Gov. Cooper vetoes bill requiring sheriffs to cooperate with ICE

Updated: Aug. 21, 2019 at 12:54 PM EDT
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RALEIGH, N.C. (WBTV) - North Carolina Gov. Roy Cooper vetoed a bill Wednesday that would require sheriffs to cooperate with detainers from the U.S. Immigration and Customs Enforcement (ICE). Cooper said legislation is using fear to divide the state.

The North Carolina House of Representatives passed House Bill 370 Tuesday before it was sent to Cooper’s desk.

“This legislation is simply about scoring partisan political points and using fear to divide North Carolina. As the former top law enforcement officer of our state, I know that current law allows the state to jail and prosecute dangerous criminals regardless of immigration status," Cooper tweeted Wednesday. "This bill, in addition to being unconstitutional, weakens law enforcement in North Carolina by mandating sheriffs to do the job of federal agents, using local resources that could hurt their ability to protect their counties. Finally, to elevate their partisan political pandering, the legislature has made a sheriff’s violation of this new immigration duty as the only specifically named duty violation that can result in a sheriff’s removal from office.”

House Bill 370 states that sheriff’s departments across the state would be forced to work with immigration officers.

In an interview with WBTV Wednesday, ICE spokesman Bryan Cox said “When federal, state and local law enforcement cooperate that is the best service to public safety.”

Members of local activism group Comunidad Colectiva are celebrating the veto.

“This is a big victory for the immigrant community and it goes to show the democratic process of electing a sheriff is being respected," Stephania Arteaga said.

Democrats on Charlotte City council heading to the polls Wednesday agreed.

“I believe in the separation of powers,” councilman Braxton Winston said. “I believe that the sheriff in localities know what is best for the safety of those localities.”

But the Republicans who voted to pass the bill say the veto undermines safety.

“Domestic violence offenses if you look at the history, offenses against children, these sex offenses, violent assaults," Speaker Tim Moore said. "Why in the world would the sheriff release people like that and why in the world would the governor not sign a bill to say no to that?”

According to ICE, Mecklenburg County has recently denied up to 22 detainer requests.

It means immigration officials have to find these people on their own.

“When ICE has to go into a community and make an arrest that is more dangerous for the ICE officer, it’s more dangerous for the person being arrested and its also more dangerous as a whole," Cox said.

Lieutenant Governor Dan Forest released a statement Wednesday regarding the veto:

“Gov. Cooper has once again shown he is more concerned about protecting violent criminals who are in our state illegally than the safety and security of our citizens. This veto is shameful and jeopardizes public safety. The Governor cannot stand behind the far left’s talking points on this issue. Just this year, illegal immigrants arrested for child rape, domestic abuse and other violent crimes have been released back into the public without repercussions. This complete disregard for public safety must stop,” Lt. Gov. Forest said.

Several sheriffs have taken a stand against working with ICE, including Mecklenburg County Sheriff Garry McFadden.

The bill states that sheriffs who receive an ICE detainer request would be required to take the person before a “state judicial official.” That official would make the decision whether the inmate would continue to be detained.

H.B. 370 would also authorize the removal of a sheriff from office for failing to comply with ICE detainers.

Sheriff McFadden released a statement following Gov. Cooper’s veto of the bill on Wednesday:

"I applaud Governor Cooper on the veto of HB370. The bill is unconstitutional and would steal the authority of all Sheriffs to make those discretionary decisions that all Sheriffs are elected to make on behalf of their constituencies.

"HB370 would negatively impact public safety in Mecklenburg and other counties whose citizens provided a clear mandate to end 287(g) and to stop honoring ICE detainers. I continue to believe that this misguided and ill-advised bill would threaten the trust that I have spent a career trying to build between law enforcement and the community, including the immigrant community.

“My goal remains to work with all law enforcement agencies, state and federal prosecutors, and the judiciary, to implement plans and programs to keep the community safe. If the legislature overrides the Governor’s veto and HB370 becomes the law, I will, of course, direct the Mecklenburg County Sheriff’s Office to abide by it as we do all laws. But for the people of Mecklenburg County I sincerely hope that day never comes.”

Along with McFadden, some NC sheriffs have been ignoring these requests to detain people because they say detainers are not valid warrants so holding them for longer than they’re legally allowed could open up sheriff’s departments to legal actions.

Others believe when the sheriff’s office doesn’t hold people wanted by ICE, the department is allowing dangerous criminals to walk the streets freely.

The legislation would require sheriffs’ offices to track and report the number of queries they make to federal officials under its provisions.

The bill is sponsored by Rep. Destin Hall (R-Caldwell), Rep. Brenden Jones (R-Columbus) Rep. Jason Saine (R-Lincoln), and former sheriff Rep. Carson Smith (R-Pender). The bill is co-sponsored by state House Speaker Tim Moore (R-Cleveland).

In June, the North Carolina Sheriffs’ Association came out in support of the revised bill, but some sheriffs are still against it.

“It is the Association’s position that this edition of House Bill 370 provides an appropriate and careful balance under the Constitution for the rights of the accused and for the public safety of our communities,” the Sheriffs’ Association said in a release Wednesday. “For these reasons, the Association supports – high priority enactment of this edition of House Bill 370 by the North Carolina General Assembly,” the release said.

Sheriff McFadden provided a statement Tuesday afternoon after the House passed the bill.

