#gerald baker

Sponsors of a bill that would force North Carolina sheriffs to cooperate with Immigration and Customs Enforcement have been clear about what prompted it: The election of new sheriffs — including in Durham, Wake, Mecklenburg, Buncombe, and Forsyth Counties — who pledged to stop participating in ICE programs.

Counties that had previously participated in the federal 287(g) program, which deputizes local officers to carry out some immigration enforcement duties, promptly ended their agreements, and agencies that had complied with ICE detainer requests announced that, going forward, they would only hold people in jail for ICE with a judge’s order.

This, according to Republicans in the state House, could not stand.

“These sanctuary sheriffs are simply putting partisan politics ahead of public safety,” Representative Destin Hall, a sponsor of House Bill 370, said on the House floor April 3, shortly before the measure passed on a party-line vote of 63–51.  (Hall didn’t respond to an interview request.)

That’s not a big enough margin to overcome a veto, should the bill pass the Senate, where Republicans have a slimmer majority than in the House.  But despite the apparent long odds, its backers — including the powerful House Speaker Tim Moore — have sought to raise the bill’s profile.  

Last month, Moore appeared on Fox News’ primetime show The Ingraham Angle, whose host, Laura Ingraham, famously ranted last year about “massive demographic changes” that “most of us don’t like” because “the America that we know and love doesn’t exist anymore.”  Moore told Ingraham’s viewers, “It’s just irresponsible for any official, particularly a law enforcement official, to in any way advocate releasing someone who is a criminal, who committed a crime, back out onto the streets, who should not even be here. … Some of the folks that we’ve seen already in North Carolina in these counties where some of these sheriffs have done this are people who assaulted law enforcement officers, are people who committed sex offenses.”

A study of forty years of data published in the Journal of Ethnicity in Criminal Research in 2016, however, found no correlation between immigration and crime.  On the contrary, the researchers said, “Our results indicate that immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime” from 1970 to 2010.

Nationwide, the vast majority of people subject to ICE’s detainer requests have no or minor criminal records. In North Carolina, of the nearly forty-six thousand individuals ICE asked to be detained from the fiscal years 2003 to 2016, only 60 percent had been convicted of a crime, according to Syracuse University’s Transactional Records Clearinghouse, and many of those holds were sent to state prisons, not local jails.  (More recent information isn’t available through TRAC because it’s been withheld by the Trump administration.)

“The public safety thing is really a red herring in the reality that ICE is physically present at state prisons, where disproportionately individuals with serious crimes are being held and serving their sentence,” says Mark Fleming, associate director of litigation at the National Immigrant Justice Center.  “Really, what this is about is how wide can you make the net to get as many undocumented immigrants or immigrants that are otherwise deportable into the pipeline.”

But Moore’s rhetoric echoes that of President Trump.  Trump — like Governor Cooper and the entire General Assembly — will be on the ballot next year, and his hardline immigration policies, designed to energize his base, will likely be front and center during the campaign.  In a broad sense, Moore needs Trump to do well in North Carolina to prevent further Democratic gains in the legislature and to have any hope of ousting Cooper.

But for Moore, who lost his GOP supermajorities in November, there’s no downside: If Cooper vetoes the bill, Republicans can run attack ads accusing him of being weak on crime.  If he doesn’t, progressives will likely savage him.

Cooper hasn’t taken a position on HB 370.

Subtract the politics, though, and immigrants’ rights advocates and legal experts say that, taken on its merits, HB 370 is a mess.  If it actually became law, it would both jeopardize public safety and put the state’s sheriffs in legal binds.

“Anytime you have that close cooperation between local law enforcement agencies and immigration authorities, it leads to that sort of erosion of trust, which makes communities less safe,” says Raul Pinto, a staff attorney with the North Carolina Justice Center’s Immigrant and Refugee Rights Project.  “So it’s really counter to the stated purpose of the bill.”

