thank you for this informative, well-researched article, complete with photos of democracy in action, uncomfortable though it may be at times! And giving ample food for thought. Should the County Council as the fiscal oversight body be setting aside taxpayers’ funds to be used to settle the inevitable lawsuits about 4th Amendment violations when ICE holds are applied in Monroe County? Should the Sheriff be using taxpayers’ funds to pay for the holding of individuals for possible pickup by ICE beyond when these people are released by the court — food, shelter, employee salaries, any medical care if needed, and whatever else? Where are the records so taxpayers can understand the direct financial costs of these policies? And fundamentally, why are some people treated as less than other people when they are detained by law enforcement? Do these policies make our community safer?

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