Mass. 'Public Safety' Office Seeks to Impede Immigration Enforcement

By Dan Cadman, September 16, 2014

A couple of weeks ago, an issue came to light in Massachusetts that once again highlights the fact that state and local officials continue to actively look for ways to impede federal laws where immigration enforcement is concerned.

This time, strangely enough, it was the person in charge of the Massachusetts Executive Office of Public Safety (EOPS), Andrea Cabral. One would think that Ms. Cabral should be spending her time thinking about ways to preserve and protect the public safety of the citizenry in that state, but apparently not so. She drafted a memorandum for the Massachusetts Sheriffs' Association that many sheriffs considered intimidating, suggesting as it did that if they honored immigration detainers filed against aliens arrested for criminal offenses, they would be violating the Fourth Amendment to the Constitution and thus subject to suit.

Confronted with the memorandum (which was never made public) by a journalist who was provided a copy, Governor Devall Patrick initially equivocated, and then dismissed it out of hand:

Journalist: And so you're not looking to block any sort of ICE detainers?

Governor: No. No. The law is the law. And I'm not looking to change that.

It seems unlikely to me that a senior official would send a memorandum to the state sheriffs' association without some kind of clearance from the governor's office. What comes to mind is the kind of trial balloon that aides often float on behalf of their bosses, giving them the protective cover of deniability to dismiss it if it doesn't get the hoped-for reaction, as apparently happened here.

But even with the governor's tactical retreat, it's worth taking just a moment to consider the memorandum, because the argument it contains is likely to raise its ugly head again. The essence is this: Cabral would have sheriffs believe that immigration detainers are invalid, even when filed with properly obtained alien arrest warrants, because under the federal immigration system such warrants are not issued by federal judges, but rather by administrative officials. Cabral goes on to count the number of types of officials authorized to issue such warrants. Apparently, in her constricted view, numbers count. That, of course, is ridiculous.

Using such a view, Massachusetts peace officers would be obliged to reject arrest warrants or detainers filed on behalf of police in other states — which also have a bewildering number and type of officials authorized to issue them. In fact, in a number of states, justices of the peace have authority to issue warrants. Almost inevitably, such justices are prominent businessmen and "pillars of the community", but they are not lawyers. They hold their justice positions part-time, and earn their livings as proprietors of tire stores, owners of franchise restaurants, and the like. Would Cabral suggest that their warrants (and therefore the detainers) should be ignored simply because they don't comport with her notion of how the system should work? I doubt she would take that position (or be allowed to take it), knowing the negative reciprocity that would ensue when other states refused to honor Massachusetts warrants and detainers, to the consternation of law enforcement agencies throughout the commonwealth.

Then, of course, there is the thorny problem of state parole boards, including the one in Massachusetts, which, interestingly enough, operates under the executive jurisdiction and authority of the director of EOPS: Ms. Cabral.

Like immigration warrants, parole violation warrants are issued by these administrative boards, not by jurists.

Is Ms. Cabral arguing that her own subordinates should be ignored by state law enforcement authorities? Should parole violators walk free because the warrants are legally inadequate and the detainers implicate the Fourth Amendment? No one would take such an argument seriously.

That, ladies and gentlemen, is why the governor should ensure a decent burial for this inept and seriously flawed piece of legal scholarship — not because the trial balloon proved to be made of lead and didn't fly as hoped.