Sheriffs’ Assn. attorney prepared to fight commishes’ anticipated ICE appeal
Bucks County’s Democratic commissioners spent much of the recent trial over immigration enforcement loosely allied with the case’s actual plaintiffs who, a county judge ruled, had no standing to sue Republican Sheriff Fred Harran.
Now Commissioners Bob Harvie and Diane Ellis-Marseglia want to appeal Common Pleas Judge Jeffrey Trauger’s decision allowing Harran’s office to partner with U.S. Immigration and Customs Enforcement. Butler-based attorney Thomas W. King III is prepared to fight that move as illegitimate.
After the American Civil Liberties Union of Pennsylvania sued Bucks County and Harran on behalf of three nonprofits and a local resident, Trauger permitted Harvie and Ellis-Marseglia to become plaintiffs. They did not, instead filing a cross-claim against the sheriff, imputing fault to him but effectively remaining defendants as representatives of the county. In so doing, they got nowhere.
“They tried to argue that in court and the judge obviously didn’t buy it,” said King, who represents the Pennsylvania Sheriffs’ Association (PSA). “It’s just not legally right. It’s not even arguably right; you can’t argue about it. It’s like: Do you have to stop at a stop sign? That’s how clear it is. It doesn’t make them a plaintiff.”
Because Trauger’s ruling technically put Harvie and Ellis-Marseglia on the winning side of the case, despite their vehement opposition to Harran’s agreement to work with ICE on some enforcement tasks, King believes they cannot appeal.
“If they do file an appeal, I’ll be filing a motion to strike their appeal,” he promised.
Neither the commissioners nor the ACLU returned a request for comment.
The PSA was not named as a defendant in the complaint filed earlier this year by Make the Road States, the NAACP Bucks County Branch, the Buxmont Unitarian Universalist Fellowship, and Juan Navia. Yet the PSA and two of its member sheriffs, C.J. Walters (R-Bradford County) and Benjamin H. Sites (R-Franklin County) intervened in Harran’s favor. Walters and Sites have accords with ICE, known as 287(g) agreements, similar to Harran’s.
“We stepped in and we intervened in the case because we have an interest in it,” King said.
Harran expressed his appreciation for the PSA’s involvement.
“The fact that they stepped up to join with me was certainly helpful to show that this just wasn’t a Bucks County issue,” he said. “This had lasting and broadening impact on this case; this case could’ve impacted 67 counties and that could have been problematic. Partnerships and working with other agencies are key in law enforcement; you cannot work in a bubble.”
Whether or not Harvie and Ellis-Marseglia, a majority of the three-person Board of Commissioners, can appeal, the ACLU plans to do so on behalf of their clients, bringing the case before the Pennsylvania Commonwealth Court. At this writing, the complainants have yet to submit the filing.
If a state court nixes Harran’s participation in 287(g), that will end the partnership facilitating the county’s ability to identify and process removable aliens already in custody. Harran’s attorneys, with King’s support, persuaded Trauger that the left-wing organizations and individuals suing the Bucks sheriff were ill-positioned to do so because, unlike the commissioners, they could not articulate a relevant grievance.
Harvie and Ellis-Marseglia maintained Harran could not enter into a “contract” with ICE because the Pennsylvania Intergovernmental Cooperation Act (ICA) solely vested their commission with the right to make such a decision. The ACLU based its case significantly upon that argument. While Trauger decided nongovernmental complainants couldn’t successfully make that argument, he found it underwhelming anyway.
“Even if they could demonstrate standing, the Court further finds that the documents signed
by the Sheriff are not an enforceable contract and therefore were not subject to the approval of the Bucks County Commissioners,” the judge wrote.
King lauded the ruling as thoughtful and thorough.
“The judge’s decision is extremely well-written and he analyzed every part of the case that was before him and he found that the plaintiffs in this case didn’t have standing,” King said. “So, once you find that the plaintiffs don’t have standing…, you don’t have to get to any other issue in the case because if you can’t have brought the case in the first place, then there’s no need or use in going any further in the analysis.”
The attorney further reflected on the commissioners’ failure to join the lawsuit as plaintiffs, deeming it inexplicable in light of their hostility to the 287(g) agreement. Yet ultimately, he said, that hostility made little sense inasmuch as sheriffs are “conservators of the peace” who perform a host of law-enforcement duties beyond mere court security and warrant service, including dispute resolution and interagency partnerships.