HB 370 would require sheriffs to honor ICE’s detainer requests, which ask local jails to hold people after they would otherwise be released or give ICE advanced notice before they’re released.  (Hall has said ICE was consulted in crafting the bill.)  Nothing in federal law requires local law enforcement to comply with detainers.  In fact, multiple courts have found that they are not mandatory.

HB 370 would take away sheriffs’ discretion, the North Carolina Sheriff’s Association said in opposing the legislation with “high priority,” an announcement that came five hours before the House passed it.

Sheriffs who oppose the bill say it’s not their job to enforce federal immigration laws.  They want all of their constituents, regardless of immigration status, to feel comfortable interacting with law enforcement. Indeed, immigrant advocates say HB 370 will discourage immigrants from reporting crimes, and this problem is particularly acute when it comes to domestic violence victims, whose safety may depend on calling 911.  (After President Trump issued an executive order stating that no one would be exempt from immigration enforcement, The Los Angeles Times found that reports of domestic violence among Latinx Californians declined significantly — by as much as 18 percent in San Francisco.)  Several state domestic violence organizations have come out against the bill.

If HB 370 becomes law, sheriffs would be exposed to lawsuits no matter what they do — either by those wrongfully detained, or by state residents, whom the bill empowers to sue sheriffs they believe aren’t honoring ICE detainers.

“I think it particularly puts sheriffs in an absolutely impossible position,” says Mark Fleming, associate director of litigation at the National Immigrant Justice Center.

When a person is fingerprinted at a jail, those fingerprints are generally sent to state authorities and the FBI to check for outstanding warrants.  Federal law mandates information sharing between the FBI and the Department of Homeland Security, which oversees ICE.  This is how detainers get lodged — a person gets booked into a jail, his information makes its way to ICE, and if ICE believes the person is subject to deportation, it asks the jail to keep the person in custody for up to forty-eight hours beyond his release date.

But Fleming says ICE often wrongly identifies people for removal.  The agency’s database has a 30 percent error rate, the NIJC has found.  Sometimes that error is a misspelled name, other times the person is not listed as having status when really she really does.  The ACLU found that in Miami, over two years, ICE issued detainers for 420 people who were U.S. citizens.

HB 370 says sheriffs don’t have to honor detainers for anyone who has proof of citizenship or lawful immigration status, but Fleming says not everyone has that proof, nor are local deputies equipped to navigate immigration law to decide if someone has legal status.  Approximately five million people in the U.S. have gained citizenship either because their parents were citizens when they were born or their parents naturalized while they were still minors, Fleming points out.  They aren’t required to obtain documents proving their citizenship.

Under HB 370, sheriffs could be held liable for complying with an ICE detainer request for a legal resident or citizen.  But those requests are problematic even if the target is undocumented.  Several federal courts have found that holding people on detainers violates their Fourth Amendment rights against unreasonable searches and seizures.  Others have found local officers don’t have the authority to hold people under detainers, and still others have ruled that detainers exceed ICE’s authority.

A lot of these arguments come back to the fact that detainers are not warrants.  Courts have ruled that holding people on a detainer after they would have otherwise been released — for example, by posting bond or having their charges dropped — constitutes a new arrest under the Fourth Amendment, and detainers don’t constitute probable cause for an arrest.

Detainers don’t come with judicial warrants — meaning a third party hasn’t signed off on ICE’s claim that a person is deportable.  Instead, they typically come with administrative warrants, in which only an ICE officer attests that someone is removable.  The Immigration and Naturalization Act says that only ICE can make arrests based on administrative warrants.  So when local law enforcement gets a detainer request, deputies are, in effect, getting a request from the feds to make a warrantless arrest based solely on the feds’ say-so.

The INA also says that in order to make a warrantless immigration arrest, there needs to be probable cause that someone is deportable and that he’s likely to escape before a warrant can be obtained for his arrest, which is tricky — and, in the opinion of an Illinois court, virtually impossible — for someone already locked up in a local jail, as the subjects of these detainers would be.

