A year and a half after advising state and local cops that they weren't legally bound to detain immigrants at the request of federal immigration agents, California State Attorney General Kamala Harris has issued a new bulletin to cops, this time taking in the new state law known as the TRUST Act.
The bulletin outlines how unlike before the law kicked in, agencies' handling of immigration detainers is no longer discretionary. The measure, which took effect in January, limits who may be held by state and local agencies at the request of U.S. Immigration and Customs Enforcement, narrowing it to people with serious criminal records; inmates with straight misdemeanor convictions and non-criminals must be released if there is no other reason to hold them.
The measure has prompted law enforcement agencies throughout the state to revise their detention policies, as has a recent ruling by a federal court in Oregon, which determined that agencies' honoring of ICE detainers without probable cause could be a violation of constitutional Fourth Amendment rights. From the memo:
- Jurisdictions that choose to comply with ICE detainer requests may only do so in circumstances that meet the TRUST Act’s enumerated conditions;
- The TRUST Act does not affect obligations under Health and Safety Code section 11369, which requires federal notification when an arrest is made for specified controlled substances offenses and there is reason to believe the individual may not be a citizen of the United States;
- New case law and the TRUST Act only limit discretion to detain individuals and do not affect local law enforcement agency discretion to provide information to or otherwise cooperate with federal immigration officials; and
The bulletin also mentions how "new federal case law has created legal risk" for local jurisdictions that do voluntarily comply with ICE detainer requests:
- A federal court outside of California’s jurisdiction has held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release. If courts with jurisdiction affecting California follow the decision reached by this court, local law enforcement agencies may also be held liable for such conduct.
It also summarizes how to comply with the new law. Although the TRUST Act has been in place for several months, immigrant advocates have complained that statewide compliance is still uneven.