The feds weighed in
So important does President Donald Trump consider 287(g) participation that his Attorney General’s Office filed a statement of interest in the case on August 1. Therein, federal attorneys explained that the national government may delegate immigration authority to local law enforcement pursuant to the Immigration and Nationality Act.
“Federal administrative warrants comply with the U.S. Constitution no matter what entity effectuates them,” wrote federal prosecutors Brett Shumate, David Metcalf, Charles Roberts, and Gregory in den Berken. “That is because (1) federal officials and those acting pursuant to such authority can constitutionally arrest aliens under a federal administrative warrant; (2) the lawfulness of that practice… does not change when local officials are authorized by federal law to effect the arrest; and (3) even absent a 287(g) agreement, local officials may constitutionally rely upon federal officials’ probable-cause determinations and temporarily hold aliens at the Federal Government’s express direction or request.”
Metcalf and his colleagues urged the court to accept these practices especially given the presence of millions of illegal immigrants in the United States, straining the federal government’s ability to handle this crisis alone.
In allying with ICE, Harran exercised his prerogative to perform a limited set of duties, including accessing ICE’s database, determining whether suspected criminals had warrants in other jurisdictions, and transferring arrested individuals into ICE custody. He did not suggest he would perform raids on businesses or similar pre-arrest enforcement tasks.
“The sheriff made it very clear that what he was seeking was a limited participation to safeguard the people in Bucks County by understanding who it was he had in his possession,” King said.
The narrow form of Harran’s agreement with ICE resembles the “jail enforcement model,” a more moderate partnership option than the “task force model” which the sheriff selected. The latter permits local agencies to pursue immigration violators beyond those already in custody, though King explained that Harran chose it because the jail enforcement option was available specifically for guards in correctional facilities.
“He couldn’t select the jail model because in Bucks County — it’s too big a county — the sheriff’s deputies don’t operate the prison,” King said. “In some limited number of counties in Pennsylvania, it was at one time that the sheriffs across Pennsylvania ran the jails, but that’s changed dramatically over the years, and that’s the case only in eighth-class counties now. Only in the smallest counties do the sheriffs still run the jails.”
Harran himself reaffirmed his original intent to focus on apprehended criminal suspects.
“This case was never about making car stops on people,” he said. “This case was never about going into different types of businesses looking for people who were here illegally. That is just [287(g) opponents’] propaganda. That was never what I was doing; it’s never what I’m going to do.”
King isn’t predicting whether or not the majority-Republican Commonwealth Court will let Harran stay in the 287(g) program. Still, he said he expects a fair-minded hearing once the matter lands on the court’s docket.
“There are excellent judges in the Commonwealth Court that understand the workings of government,” The PSA attorney opined. “I’m sure they’ll understand the case and the implications of it.”
One key implication, he emphasized, is that the case concerns the authority of a sheriff to participate in 287(g), irrespective of what a particular sheriff decides. He noted that the PSA represents all sheriffs in the commonwealth, including those who don’t partner with ICE. The sheriffs’ common interest, he said, is in reserving the right to partner with other public offices to improve law enforcement operations and make the public safer.
“The reason we’re involved in it is not to say this is a good program or a bad program or that somebody should do it or not do it,” King said. “Our position in this is that sheriffs have the authority to do it if they want to…. That’s what’s so important to the association because the next program [potentially challenged] will be one where we sign with the Bureau of Prisons to chase after escaped prisoners; or the next one will be to guard — as we did during the pandemic — the lakes supplying water for communities…. What we don’t want to have is a decision that somehow undermines the ability of sheriffs to do the things that they think they need to do to safeguard the people in their communities.”
Harran echoed this contention, listing several interagency partnerships his office has joined, including with the U.S. Department of Homeland Security, the U.S. Marshals Service, and, for a stint, the Federal Bureau of Investigation. He said the Democratic commissioners took issue with none of those agreements based on the ICA or any other law.
“We’ve had agreements with other agencies long before the county commissioners heard the number 287(g),” he said. “Their personal feeling is they don’t believe in it, so they took it on as a fight and they lost.”
Harran faces a reelection contest next Tuesday, November 4. His Democratic opponent Danny Ceisler, who opposes 287(g), declined to comment at this point in the legal process.
Bradley Vasoli is the senior editor of The Independence.
