Okaloosa County
Sheriff’s Office
Charles W. Morris,
Sheriff
Position
Paper on Immigration Enforcement
July 13, 2007
Local Sheriffs Form Task Force
Congressman Miller Requests ICE Assistance in Okaloosa
County
OCSO IMMIGRATION ACTION
OUTLINE
The Okaloosa County Sheriff’s
Office has an obligation to inform the public about its activities regarding illegal
immigration. Our policy of not
conducting “round-ups” has, it appears, caused some to believe we are doing
nothing about the issue. On the
contrary, the Okaloosa County Sheriff’s Office has been very active in
immigration enforcement to the extent the law allows. Here are some examples of our activities.
1. We hosted two region-wide
training events to train law enforcement personnel on identification and
investigation of international street gangs, such as MS-13.
2. We hosted two region-wide
training classes on recognition and investigation of human trafficking, and
hosted the statewide conference on human trafficking.
3. We have conducted several
internal training sessions on domestic security topics, including false
identification.
4. In June of last year we
distributed internal bulletins advising deputies of their authority to question
persons on their immigration status and how to report them to immigration
officials for follow-up.
5. Sheriff’s Office
investigations led to identification and arrest of 15 illegal alien gang
members (MS-13 and Mexican Mafia) members, who were transferred to federal
custody for detention and deportation processing.
6. A Sheriff’s Office
investigation resulted in the arrest of an illegal alien who was on terrorist
watch list. This person was transferred
to federal custody for detention and deportation processing.
7. Sheriff’s Office
investigations have led to major international or multi-state federal
investigations of visa and immigration-related crimes.
8. During the period August
2003 to August 2007, we filed 537 intelligence reports with federal
authorities, concerning organized alien smuggling, harboring illegals for
financial gain, immigration fraud, and human trafficking.
9. Sheriff’s Office investigations
led to federal prosecution and/or deportation processing of over 51 illegal
aliens for re-entry after deportation and use of false immigration documents.
10. Over 500 illegal aliens
were arrested in the last 12 months on various state charges. These were reported to immigration for
follow-up.
11. The Sheriff’s Office
purchased and distributed booklets on identification of US and international
identification cards.
12. Sheriff’s Office investigations
have led to arrests and federal prosecution of illegal aliens operating or
involved in narcotics trafficking rings.
Sheriff Morris is a member of
the Florida Domestic Security Oversight Council and is Co-Chair of the
Northwest Florida Domestic Security Task Force.
Additionally, he is on the Legislative Committee of the Florida
Sheriff’s Association. His
participation in these activities provides
For example, both the
Domestic Security Oversight Council and the Florida Sheriff’s Association have
taken positions on the need for increased immigration enforcement and have made
these positions known to our state and federal elected officials.
The Okaloosa County Sheriff’s
Office is committed to working with our federal colleagues to assist them in
carrying out the federal responsibility of immigration enforcement. Our methods must conform to the law and constitutional
principles, for this is the only way to help ensure criminal aliens are
successfully prosecuted.
SUMMARY
Recent news
articles describing “Round-Ups” of illegal aliens in a neighboring county have
resulted in calls for the Okaloosa County Sheriff’s Office to use the same
tactics as reported. The Sheriff of that
county has issued a statement saying the reports are inaccurate, but it is
those reports that have fueled demands for us to use the tactics
described. This position paper seeks to
explain our enforcement polices and why we will not use the tactics described in the news reports.
The
Okaloosa County Sheriff’s Office is committed to the rule of law and upholding
constitutional principles. Basic tenets of the US Constitution and
previous rulings by the Supreme Court prevent us from conducting operations
described in the reports. Contrary to popular belief, so-called “Illegal
Aliens” have the same civil rights as any American. This is a matter of law and
is beyond debate.
As partial evidence of the civil
rights protection for aliens, the 14th Amendment contains the following clause:
“No State shall …. deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.”
Note use of
the word “person,” not citizen.
The rules
that prevent us from “rounding up” unauthorized aliens are the same rules that
protect you and every other American from unwarranted search and seizure,
unlawful detentions, and the “knock in the night” on your front door.
We cannot
solve the problems of illegal immigration with simplistic, “feel-good”
responses.
The mere
unauthorized presence in the
Local law
enforcement in
State and
local law enforcement officers have no
legal authority to arrest people for the civil violation of being in the
The Federal
Government has not posted any ICE agents in
The
Okaloosa County Sheriff’s Office has a strong partnership with state and
federal law enforcement agencies, and will continue to support them in all
matters consistent with the law. We
believe that a coordinated local-state-federal law enforcement response is the
most effective way to deal with these issues.
LEGAL BACKGROUND
The
Immigration and Nationality Act, or “INA,” (8 U.S.C. 1101) contains both criminal and civil enforcement measures.
