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Jim Driscoll at community forum

Coconino County Sheriff Jim Driscoll speaks during a community forum in 2017. Driscoll has defended his office's compliance with federal requests to detain inmates suspected of being undocumented for an additional 48 hours beyond their release date. A lawsuit has been filed challenging the constitutionality of that jail policy. 

Officers at the Coconino County jail have long honored requests from federal immigration officials to detain inmates suspected of being undocumented immigrants for up to two days longer than what their local charges required.

The additional detainer period is meant to give agents with Immigration and Customs Enforcement, or ICE, time to take custody of someone suspected of being in the country illegally.

But now a class-action lawsuit challenging the constitutionality of that jail policy is headed to federal district court, making for a case that could have implications for local law enforcement policies across the state.

The lawsuit was filed in March by Coconino County resident Guillermo Tenorio-Serrano and names as defendants Coconino County Sheriff Jim Driscoll, Coconino County Jail Commander Matt Figueroa and the members of the Coconino County Board of Supervisors, who also serve as the Coconino County Jail District’s Board of Directors.

Tenorio-Serrano has been in jail since December after he was arrested on misdemeanor charges related to driving under the influence. The day after he was arrested, the Flagstaff Justice Court set the 32-year-old’s bail at $2,000.

But after he was booked into jail, jail policy requires staff to notify federal immigration officials of any detainee suspected of being undocumented. ICE was notified that Tenorio-Serrano was in the jail and sent over an administrative warrant and a request for local authorities to detain him for 48 hours past when he should be released for his local charges. The request stated there is probable cause to believe Tenorio-Serrano is “a removable alien.”

Though he still has the option, Tenorio-Serrano has not posted bail due to the possibility that if he did so he would be detained for the extra two days during which time he could be taken into custody by ICE.

In Coconino County, the detainer requests are not uncommon. 

According to the past three years of data, the Coconino County Sheriff’s Office receives an average of 76 ICE detainer requests per year. Jail policy requires that detention officers comply.

In defending the policy, Driscoll cited Arizona’s SB 1070, the controversial immigration legislation signed into law in 2010. The law mandates that local agencies generally cooperate with and assist in the enforcement of federal immigration laws.

“Cooperation to me is that a federal agency makes a request of us, I am going to try to comply with that. Is the request legal? That's for the courts to determine,” the sheriff said in a March interview.

CONSTITUTIONAL QUESTION

In her argument, however, Tenorio-Serrano’s attorney takes aim at the jail’s policy of complying with the ICE detainer requests, rather than the requests themselves.

Prolonging the detention of inmates for whom the jail receives ICE requests violates the Arizona Constitution and the Fourth and Fourteenth amendments of the U.S. Constitution, wrote Kathryn Mahady, immigration attorney with Aspey Watkins and Diesel of Flagstaff,  who is representing Tenorio-Serrano pro bono.

The Fourth Amendment prohibits unreasonable search and seizure by the government and the Fourteenth Amendment requires that all people receive equal protection under the laws.

Extending a criminal defendant's detention beyond the time they are required to be held for their original charge requires an independent probable cause, and presence in the United States without authorization is not a crime, Mahady wrote in the lawsuit.

Her firm had been hoping to challenge the county jail policy for years but before now hadn’t had the right case to do so, Mahady said in an interview.

“(The case) is overdue in our perspective,” she said.

In a statement issued Tuesday, the Coconino County Board of Supervisors, acting as the board of directors for the county jail district, said they see Tenorio-Serrano’s case as an opportunity to get a final ruling on the constitutionality of parts of SB 1070.

Though all are named as defendants, the jail district directors have split from Driscoll and Figueroa, with the two groups represented by separate attorneys. In response to questions about that move, county spokesman Matt Rudig said in an email that the board and the sheriff decided to take different approaches to the case.

The attorneys representing Driscoll and Figueroa work with the same firm hired by Maricopa County to defend former Sheriff Joe Arpaio in the multiple civil lawsuits filed against him. County Attorney Bill Ring is not representing either party.

In their response, attorneys for Driscoll and Figueroa stated, in part, that while the federal government cannot require that local governments assist in the enforcement of federal immigration law, “the State of Arizona can, and has, imposed such goals on its local law enforcement.”

In reference to the SB 1070 law, the response states “not only does Arizona law encourage cooperation with ICE, but it also prohibits any local officials and agencies from limiting or restricting the enforcement of federal immigration laws.”

LOCALS WEIGH IN

The Coconino County Sheriff’s Office has already received previous requests to revise the jail’s policy on honoring ICE detainers.

A group that includes the pro-immigrant coalition Keep Flagstaff Together has met with Driscoll several times about changing the policy and also presented to the Coconino County Board of Supervisors on the issue in February.

Although their hope was to resolve the issue through discussion and consultation, Keep Flagstaff Together volunteer Marcus Ford said the fact that the case is now in federal court means a ruling in Tenorio-Serrano’s favor could have an impact that goes well beyond Coconino County.

“I think it would be psychologically huge if a federal court says you can't be deported now if you get put in county jail,” Ford said. “I think people would feel more comfortable in their daily lives.”

Those in the immigrant community are “terrified” right now, said Robert Neustadt, another volunteer with Keep Flagstaff Together.

“People have told me they're afraid to leave the house,” Neustadt said. “They're afraid that something can go wrong and they can be turned over to ICE.”

The American Civil Liberties Union also sent the sheriff a 12-page letter in September outlining constitutional concerns with the jail policy.

“From the ACLU's standpoint, we hope this lawsuit will clarify something that has been wrong for many years,” said Billy Peard, a staff attorney for the American Civil Liberties Union of Arizona who authored the letter.

State Rep. Bob Thorpe has weighed in on the lawsuit as well. He contacted Flagstaff City Attorney Sterling Solomon about it last week. In an email sent to city council and managers, Solomon wrote that Thorpe told him he didn’t believe the city should be involved in the matter of the jail’s policy of compliance with ICE detainer requests and that if the Flagstaff City Council continued to stay involved he would file a complaint with the attorney general requesting an investigation of the city’s involvement.

The Flagstaff City Council is set to hear a proposed resolution from Keep Flagstaff Together on the jail district’s ICE detainer policy on April 17.

Emery Cowan can be reached at (928) 556-2250 or ecowan@azdailysun.com

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Environment, Health and Science Reporter

Emery Cowan writes about science, health and the environment for the Arizona Daily Sun, covering everything from forest restoration to endangered species recovery efforts.

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