Maine Gov. Paul LePage says he will fire county sheriffs who don’t honor federal requests to hold some inmates beyond their scheduled release, even when immigration authorities haven’t got a warrant.
In a letter to the state’s 16 sheriffs, LePage says the Maine Constitution gives him the right to fire them. But several sheriffs maintain that holding anyone beyond their scheduled release without a warrant risks violating the U.S. Constitution.
In the letter, the governor tells sheriffs that his ultimatum is “for the safety and security of the children, citizens and families of the state of Maine.”
“The goal is not to remove a sheriff, the goal is to have sheriffs comply with the law,” says Julie Rabinowitz, the governor’s spokeswoman.
The governor’s letter comes in response to Cumberland County Sheriff Kevin Joyce’s decision last week to tell told Immigration and Customs Enforcement, or ICE, that he would no longer routinely detain prisoners at his jail beyond their scheduled release dates.
Joyce says ICE detainer requests, if they don’t come with a warrant, may cross the U.S. Constitution’s bar on unreasonable seizure. And Joyce says recent federal court cases showed him that compliance with the detainer requests puts county taxpayers at risk of costly legal damages.
That drew LePage’s threat. But now other Maine sheriffs are coming to Joyce’s defense.
“This is not a question of law enforcement, of local law enforcement not cooperating with the federal government. It’s a question of the federal government not cooperating with law enforcement,” says William King, the sheriff in York County, where he says there’s a man who’s been held on state charges for nearly a year.
The man has not yet gone to trial, but he has come to the attention of ICE. And King says if he pleads guilty and a judge sentences him to time served, there’s going to be a problem.
“I’m going to be faced with this ICE request, and the request is that I hold this person for two more days. And I just don’t understand why the federal government can’t conduct the investigation now and, if the person is illegally in this country they should start deportation proceedings.”
Joyce is also getting some support from Cumberland County commissioners, including Stephen Gorden.
“Why is the governor trying to intimidate a sheriff into a questionable action, when in my mind he should be turning his wrath on the ICE agency for poor performance? I mean that’s just baffling,” he says.
An ICE spokesman said the agency acts within the law, but declined to be recorded.
In his letter, LePage asserts broad authority to remove sheriffs from office who are not “faithfully” executing their duties. And the basis for removal, he says, is an executive order he signed in 2011 that states “employees and officials of the state of Maine shall cooperate with employees and officials of the federal government on all matters pertinent to immigration,” subject to any legal and constitutional limitations.
Supporting his view, LePage cites a federal case, Morales v. Chadbourne, in which the court ruled that ICE must have probable cause to issue detainer requests in the first place. But Zach Heiden of the ACLU of Maine says the governor’s interpretation of that case is wrong.
“Morales v. Chadbourne actually involved somebody who was locked up even though ICE did not have probable cause. So the idea that this is a case that supports the governor’s position is incorrect,” he says. “Morales v. Chadbourne, instead, should be caution to sheriffs in Maine that just because ICE asks you to lock somebody up does not mean there’s probable cause.”
A spokesperson for LePage says before any sheriff could be removed, a quasi-judicial hearing would have to take place — and that the goal is not to remove sheriffs from office but to get them to comply with the governor’s directive.
David Webbert, an Augusta civil rights attorney, says LePage could actually file a complaint against a sheriff on his own behalf to initiate the removal process — but that the complaint would have to include a detailed explanation for the action.
“If I had to guess I would have to say that they probably would allow that because they’re going to leave some breathing room for the governor, but I think it’s going to have to be a complaint that’s not just, ‘I want to get rid of a sheriff that I don’t like,” he says.
John Berry, a lawyer who frequently works with the county sheriffs and is advising Joyce now, says LePage does have a lot of power.
“There’s no question the governor has awesome authority with respect to the office of sheriff. They are constitutional officers and the governor is the ultimate check on a sheriff’s authority,” he says.
Berry says the sheriffs have been meeting to consider their next moves, and to figure out how many of them might actually receive warrantless detainer requests from ICE, which not many appear to get. He says the sheriffs may seek a meeting with the governor to explain their view of recent case law and their duties, including their shared belief that dangerous criminals should not be released into the streets.
“But there’s also this concern that United States citizens are being swept up through this detainer process, and the courts have held that the county officials’ voluntary compliance necessarily equates to their culpability and liability in an unlawful detention,” Berry says.
He says the sheriffs are also trying to work with ICE to devise processes that will ensure criminals are indeed held in jail without putting constitutional protections at risk.
Maine Public reporters Susan Sharon and A.J. Higgins contributed to this story.