If there’s no determination that a person is likely to flee, the case doesn’t meet ICE’s standard for a warrantless arrest.  And the U.S. Supreme Court has said — in striking down parts of a 2010 Arizona law similar to HB 370 — that local cops can’t have broader immigration arrest authority than ICE does.

In short, Fleming says, ICE is asking local cops to make an arrest they can’t make — and that ICE isn’t empowered to make either.

In the Arizona case, the Supreme Court did let stand a controversial provision requiring law enforcement officials to determine the immigration status of anyone they stop or arrest who they suspect is removable.  North Carolina law currently requires jail administrators to attempt to verify the status of anyone charged with a felony; HB 370 broadens that mandate to all criminal offenses.

Several provisions in HB 370 are closely patterned after a 2017 Texas law known as SB 4, which, like HB 370, requires law enforcement to determine individuals’ immigration status and imposes steep financial penalties for not honoring detainers.  Last year, a federal appeals court upheld those aspects of the law, finding — contrary to most other court rulings — that detainers provide sufficient probable cause for detention.

Even if the Supreme Court eventually comes to the same conclusion, Fleming says HB 370 runs afoul of the state constitution.  North Carolina requires police to get a warrant signed by a judge in order to arrest someone.  If they make a warrantless arrest, a defendant must be brought before a judge to review whether probable cause exists.

“None of that happens in the context of immigration detainers and administrative warrants,” Fleming says.

Asked about the governor’s intentions, a spokesperson says Cooper has “serious concerns about taking away local authority and making it harder for local law enforcement to do their jobs,” but that he would “review any legislation that comes to his desk before making a decision.”

Whatever the political implications, Moises Serrano, the political director at El Pueblo, a Raleigh-based Latinx community organization, says that lawmakers designed HB 370 to send a message to the state’s immigrants: “They are not wanted here, that they’re not welcome here.  We’re trying to make the lives of immigrants so hard here that they will self-deport.  This is a tool of psychological warfare.”

Contact staff writer Sarah Willets by email at [email protected], by phone at 919-286-1972, or on Twitter @sarah_willets.

In a press conference this morning, an Immigration and Customs Enforcement official said North Carolina counties hit by ICE raids this week should expect more of the same.

Atlanta field office director Sean Gallagher estimated the agency had detained about two hundred people across the state this week, not including about thirty picked up at a Sanford gun manufacturing plant.

“I would say the new normal is you will see more visible ICE presence out in the communities,” Gallagher said.  “Two hundred cases a week, probably not — but you will see an increase in enforcement.”

Out of those two hundred, Gallagher said about fifty had criminal convictions, forty were facing pending criminal charges, and fifty had already been ordered removed from the country.  Sixty were “at-large” arrests of people encountered by ICE agents while carrying out targeted enforcement aimed at taking specific people into custody.

Those at-large arrests were “a product of some of the policies that have been enacted within the state with respect to Mecklenburg County, Durham, Wake County, as well as Orange County,” Gallagher said.

Usually, he continued, ICE makes about fifty at-large arrests per week in the region under his supervision, which includes Georgia, North Carolina, and South Carolina.

“I think the uptick you’ve seen is the direct result of some of the dangerous policies that some of our county sheriffs have put into place, and it really forces my officers to go out on the street and conduct more operations out in the community, at courthouses, at residences, doing traffic stops,” he said.  “This is a direct correlation between the sheriffs’ dangerous policies of not cooperating with ICE and the fact that we have to continue executing our important law enforcement mission.”  (Earlier in the press conference, Gallagher denied ICE agents had been ensnaring people via traffic stops.)

Gallagher then went on to list specific cases of individuals released by authorities in Wake, Durham, Orange, and Mecklenburg, saying those sheriffs were endangering public safety.

