Local Jurisdictions Have no Obligation to Act as Federal Immigrant Enforcement

The ACLU of South Dakota sent a letter to all South Dakota sheriffs and chiefs of police, outlining the dangers of complying with President Trump's immigration policy demands. Local law enforcement is not obligated under federal law to participate in immigration enforcement, and could face potential legal liability for doing so.

The Trump Administration has threatened to strip federal funds from jurisdictions that decline to direct local personnel and resources toward federal immigration priorities. However, prior court decisions indicate that the Administration will encounter substantial hurdles if it attempts to follow through on that pledge.

In particular, we have raised concerns over local law enforcement’s compliance with Immigration and Customs Enforcement (ICE) detainers, or written requests that local law enforcement detain an individual for an additional 48 hours after they would otherwise be released. ICE detainers are typically issued without a judicial warrant supported by probable cause. As a result, once the traditional basis for criminal detention of an individual has lapsed, continued detention violates the Fourth Amendment's bar on unlawful detentions. Hundreds of detainers have been placed on people not subject to removal, including U.S. citizens. Federal courts around the nation have held ICE and local law enforcement agencies liable for unconstitutional detentions under ICE detainers.

Also of concern is local law enforcement’s participation in the 287(g) program, under which police officers perform federal immigration enforcement functions – including interrogating and arresting suspected noncitizens encountered in the field who they believe may be subject to deportation. This policy encourages officers to racially profile people on the streets and guess at their immigration status based on appearance or accent. It effectively transforms local police into federal immigration agents – but without the federal funds to cover all of the expenses incurred by the local jurisdiction, and without proper training and oversight that federal agents receive.

Participation in these programs undermines community safety and security because it diverts scarce resources from law enforcement’s primary responsibility of providing protection and public safety. It impedes law enforcement's ability to prioritize local needs like responding to emergencies and it disrupts the trust and cooperation of community members that is essential in investigating criminal activity. Public safety is undermined when victims or witnesses of a crime – including domestic violence – are afraid to call police. Additionally, participation in the programs costs local jurisdictions millions in expenses that are not reimbursed by the federal government, while exposing local jurisdictions to liability for constitutional violations.

Download a PDF copy of the letter and model policies below.

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