The Blog

Athens is a Sovereign City

Posted on March 03, 2018

By: Spencer Frye

There’s been a lot of press over the last few months about the Athens-Clarke County Sheriff’s Office holding people on behalf of the US Dept. of Homeland Security’s Immigration and Customs Enforcement division, or ICE. The Athens-Clarke Police Department, on the other hand, does not perform such detentions.

The Sheriff’s Office says it’s just following the law. Some local citizens and leaders, however, feel the SO is voluntarily performing an unrequired task which degrades safety and quality of life in our county by pulling families apart and making some residents reluctant to report crimes or come forward as witnesses.

Before giving my thoughts, let’s first clarify what is not in dispute. The SO is not staging raids or sweeps. They are not making arrests based on immigration status. And they are not asking for residency documents of anyone seeking assistance from, or providing assistance to, local law enforcement. And those who oppose the SO’s detention policy are not asking that violent criminals be spared from federal charges or deportation.

The difference of opinion, rather, concerns cases in which people land in custody over relatively minor offenses, such as a traffic stop, and end up being held by the county for ICE. According to the Sheriff’s Office, of the 13 people who have been turned over to ICE and subsequently deported, 4 were charged exclusively with non-DUI traffic violations, 1 with shoplifting, 4 with simple battery or assault, 1 with aggravated assault, 1 with statutory rape (at age 18), 1 with DUI, and 1 with DUI and hit and run. This means 30% of detentions leading to deportation have resulted from traffic infractions alone, and 38% from non-violent offenses not involving DUI or a sex crime.

In the US, enforcing immigration law is the exclusive domain of the federal government — states, counties, and municipalities are not empowered to do so. The question is, then, in such cases as the above does the law require our county to spend our resources detaining undocumented foreign nationals so that ICE can come get them?

The law cited by the SO is section 42-4-14 of the Georgia Code: “‘Illegal alien’ defined; determination of nationality of person charged with felony and confined in a jail facility”. According to the title, then, non-felons appear to fall outside of the scope of the requirements. Section (a) defines an “illegal alien” as a person “verified by the federal government” to be in the US “in violation of federal immigration law”. Section (b) provides that “a reasonable effort shall be made to determine the nationality” of persons “confined, for any period, in the jail of a county or municipality”.

The directly pertinent sections of the code are (c) and (d). Section (c) concerns “foreign national(s)” being held in a local jail, providing that “a reasonable effort” be made to determine if they entered legally and their legal status has not expired including, if necessary, queries to Homeland Security. It then states that “if the foreign national is determined to be an illegal alien, the keeper of the jail or other officer shall notify the United States Department of Homeland Security, or other office or agency designated for notification by the federal government”. All that is required here is notification.

Section (d) adds that “nothing in this Code section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release” with the exception that a person verified to be an illegal alien “may be detained, arrested, and transported as authorized by state and federal law”. What jumps out at me here is that although the code specifies that local law enforcement “shall” make a reasonable effort to determine the nationality of confined persons and “shall” notify Homeland Security of “illegal aliens” in custody, it only states that illegal aliens, once verified as such, “may” be denied release from confinement in order to be detained, arrested, or transported in accordance with “state and federal law”.

From what I can see in the code, it applies specifically to “persons charged with felony”, and although local law enforcement “may” further detain someone verified to be an “illegal alien” if specifically provided for by state or federal law, they do not appear to be required to do so. In other words, the local obligation appears to end at notification.

We pay our federal taxes to fund federal functions. We pay state and local taxes to fund state and local functions. It seems to me, as a general principle, that this arrangement should be respected, and that local resources should be spent on local law enforcement and not diverted toward fulfilling an unfunded mandate which, according to the US Supreme Court, local law enforcement is not Constitutionally empowered to fulfill in the first place. If more resources are needed at the federal level, then they should be obtained and expended at the federal level. Local sovereignty and the will of the majority of local citizens should be honored.

The focus of local law enforcement should be on safety — which comprises security in our persons, our homes, our property, and our rights. It is difficult to see how these interests are served by expending local resources toward the deportation of persons arrested for traffic violations or shoplifting, especially in cases where such action might leave children, who may well be US citizens, stranded without a parent. Notification to Homeland Security in cases where this is required by law should be sufficient to comply with our obligations.

Sheriff Ira Edwards has already convened a citizens’ input committee to find a solution in this matter and has stated that his primary commitment is to public safety, and I commend him for that. I am confident that a solution can and will be reached. And I would hope that this solution respects the separation of federal and state and local powers, that it seeks to protect the interests of innocent children who may be affected, and that it is guided by the principle that punishment should not be disproportional to the crime. To that end, I recommend that those interested in this issue reach out to Sheriff Edwards and participate in the process he has initiated, because although protesting has its place in civil discourse, we cannot actually resolve our differences and enact solutions until we progress from the street and the editorial page to the roundtable of respectful discussion.