Voters in several North Carolina counties resoundingly rejected local law enforcement cooperation with ICE by electing new sheriffs who vowed not to participate in ICE programs.

In November, Wake County elected a new sheriff, Gerald Baker, who ended his agency's involvement in the federal 287(g) program, which deputizes local officers to carry out some immigration enforcement duties.  Mecklenburg County’s newly elected sheriff, Garry McFadden, made the same move in December.

While Durham police ended its involvement in 287(g) years ago, Sheriff Clarence Birkhead promptly issued a directive telling jail staff not to honor ICE detainer requests without an accompanying judicial warrant or order for arrest.  ICE detainers, also known as ICE holds, are requests from ICE asking that a person in local jail custody be held beyond the time they would have otherwise been released — for example, by posting bond — so that ICE can assume custody.

In under three years, more than a hundred people went directly into ICE custody from the Durham jail as a result of detainers, the INDY reported in September, including a Jordan High School student who was detained and deported after a charge against him for breaking into a car was dropped.  Multiple courts have found detainers unconstitutional.

“If the federal government wants to criticize us for not honoring detainers, I'm OK with that, because I think the community at large will be appreciative of that approach and appreciate us being good stewards of local resources," Birkhead told the INDY while he was running for sheriff.  “There’s nothing in the federal law that says I must participate.”

Orange County Sheriff Charles Blackwood has had the same policy toward detainers as Durham since 2014 and does not participate in 287(g).

While Gallagher said “this isn’t about fighting with the sheriffs,” he said the lack of cooperation from those agencies is forcing ICE to send out teams of agents into communities, which is causing people not originally targeted to be swept up as well.

It’s unclear exactly how many people were detained in what jurisdiction.  Eliazar Posada, a community engagement and advocacy manager with El Centro Hispano, said Thursday the organization was assisting the families of three individuals detained in Durham, including one person detained after taking a child to school.  El Centro Hispano plans to raise funds to help those affected and is helping connect families to legal help.

“We’ve seen these tactics used time and time again,” Posada told the INDY.

Separately, Durham City Council member Javiera Caballero said Thursday that a man was detained while taking his child to Hillside High School.  On Friday morning, video surfaced reportedly showing a man being detained near downtown Durham; Gallagher said during the press conference agents had arrested a man in Durham who had been released from jail in Orange County.

“If you go to neighborhoods where the majority of residents are Latino or immigrants, you will see the streets are empty,” organizer Ivan Almonte told the Durham City Council Thursday.  “People don’t want to leave their places.  They have cut off activities.  If you go to Latino businesses, the owners are saying no one is coming to buy stuff.  They're really afraid.  A lot of parents refuse to send their kids to school because they don’t feel safe.”

Update 01: Wake County Sheriff Gerald Baker issued the following statement in response to ICE Atlanta Field Office Director Sean Gallagher's remarks:

Statement_Sheriff Baker Res... by on Scribd

Update 02: The Durham County Sheriff's Office sent out the following press release responding to Gallagher's comments:

"Sheriff Clarence Birkhead, the Durham County Sheriff stands by his decision to end the practice of honoring ICE detainers.  Detainers are a request from Immigration and Customs Enforcement or ICE made of detention centers to hold suspected undocumented immigrants 48 hours beyond the time they would legally be allowed to be released after posting bond or serving a sentence.  

ICE is notified of an individuals presence in a facility when they are entered into a database accessible by all law enforcement.  Once an individual is processed into the detention center ICE has the opportunity to obtain appropriate court orders or warrants to take someone into custody.  We will comply with these legal court orders.

In response to a statement made by immigration officials today Sheriff Birkhead offers the following statement: 'It is unfortunate that ICE is now becoming more active in North Carolina, specifically in Durham.  The recent actions of ICE agents are making persons, in our community, afraid of law enforcement.  The decision I made to not honor ICE detainers was in part to help ALL of Durham’s people feel safe and encourage our residents to feel like they can trust my deputies, and law enforcement in general.   And, if ICE agents presented a warrant, which is based on probable cause, in my capacity as sheriff I would support such an action.'"

