Penzone to Secretary Kelly: courtesy detaining is unconstitutional, illegal

Maricopa County Sheriff Paul Penzone. (Photo credit: Allan Henry)

On Friday, Feb. 17, 2017, I was advised by my counsel, the Maricopa County Attorney, the practice the Maricopa County Sheriffs Office had participated in of detaining illegal immigrants based solely on Immigration and Customs Enforcement (“ICE”) courtesy detainers was unconstitutional and illegal.

First and foremost, I am a law enforcement officer and swore an oath to uphold the United States Constitution. It has always been my position we must be strong on issues of crime, including illegal immigration. I will not violate the law or the constitution so the ends justify the means.

Upon receiving the advice of my Counsel, I acted immediately.

I am not the only sheriff and Maricopa is not the only county taking this position. In fact, 43 of the 50 states have counties that cannot enforce courtesy holds due to the illegality of the practice.

For far too long, local law enforcement has been forced to take a position without the support, guidance and resources to accomplish our common goal of public safety.

This issue is far too important and has gone on far too long without a responsible, ethical and legal solution.

The federal government has requested that local and county law enforcement take the responsibility of detention and incarceration for detainees of federal immigration courtesy holds, but has failed to address when we assume the responsibility of unlawful detentions.

Across the nation, every agency is interpreting its authority differently.

Many, including my office, have been sued and are penalized legally or monetarily due to the lack of clarity in the laws and authority. The federal government has the ability to resolve this issue and provide guidance and partnership.

Your Feb. 20 memorandum regarding the president’s border security and immigration enforcement improvements policies encourages more local law enforcement to apply for 287(g) status.

MCSO is in a unique position and had its 287(g) status taken away prior to my term. We are unable to reapply for 287(g) status because of a federal court order.

There are other local law enforcement agencies that may not have the resources or have other reasons why they do not apply for 287(g) status.

For those of us that are in these circumstances, but still wish to support federal law enforcement, we require consistent, constitutional parameters to achieve this shared goal of addressing illegal immigration.

On a personal note, I was elected sheriff on a platform of enforcing the laws and promoting public safety in an ethical, transparent manner.

I recognize that illegal immigration is a top priority and I fully support this effort.

As sheriff of the largest county in a border state, I firmly believe we must have secure borders.

Many of these aspects are outside of my authority and jurisdiction, yet I am committed to working toward our common goal for the best interests of my county, this state and our nation.

I request that DHS immediately prioritize this issue to assist local law enforcement. It is time for the federal government to lead this effort and provide consistent, legal and constitutional guidelines for local and state law enforcement officials.

The limits of our authority must be taken into consideration and respected, as current circumstances have jeopardized the stability of our communities and the reputations of our agencies.

This communication is intended to start a dialogue as I am committed to work in partnership with the federal government to identify a more comprehensive solution.

If you believe it would assist with these efforts, I would be willing to travel to Washington D.C. to meet with you and other affected local law enforcement agencies.

Editor’s Note: Paul Penzone is the sheriff of Maricopa County.

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