Sheriff’s counsel: Anti-ICE plaintiffs lack standing to sue
When Bucks County Sheriff Fred Harran secured a partnership between his department and U.S. Immigration and Customs Enforcement, two county commissioners groused that state law forbids him to do that without their blessing.
Three months later, Democrats Bob Harvie and Diane Ellis-Marseglia are well into a county courtroom battle to restore the Board of Commissioners’ avowed role as the county’s “sole contracting authority.”
Strike that: The commissioners aren’t suing the Republican sheriff. Three nonprofits and a county resident, represented by the American Civil Liberties Union of Pennsylvania, are waging the legal fight to kill the ICE agreement under which deputies train to aid federal immigration enforcement.
Harran’s attorney Wally Zimolong predicts that Harvie and Ellis-Marseglia’s noninvolvement spells doom for the lawsuit: If Harran flouted their rights as guaranteed by the commonwealth, why don’t they litigate?
“What I think is remarkable here and should be a flashing red light alerting the court that the plaintiffs don’t have standing is that if in fact what Sheriff Harran did was in contravention of the power of the commissioners, why aren’t the commissioners suing Sheriff Harran for allegedly usurping their authority? They’re not.” he said. “The commissioners have not done anything to Sheriff Harran and I think that tells you everything you need to know about the strength of the case here.”
The Independence did not contact Sheriff Harran for direct comment as he previously said he could not discuss the ongoing litigation.
Who is suing?
The petitioners — Make the Road States, Inc., the NAACP Bucks County Branch, BuxMont Unitarian Universalist Fellowship, and Juan Navia — inveigh at length in their complaint about Harran’s alleged breach of the Pennsylvania Intergovernmental Cooperation Act (ICA). That’s the law that the commissioners say demands they alone execute agreements like the one Harran forged with ICE.
Harvie and Ellis-Marseglia have insisted during Board of Commissioners meetings that they and their Republican colleague Gene DiGirolamo could vote on legislation to formally cooperate with a federal agency like ICE, but other elected row officers can’t approve such an accord. The board passed a resolution to this effect in late May over DiGirolamo’s “no” vote. The commissioners’ majority, relying on the legal judgment of Solicitor Amy Fitzpatrick (now also a Democratic County judge candidate), said they hoped the resolution would shield them from a lawsuit against Harran. They were not ultimately named as defendants.
The ACLU echoed the commissioners’ argument in its initial brief, mentioning a section of the ICA which states “[a] municipality by act of its governing body may… cooperate or agree in the exercise of any function, power or responsibility with… the Federal Government.” The law adds yet another layer of bureaucracy to the process by requiring agreement between a local government and a federal agency to go before the Pennsylvania Local Government Commission — a board of ten state lawmakers — “for review and recommendation.”
Neither of these things happened. But to show the sheriff’s ICE partnership harms those who are actually suing, the ACLU raises the specter of other, largely hypothetical, problems.
Complainants, whose ACLU lawyers were asked for comment but didn’t reply, suggest in their lawsuit that local partnerships with ICE beget “racial profiling, poor jail conditions, and other civil rights violations.” They claim Harran’s working relationship with the federal agency has already caused NAACP Bucks to “divert time and resources to advocacy and education efforts surrounding this agreement and the rights of impacted Bucks County residents.” Their complaint even states the ICE agreement is “requiring BuxMont UU’s staff to devote substantial time and resources to delivering pastoral and spiritual care to impacted members and constituents.”
What does the agreement do?
The accord between Harran and ICE is part of the agency’s 287(g) program, which can take one of three forms: the “jail enforcement model,” which delivers arrested illegal aliens into federal custody; the “task force model,” which grants local agencies limited authority to pursue immigration violators; and the “warrant service officer” program, which permits officers to execute administrative warrants on illegal immigrant jail inmates. Harran opted for the task force model.
Zimolong emphasized the agreement doesn’t force Harran — or ICE, for that matter — to do anything, but merely enables the sheriff to perform immigration enforcement tasks he expects will make Bucks County safer. The attorney said the federal government must first ask the sheriff to take action, and the sheriff must do so willingly.
“He’s only going to perform those portions of the agreement that he is able to perform, has the resources to perform, and frankly wants to perform,” Zimolong said. “He can decline a delegation of any authority. He can say: I’m sorry, I respectfully decline that.”
He could, for instance, potentially refuse a request by ICE to raid a business the agency believes harbors illegal aliens if he finds that request dubious or burdensome. Primarily, the attorney said, Harran will detain arrestees with outstanding warrants and alert ICE so the bureau could take them into custody. That squares with the sheriff’s professed goal to target illegals “actively involved in criminal behavior.”
“He’s focused 100% on criminal illegal aliens that come within his custody,” Zimolong said. “I’m not sure why that’s controversial.”
Jessica M. Vaughan, policy studies director at the D.C.-based Center for Immigration Studies (CIS), says that law-and-order concern behooves all American law enforcement agencies to embrace 287(g).
“It supports the local law enforcement agencies’ public safety mission and supports ICE’s immigration enforcement mission with the result that that small fraction of illegal aliens who are committing crimes and causing problems in the community will not fall between the cracks — that they will be identified and turned over to ICE if they are subject to removal,” she said. “It means that local agencies can question the immigration status of people that they’ve already arrested, that they have the authority to hold the individual until ICE can get there to take custody under ICE’s supervision and only when ICE says that they should hold the person, and it means that ICE doesn’t have to be in every county jail.”
