Committee sends ICE agreement bill for amendment

BOISE — Several law enforcement officials testified at the Capitol on Monday in opposition to legislation they said would thrust the responsibilities of the federal government and U.S. Immigration and Customs Enforcement onto local agencies.

The opposition arrived in response to a hearing for Senate Bill 1142. If passed into law, city, county and state law enforcement would be required to determine the immigration status and nationality of individuals during investigations and report statistics on undocumented immigrant interactions with law enforcement. Each would be required even if an arrest doesn't take place.

The legislation sponsored by Sen. Kelly Anthon, R-Rupert, is a new rendition of House Bill 660 which passed out of the House earlier in March but has since stalled in the Senate. Senate Bill 1142 now heads to the Senate floor with much of the prior’s bill language — and opposition from law enforcement — along with reporting requirements for refugees resettled in Idaho.

This additional section will apply to any entity in the state contracted with the federal government to engage in resettlement services in Idaho. If passed into law, each organization would be required to provide the legislature with an annual audit for the services they provide to refugees. 

This includes an audit of the number of refugees served, the nationality and gender of refugees served, the language abilities of refugees served, the counties and municipalities where refugees served are housed and the number of housing units taken by refugees served.

Sen. Melissa Wintrow, D-Boise, noted that since these organizations are already working with the federal government, this information is already being reported. She questioned, however, whether the reporting requirements around which county or municipality refugees are housed and how many housing units were used was needed.

Anthon responded that these metrics would not include addresses or where the specific housing units are and would instead provide general data.

"I've always thought in my mind that if we're bringing refugees to the state of Idaho, and particularly local governments, there should be some data that shows what we're doing," Anthon said.

Sheriffs speak out against the bill

Though refugee data collection was the new element of the legislation, the focus remained on the impact on local law enforcement.

Ada County Sheriff Matt Clifford said his primary concern with the legislation pertained to the requirement for nationality and immigration status to be determined throughout the “administration of criminal justice,” including detainment and other investigatory action taken by law enforcement that doesn't necessarily lead to an arrest. 

"I'm assuming we don't want to be doing that on every traffic stop, just trying to figure out somebody's nationality," Clifford said. "That leads us down a bad road in litigation ... I certainly don't want the (attorney general) investigating me for not enforcing the law."

Beyond the potential legal issues, Clifford said confusion could arise if new information is gathered from the time a person is detained to the time they are arrested and processed through a jail.

At the time of detainment, a person could attest to being a lawful resident and a corresponding report would be submitted by the officer engaged in detainment. Once they are brought to a jail and have their fingerprints ran or their information reported to ICE databases, a jail deputy could come to the determination they were residing in the U.S. illegally, resulting in inconsistent reports for the same person, Clifford said.

Clifford urged the committee to remove reporting for investigation and detainment as they often do not lead to arrest. If kept in place, he said, he feared the result would be “overpromising and underdelivering.” 

Canyon County Sheriff Kieran Donahue, echoing concerns voiced by Clifford, said about 30% of the people his office stops and detains are not arrested and those who are arrested are already reported to ICE.

“If this person is believed or has admitted to being in the country illegally, then that becomes ICE’s problem,” Donahue said. “That’s not my problem anymore. That is ICE's responsibility of the Department of Homeland Security under federal law that I cannot and do not enforce, there needs to be a continuation of that separation. We do not do ICE’s job.”

In response to separate legislation directing Idaho law enforcement to enter into agreements with ICE, Clifford issued a statement last week making clear the office already provides ICE with daily arrest lists and collaborates with ICE and the U.S. Marshals Service to apprehend wanted criminals.

Addressing the requirements for officers to determine nationality and immigration during investigation — whether they are citizen or non-citizen — Donahue said it raised a legal question of whether the state would be violating privacy rights.

If that were the case, liability would not come back to the Idaho Legislature, it would come to cities, counties and individual officers. If these officers are sued for action in their individual capacity, the result could be “bypassing qualified immunity,” Donahue said. 

Seth Grigg, speaking on behalf of the Idaho Association of Counties, said he was concerned about a provision within the bill that state funding may be withheld from a local, county or state law enforcement agency that fails to comply with the bill. Grigg raised the possibility of a county running the risk of losing revenue sharing with the state in the event a sheriff refuses to or chooses not to submit a report to the state.

“Essentially you’re penalizing the county as a whole for the action of an individual within the county,” Grigg said.

Sen. Brandon Shippy, R-New Plymouth, voiced similar issues with the bill's lack of mention as to what authority will determine whether local law enforcement is accurately reporting statistics.

Though "wanting to like" legislation with the stated aim of transparency, Shippy said the entirely oppositional testimony from law enforcement indicated these agencies hadn't been "worked with to a great extent" in the drafting of the legislation.  

Following public testimony, Anthon said he was willing to have language changed in the bill to only require law enforcement to report statistics on the number of undocumented immigrants transferred to federal law enforcement, rather than needing to report all instances in which these individuals were investigated, apprehended or detained by law enforcement.

After raising outstanding issues with the legislation, Shippy, Wintrow and Sen. James Ruchti, D-Pocatello, each voted against the bill, which now heads to the Senate floor with a "do pass" recommendation.