As the Sheriff of our state’s largest county, I am disappointed that our state lawmakers have voted to approve House Bill 370 (HB 370). The passing of HB370 mandates that each Sheriff’s Office report and detain individuals for Immigration and Customs Enforcement (ICE) and sets the priorities for public safety in direct defiance of my constituents’ demands. HB 370 will negatively impact public safety in Mecklenburg County, where I was elected with a clear mandate to stop honoring voluntary ICE detainers and to end the 287(g) program. But beyond Mecklenburg County, HB370 erodes the constitutional authority of all elected Sheriffs in the state of North Carolina, by stripping away the ability of local communities to set their own policies. HB370 sets a terrible precedent by allowing the legislature to take away the authority of each duly elected Sheriff in North Carolina to make discretionary decisions in the best interest of his or her constituents. The North Carolina Sheriff’s Association has historically guarded the constitutional powers of the Sheriff but has catastrophically failed as it pertains to HB370. I also agree with Governor Cooper that HB370 is unconstitutional on its face-as it suggests that a state magistrate judge can rule on immigration matters like the legitimacy of an ICE detainer. The U.S. Constitution, decades of legal precedent and most recently, the North Carolina Court of Appeals, in its unanimous decision in the Chavez case, all make clear that only federal courts can rule on immigration matters. HB370 threatens the trust that I have spent a career trying to build between law enforcement and the community, including the immigrant community. This is a dangerous experiment in playing politics with our public safety. The result is that our community will be less safe and more divided. For these reasons, I would strongly encourage the Governor to veto HB370.

On Friday, Aug. 16, Sheriff McFadden and North Carolina House Speaker Tim Moore responded to an ICE announcement regarding the arrest of an Honduran fugitive who they say was released by Mecklenburg County despite rape and child sex offense charges.

ICE officials, in a press release, said that they arrested 33-year-old Oscar Pacheco-Leonardo, a Honduran national, during a targeted enforcement operation in Mecklenburg County on August 9.

ICE officials say the arrest came nearly two months after the Mecklenburg County Sheriff’s Office refused to honor an ICE detainer, or even notify ICE of the release, and instead released Pacheco-Leonardo following his arrest on first-degree rape and indecent liberties with a minor charges.

Sheriff McFadden released a full statement in response to ICE’s announcement Friday afternoon.

“Oscar Pacheco-Leonardo was arrested on charges of first-degree rape and indecent liberties with a minor on June 14th. Upon fulfilling his court ordered terms and conditions of release, including the payment of a $100,000 bond, Pacheco-Leonardo was released from Detention Center Central on June 16th as required by law. Setting bond amounts and conditions of release are the responsibility of Mecklenburg County, Judges and Magistrates. MCSO has a responsibility to abide by such court orders. My decision that MCSO will no longer honor voluntary ICE administrative detainers is not the sole reason for Pacheco-Leonardo’s release on June 16th. Different discretionary decisions of multiple stakeholders in the criminal justice system, including judicial and law enforcement (in particular ICE’s own discretion), must also be acknowledged and addressed by those who believe that Pacheco-Leonardo should have been kept in custody and then placed directly into deportation proceedings. At the time of Pacheco-Leonardo’s arrest, MCSO had no knowledge that he was previously deported in July 2006. However, that information was readily available to ICE. Furthermore, it is a federal felony to re-enter the United States after having been previously deported. ICE chose to issue voluntary ICE administrative detainers on Pacheco-Leonardo, knowing that it is against MCSO’s policy to honor such detainers. Based upon Pacheco-Leonardo’s previous deportation, ICE could have but did NOT seek a criminal arrest warrant for Illegal Re-Entry. The reasons for that decision have yet to be satisfactorily explained to me or to the public. MCSO will always honor a criminal warrant and hold any individual so charged in custody if and until that person has satisfied all court-ordered conditions of release. As of today’s, date, MCSO still does not have any information regarding current federal charges against Pacheco-Leonardo or his current location.”

In an interview with WBTV Friday afternoon, Speaker Moore spoke on House Bill 370 and the issue of sheriffs in the state not cooperating with ICE.

“We pass laws for the good of the state and to me, it seems common sense that a law enforcement officer who has take into custody a violent criminal who also happens to be in this country illegally, should turn that criminal over to Immigration and Customs Enforcement officials," Speaker Moore said. "We shouldn’t even be having to pass this law, but because we have some sheriffs that simply are doing this, we’re going do it because we’re going to make sure that North Carolinians are protected.”

During Tuesday’s House floor debate, several representatives discussed the bill.

“This bill does not target people who are in our country illegally and it does not force sheriffs to participate in 287g,” Rep. Carson Smith said. “It will help keep our families safe by keeping illegal alien criminals off our streets just like we keep legal citizen criminals off our streets.”

“Once you pay that bond, the sheriff doesn’t have any right to hold you in jail anymore. Once you hold someone like that, you may be violating their constitutional rights,” Rep. Kelly Alexander said.

“The citizens of this state deserve public safety. If the sheriffs won’t give it to them, we will through this bill,” Rep. Destin Hall.

“I’ve got three sheriffs with three different views but the one thing they have in common is they don’t like the removal provision,” retired chief district court judge Scott Brewer said. “It’s a terrible position to put the sheriffs in until its sorted out in the federal courts.”

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