ICE Detainer = 4th Amendment Violation: Miranda-Olivares v. Clackamas County

"A federal magistrate judge in Oregon concluded that county officials violated a woman’s Fourth Amendment rights when they kept her in custody solely on the basis of an immigration detainer.  Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, slip op. (D. Or. April 11, 2014) (Stewart, Magistrate Judge).

This case involved a woman who was arrested for violating a restraining order. Though county jail officials did not ask her about her immigration status, they somehow learned that she was born outside the United States. Pursuant to a jail policy, they then notified ICE. The next morning ICE issued an immigration detainer. Id. at 2. As is standard these days, the detainer (Form I-247) asked that jail officials “MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS.” The form added that DHS “had ‘initiated an investigation to determine whether [Miranda-Olivares] is subject to removal from the United States.’” Id. at 3.

The same day that the jail received ICE’s detainer, a judge granted Miranda-Olivares bail. Jails officials, however, repeatedly told Miranda-Olivares and her sister “that she would not be released if she posted bail because of the Jail policy relating to ICE detainers.” Id. at 4. Consequently, Miranda-Olivares did not post bail despite a willingness to do so. Instead, she remained in jail awaiting adjudication of her criminal case. Eventually she pled guilty and was sentenced to 48 hours in jail with credit for time served. Even then, however, she was not released. Due to the immigration detainer, county jail officials kept her confined for an additional 19 hours. Id. at 3-4. She was finally released roughly two weeks after being granted bail.

County officials claimed they had no choice in the matter. Immigration detainers, they argued, are mandatory. Id.5. The court disagreed. Relying in large part on the Third Circuit’s decision in Galarza v. Szalczyk, No. 12-3991, slip op. (3d Cir. March 4, 2014), holding that detainers are merely requests, the court concluded that detainers are not mandatory. To interpret the detainer regulation, 8 C.F.R. § 287.7, as mandatory, the court explained, would come perilously close to violating the Tenth Amendment. As the court put it, “a conclusion that Congress intended detainers as orders for municipalities to enforce a federal regulatory scheme on behalf of INS would raise potential violations of the anti-commandering principle.” Id. at 11. (The court repeatedly references the INS even tough it hasn’t existed since 2003.)

Furthermore, the court concluded that the only reasonable interpretation of the regulation’s text is that detainers are requests. Id. at10. Subsection (a), as the court pointed out, explains that “[t]he detainer is a request” and subsection (d), though it uses the word “shall” does so only with reference to the maximum amount of time that a local law enforcement agency may hold someone pursuant to a detainer (“such an agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays”). Id. at 10 (discussing 8 C.F.R. § 287.7).

Having concluded that detainers are requests, the court added that the county might be liable for any unlawful detention that resulted from its decision to keep Miranda-Olivares confined. Though it rejected her Fourteenth Amendment substantive due process claim and state law false imprisonment claim, it was convinced by Miranda-Olivares’ Fourth Amendment claim.

Miranda-Olivares argued that the county violated her Fourth Amendment right to be free from unreasonable seizure by “refusing to release her during the two weeks when she could have posted bail and by continuing to incarcerate her for 19 hours after her release from the state charges.” Id.15. The court largely agreed. The county was authorized to hold Miranda-Olivares while her criminal proceedings were ongoing, but it was not allowed to go beyond the limits on that confinement. It did so, the court concluded, by failing to abide by the judge’s bail decision and continuing to incarcerate Miranda-Olivares for 19 hours after the conclusion of her criminal sentence. Id. 17-18. Because the county engaged in these “new” Fourth Amendment seizures without probable cause that she was engaged in criminal activity (aside from the restraining order violation), it violated the Fourth Amendment. The mere existence of the detainer, the court explained, was not sufficient basis for the jail to reasonably conclude that it had probable cause to detain Miranda-Olivares. Id. at 19. The court therefore granted summary judgment in Miranda-Olivares’ favor on the Fourth Amendment claim. Potential damages will be decided at a later date.

The court’s analysis closely tracks arguments that my colleague at the University of Denver Christopher Lasch has made about the Fourth and Tenth Amendments. In Federal Immigration Detainers After Arizona v. United States, Lasch noted the probable cause problems inherent in confinement based on an immigration detainer that states little more than that DHS has “initiated an investigation” of an arrestee’s immigration status. 46 Loyola of Los Angeles Law Review 629, 698 (2013). He then explains that any interpretation of the detainer regulation as mandating compliance by local law enforcement officials would clash with the Tenth Amendment’s anti-commandeering principle and the Supreme Court’s leading case on congressional attempts to enlist local police officials to help enforce federal law, Printz v. United States, 521 U.S. 898 (1997). Lasch, supra, at 699-700.

Interestingly, it suggested that the county engaged in false imprisonment under Oregon state tort law, but ultimately concluded that state law immunizes public entities such as the county jail from false imprisonment performed without malice or bad faith. Because here “[t]here is no contention or evidence that the County was acting in bad faith or with malice,” the court granted summary judgment in the county’s favor on this claim. Id. at 20." - César Cuauhtémoc García Hernández, Apr. 17, 2014.