Democrats dominated Wake County's partisan races, beating out Republican challengers for the Board of Commissioners, district attorney, and sheriff races.

“We swept the race, and I think that really speaks to the job we’re doing and our acceptance with the voters,” said Wake County Commissioner Sig Hutchinson.

Nearly 58 percent of registered Wake voters cast ballots in the election.

As expected, Democrats maintained complete control of the Board of Commissioners, with newcomers Susan Evans and Vickie Adamson joining incumbents Jessica Holmes, Greg Ford, James West, Matt Calabria, and Sig Hutchinson.  Democrats cinched more than 60 percent of the vote in each contested race, blocking out Republican challengers David Blackwelder, Alex Moore, Kim Coley, Greg Jones, and Frann L. Sarpolus.

It may be the end of the immigration program 287(g) in Wake County, with Democrat Gerald Baker's 55 percent victory over longtime Republican incumbent sheriff Donnie Harrison.  Baker has pledged to end the controversial program, which partners local law enforcement with federal immigration authorities and has contributed to the deportation of more than fifteen hundred undocumented Wake County residents.

Democratic incumbent District Attorney Lorrin Freeman maintains her seat after gaining 63 percent of votes over Republican John Walter Bryant, while Democrat Blair Williams snagged the Wake County Clerk of the Superior Court race with 59 percent of votes over Republican challenger Jennifer Knox.

On the Board of Education — nonpartisan seats — Roxie Cash (a registered Republican), Heather Scott, Jim Martin, and Lindsay Mahaffey came out on top, joining uncontested candidates Monika Johnson-Hostler,  Keith A. Sutton, Christine Kushner, Kathy Hartenstine, and Bill Fletcher on the board.

On the nonpartisan Soil and Water Commission race, incumbent Jenna Wadsworth was reelected along with newcomer Nervahna Crew.

Additionally, voters overwhelmingly approved more than $1 billion in bonds, including a $548 million school construction bond, a $349 million Wake Tech bond, and a $120 million parks, greenways, and open space bond.

Wake County Sheriff Gerald Baker announced that his office will stop issuing pistol and concealed-carry permits until April 30 in an effort to reduce the spread of the coronavirus.

Baker said Tuesday that he knew his decision would cause problems for some Wake County residents, but the need to purchase a pistol in the midst of a pandemic “is not an emergency situation.”

The sheriff said the decision is more about public health than public safety.  His office saw a 250 percent increase in gun-permit applications last week.

A Sheriff’s Office spokesman said at a press conference that during this time last year the county averaged about 93 people a day seeking pistol permits.  That number shot up to 290 people lining up outside the public safety center each day to seek a permit to buy and carry a firearm.

Baker said his office “wants to stay in line with efforts to keep the coronavirus out of the [public safety] building.”

“All he has done with this arbitrary order is to prevent law-abiding citizens from exercising a right explicitly laid out in the state and federal constitutions,” pro-gun-rights Civitas Institute president Donald Bryson said in a statement.  “Sheriff Baker is pandering to a political base, and nothing in his order does anything to prevent unlawful use or ownership of firearms.

The ban will go into effect on Wednesday.  There is a backlog of 755 applications that currently need to be processed by the Wake County Clerk of Courts Office. Everyone else will have to wait.

Contact staff writer Thomasi McDonald at [email protected].

DEAR READERS, WE NEED YOUR HELP NOW MORE THAN EVER.  Support independent local journalism by joining the INDY Press Club today.   Your contributions will keep our fearless watchdog reporting and essential arts and culture coverage viable in the Triangle, coronavirus be damned.