The authority for local law enforcement to enforce immigration laws is
limited to the criminal provisions,
such as when there is a criminal warrant for the arrest of an immigration
absconder or a deported alien who has re-entered the
In 2003 and
2005, members of Congress introduced legislation to extend this authority to
local law enforcement, but these attempts have been unsuccessful.[3]
Under
current law, the role of local police in enforcing immigration law is limited
to:
1. Questioning a person who has been
legally detained on state matters to determine their immigration status.
2. Running database queries through the
ICE Law Enforcement Support Center(LESC)
3. Detaining a suspected unauthorized
alien on-scene for a reasonable amount of time if ICE agents
will respond to take them into custody.
4. Arresting unauthorized aliens when
there is a criminal warrant for
immigration violations.
5. Conducting joint investigations and
providing intelligence on criminal violations of immigration law.
Simply
because a person is not authorized to be here does not make them “deportable.”
Immigration laws and regulations are very complex, and local patrol officers
simply do not have the time or resources to properly determine a person’s
status as deportable or not deportable during routine law enforcement
contacts. Making mistakes about a
person’s status can be very expensive.
In 1994 the Katy, Texas Police
Department participated in an immigration raid with federal agents. Local
police detained 80 individuals who were later determined to be in the
In many
cases, it can take hours or days to properly determine if a person can be
arrested for an immigration violation.
Detaining a person beyond the time needed by local police to complete
state-authorized inquiries, and solely designed to aid in enforcement of
federal civil immigration laws, has been viewed by court precedent to be
unlawful.[5]
Here are
two recent examples where the initial checks showed people were subject to
civil immigration arrest, but information obtained days later showed they were
NOT subject to arrest.
Case One: A suspect in a criminal investigation was
determined to have overstayed their visa by several years. We learned that the
Case Two: There were initial indications that two
suspects had valid visa extensions. When
we attempted to verify this through two different federal visa and immigration
databases, the records showed the suspects did not have approved
extensions. A week later, after checking
with still another federal agency, we received confirmation the suspects did
have valid extensions.
According
to current case law, local police authorities may enforce the criminal
provisions of the INA if state law specifically permits them to do so but are
precluded from directly enforcing the INA’s civil provisions.[6] [7]
Florida
State Statutes Section 901.15 When arrest by officer without warrant is
lawful, contains no provisions to
arrest for violations of civil immigration law.
In 2002 the State of
First, this statute may not even be
enforceable. After consultation with legal
experts, we learned there is a
strong possibility this statute conflicts with the Supremacy Clause of the
Constitution. Specifically, the Supreme Court has said:
“The
Federal Government has broad constitutional powers in determining what aliens
shall be admitted to the United States, the period they may remain, regulation
of their conduct before naturalization, and the terms and conditions of their
naturalization. Under the Constitution the states are granted no such powers;
they can neither add to nor take from the conditions lawfully imposed by Congress...[8]”
The
The Federal law also requires 3-day
notice to employers before an inspection of employee verification unless a
warrant has been obtained for a no-notice
inspection.9
Even if it is eventually decided the
it is difficult to enforce. There
are many plausible defenses. The problem lies in proving the employer knowingly
hired an illegal. There is no comprehensive system for employers to verify a
persons’ legal status, especially if the employee used false identification.
Further, the federal rules require an employer:
“Examine the document(s) and, if
they reasonably appear on their face to be
genuine and to relate to the person
presenting them, you must accept them. To
do otherwise could be an unfair
immigration-related employment practice.”[9]
The
Social Security Administration’s web site for employer verification warns the
user not to exclude a person from a job if the number does not verify on the
site. The reply to a query does not
provide a name match or immigration status – it only states the number is valid
or not. The web site further warns the
employer that using the data to refuse employment could subject them to legal
penalties.
Some have suggested that law
enforcement should go to work sites and check the validity of immigrant worker’s
identification. First, we have no right to “demand your papers” in
Second, if you stand on the sidewalk
and look at a work site, how do you know which workers are illegals? If you
answer, “They look like Mexicans,” then the answer is wrong. Should we require
the Hispanic veteran who works in construction to prove he is in the
In
many cases we found that local contractors were not actually hiring the illegal
workers directly, but were using out-of-state labor companies. The records necessary to prove a case against
the employer were beyond our reach.
These labor companies often have hundreds of employees spread over many
states. In such cases, the only way to
attack the problem is to work with our federal counterparts.
A
$500 fine is not an effective deterrent when the employer is running a
multi-million dollar construction operation.
Writing a citation only lets the employer know you are “on to him” and
warns him to develop a better way to hide his culpability. We believe it is more effective to develop
information on the networks that provide illegal workers and to work with
federal authorities to interdict these operations.