Who’s got the power?
The ACLU’s complaint regards Harran’s partnership with ICE as ultra vires, meaning “beyond the powers.” The group alleges he doubly ignored state law by failing to consult the Board of Commissioners and the Local Government Commission.
Danny Ceisler, the Army veteran, attorney, and company operations executive who is running as a Democrat against Harran’s reelection bid this year, shares that view.
“Pennsylvania law is clear that the Board of Commissioners is the only entity authorized to enter into an intergovernmental agreement like the sheriff’s partnership with ICE,” he said. “As the chief law enforcement officer in the county, the Sheriff has to follow the law, not willingly break it to advance a political agenda — especially one that will ultimately be detrimental to public safety in our community.”
Zimolong derided the ICA, the 1996 state law in question, as a “weird, esoteric act that no one ever heard of” that the ACLU “fished up to try to put together a case with bubble gum and popsicle sticks.” His filings in the case point instead to the Immigration and Nationality Act. That law, in the section bearing 287(g)’s name, lets the federal government “enter into a written agreement with a State, or any political subdivision of a State… in relation to the investigation, apprehension, or detention of aliens in the United States.”
“The agreement is a delegation of federal power to Sheriff Harran not the other way around,” Zimolong and his associate Meaghan Wagner wrote in their answer to the ACLU complaint.
Zimolong opined that the commissioners’ May resolution does nothing to help the complainants’ case since Harvie and Ellis-Marseglia “just don’t have any authority in this area.” He also demurred at the commissioners’ mention of “contracting authority.” The 287(g) arrangement, he explained, is not a “contract” as it lacks “consideration,” i.e., a promise made in exchange for another. Vaughan concurred, calling the document a “memorandum of agreement.”
Such non-contractual arrangements between policing agencies and the federal government are, Zimolong observed, actually common. He said if a court nixed 287(g) in Bucks, it would imperil numerous joint anti-crime task forces, potentially reversing many criminal indictments and convictions.
“[The plaintiffs’ lawyers] want lawlessness, and that’s what they’re getting because they care more about criminals than they do about you and me,” he said.
Concerns about 287(g)’s effects
Harran’s work on immigration enforcement is underway, his deputies having received training and certification under 287(g), according to Zimolong. The plaintiffs say this will inevitably lead to civil rights violations including racial profiling, citing a 2011 review by the Department of Justice under Democratic President Barack Obama. However, that memorandum rebuking the enforcement work of Joe Arpaio, then the far-right sheriff of Maricopa County, Arizona, never mentions 287(g) or the INA.
The current Justice Department under Republican President Donald Trump, a zealous immigration enforcer, entered a filing in the Bucks County case dismissing the notion that the Obama administration found that program leads to civil rights abuses.
“Neither source [plaintiffs] cite for this accusation identifies any link between such agreements and the Department’s findings in those two discrete matters,” federal attorneys wrote.
Vaughan also doubted the ACLU’s profiling fears. She suggested the program makes racialist policing less likely because it comprehensively trains local officers to ascertain immigration status without resorting to guesswork.
“I’m not aware of any instance of a proven racial profiling or abuse of authority in connection with 287(g),” she said. “There have been accusations of it, but these investigations do not pan out.”
The petitioners also caution against the program’s fiscal impact, though ICE provides its training for free and Zimolong says he “can’t think of any” costs the agreement would entail. Vaughan, having spoken with many police and sheriff departments who have accessed 287(g), concludes the program tends to save taxpayer money because it removes some criminals from the community entirely, preventing them from reoffending there.
“For this little bit of investment in processing them to go into ICE custody, they’re saving future criminal justice costs, future victimizations, and future problems from this individual,” she said, recalling a sheriff’s department in Florida that was able to close one of its smaller jails because immigration enforcement through 287(g) was so successful. “We’re stuck with American citizens who commit crime; we can’t deport them. We can deport people who are in the country illegal and committing crimes.”
Ceisler, Harran’s reelection opponent, questioned the 287(g)’s efficacy, recalling some local agencies across the U.S. have ceased to participate in it and calling the International Association of Chiefs of Police “deeply skeptical of it.” He noted that the Trump White House does not currently consider Bucks County a “sanctuary county” that shirks immigration enforcement. (Vaughan’s organization CIS does, however.)
“There is no practical reason to implement 287(g) in Bucks County,” Ceisler said.
Where do things stand now?
In June, Harran’s attorneys tried to move the case to federal court, which they considered the right venue for a dispute involving federal immigration law, but U.S. District Judge Juan Sanchez sent the case back to Doylestown. Zimolong thinks that setback won’t matter in the long run.
At this writing, the Bucks County Court of Common Pleas has tentatively scheduled a hearing for September 15. It may or may not occur; defense counsel wants Judge Jeffrey Trauger to first deny the petitioners standing in the case, dropping the curtains on it.
“The court needs to resolve [standing] first,” Zimolong said. “Because without standing, the court doesn’t have jurisdiction to hear the case and it’s my position that it would be inappropriate for the court to proceed in the case if it does not believe that it has standing.”
Harvie and Ellis-Marseglia’s reasons for not suing Harran themselves remain a mystery, for their press office didn’t return a request for comment.
Editor’s note: This article was updated to clarify Danny Ceisler’s occupation.
Bradley Vasoli is the senior editor of The Independence.