As for the Boy Scout speech, tRump says the head of the Boy Scouts called him afterward to congratulate him (even though no record of any such call took place and he made a written apology for tRump's inappropriate sexual innuendo and political agenda.) Despite this obvious lie, tRump would, it's been reported, send cattle to China and send New Yorkers to someplace out west like Wyoming or wherever he thinks jobs will be created because - as he put it - people are afraid to leave their houses which he says they estimate were once worth $70,000 and are now worth nothing. Ok, so there's a plan. Also, in his own words, he is reported to have said: "Number one, they should go after the leakers in intelligence." I guess he means himself. But he doesn't stop there: "I don't mean the White House stuff where they're fighting over who loves me the most. Ok? It's just stupid people doing that." I couldn't agree more. It's just stupid people who say they love you. Sorry, Pickle, Sarah aka the Huckster Sanders and Kellyanne "Con"way... How Gerard Baker kept a straight face during his 45 minute interview with tRump is Pulitzer Prize winning stuff in itself. There should be a special category for it. tRump, of course, referred during this arduous task to Don Jr. as a "good boy" and the Boy Scout leader's comments regarding his speech as "the greatest ever made to them." It's the greatest story ever told. But he's also amazed at how many people live in other countries. That bit came out when asked about taxes, his relationships with foreign leaders and their countries' GDP. On calls to foreign leaders, he claims: "...unbelievable relationships. They like me. I like them. You know, it's amazing." Especially, I might add Macron who loves holding my hand. He just loves it... So, he calls "major --- major countries and the prime minister or president" and he says:

"How are you doing?" The answer is not the usual: "Fine. How are you?" Or even Click, as the phone goes dead. But rather, he claims the answer is: "Oh, I don't know, not well, Mr. President, not well." Such deference. So, our benevolent leader asks: "Well, what's the problem." He's so good at fixing things. That line belongs to an md or even better a plumber. The answer (in his mind anyway) is: "Oh, GDP 9 percent, not well." I have a fever of 103 and my drain is clogged. So tRump is saying to himself: "Here we are at like 1 percent, dying, and they're at 9 percent and they're unhappy." Then he goes on with how big these countries are (size matters of course): "...like 300 million people." They say: "Well, but the United States is large." This is beginning to remind me of a South Park episode with the Japanese who use the line of "You have such enormous penis" to get what they want from Americans. So if you can imagine the look on a normal minded person's face when asked by a POTUS the following question, as that POTUS says to the reporter: "And then you call places like Malaysia and Indonesia and you say, you know: ‘How many people do you have?’“ Ever hear of google? So, tRump adds: "And it's pretty amazing how many people they have." To top it off: "So China's going to be at 7 or 8 percent, and they have a billion-five right. So we should do really well." That makes sense. But, on the topic of why Americans aren't getting jobs (or aren't doing really well), he tops even himself. I will correct myself by saying it's not Wyoming, as I stated earlier in the piece. I'm just dreaming of wide open spaces. But that's closer than anything this guy ever said that made any sense. To cap this discussion on China and so on, he asks where do we have all the people and his answer is upper New York State. His solution is to have them move (like a cattle drive, no doubt) to places like Colorado, Iowa and Wisconsin. In his own words, again, as Forrest Gump would say: "You know, a lot of them don't leave because of their house. Because they say 'Gee, my house, I thought it was worth 70,000 (dollars) and now it's worth nothing.’" I agree with the reporter's sarcasm: 'It's Ok. Go, cut your losses, right?' Or, as I recall from previous tRump statements...I'm just about sick of winning, winning, winning, aren't you? That goes for his latest one hit wonder - Scaramucci. Another beautiful relationship, another bromance bites the dust. To borrow a phrase, it's amazing. Let's end by getting back to number one. Mueller (intelligence leaking aside) should go after this narcissist and his enablers.

The narcissists are running our country now. You need to understand what this means. Read and share this book today!

IN THE COMPANY OF NARCISSISTS: SOMEBODY ALWAYS PAYS