The
Okaloosa County Sheriff’s Office has investigated cases where we believe
employers have smuggled and harbored unauthorized aliens, and we reported those
cases to federal authorities. Experience
shows, however, that it can take months or years of investigation to make a
solid case for federal court.
CIVIL
RIGHTS ISSUES
Statutes and court rulings require “Reasonable Suspicion” of a crime
before an officer can detain and question a person. The authority to
temporarily detain a person is based on the officer’s authority to eventually
arrest that person if, during the detention, the officer develops “Probable
Cause” to make the arrest.
Since a local officer in
The tactics described in news articles discuss methods where police
action is clearly intended to cause people to run at the sight of police. The officers then reportedly chase and detain
them for identification checks. If the
suspects run through private property, the officers arrest them for trespassing.
There have been numerous court cases discussing detention of suspects
because they ran at the sight of police.
The courts have ruled that absent other specific facts indicating the
person was committing a crime, the police may not detain (tackle) a person simply because they ran when they saw
the police[10]. For example, a person who runs and then
throws away an object that appears to be a drug container has shown behavior
indicating a crime.
A person who simply runs when the police come around the corner has not shown any behavior indicating they
have committed a crime. “Running While
Mexican” is no more a reason to chase and tackle somebody than “Running While
Black” or “Running While Jewish.”
Chasing people simply because they “look Mexican” is a clear civil rights
violation. Since we know there are many
Israeli nationals in
The analogy makes these points:
First, assuming all Israelis go to synagogues is as invalid as assuming
all Hispanics at construction sites are illegal -- many are American-born or
are here on work visas. Second, it is
never correct to target an entire class or group based on the status or conduct
of individuals.
When the original “Stop and Detain” violates court rulings, any arrest
for criminal charges (such as finding a false ID during the search) that
results from the stop is unlawful. Even
if a prosecutor filed on such a case, any defense attorney who passes the bar
could get such an arrest thrown out of court.
When police actions are intended to cause a person to break the law, and
when there is no evidence of the person’s prior intent, it is entrapment. If we followed the example described in the
news, a deputy could swerve his car onto the sidewalk just to make you jump
into the street, and then cite you for jaywalking.
The only agency that can legally determine a person’s legal status is
Immigration and Customs Enforcement (ICE).
To check a person’s status, local police must run a computer query
through the LESC. If the person has
never been encountered by Immigration (for example, if they successfully
sneaked across the border), the computer reply will be “No Record Found.” Of course, people born in the
Status checks are further complicated by the pervasive use of
authentic-looking false documents. If
the false identification uses the name of a person here legally, then the
officer would have no way to know the person is illegal. Even when we arrest suspects on state
charges, the national automated fingerprint system does not check the
immigration fingerprint database, which is separate from the criminal database.
When we do receive a name reply, it will usually say the person “may” be
in the
RESOURCE
ISSUES
Setting priorities is a crucial tenet of management. Neither the Sheriff’s Office nor ICE has the
necessary resources to end illegal immigration in the region. Therefore, we must make dangerous aliens our first priority. These include gang members, organized crime,
and those who traffic in guns, drugs, and humans.
The Okaloosa County Sheriff’s Office has less than 300 full-time
deputies. In 2006 those deputies
responded to 177,000 calls for service, or 485 per day, 20 calls per hour.
Before we can determine a person’s status, we must make a computer query
to the
In the time it takes to get an ambiguous answer on one suspected alien,
we received 10 other calls for service for domestic violence, burglaries, drunk
drivers, etc.
Even ICE agents cannot arrest a person for civil immigration violations
unless there is space in an immigration detention center. The nearest facility is the Wakulla County
Jail, where the county contracts with ICE to hold civil detainees. Unfortunately, there are only 28 beds
available for that purpose.
Even if
CONCLUSION
The Florida Sheriff’s Association (FSA) established a committee to study
immigration issues. That committee, with
Sheriff Don Hunter as chairman, issued a set of formal policy
recommendations. The Okaloosa County
Sheriff’s Office supports the FSA’s Policy Recommendations on Illegal
Immigration, and we continue to urge legislators at appropriate levels to act
on these recommendations.
We will continue to work closely with our federal law enforcement
partners to build prosecutable cases against priority offenders. We will continue to press the Federal
Government to station ICE agents in
Law enforcement draws authority for arrest powers from statutes and court
rulings. We cannot choose to ignore
court rulings, nor can we make up authority the statutes do not give. Emotional and political issues may tempt
people to demand us to make it up as we go, but such an approach is
dangerous. If we choose to ignore the
law for one popular cause, then what is to prevent us from ignoring the law and
constitution for the next cause?
Be careful what you ask for – the next target could be you.