The Illinois TRUST Act: Putting the Handcuffs on Police

By Andrew R. Arthur on September 4, 2017

On August 28, 2017, Illinois Governor Bruce Rauner (R) signed Senate Bill (S.B.) 0031, also known as the "Illinois TRUST Act", into law. That law prevents any law enforcement agency or law enforcement official in Illinois from complying with Immigration and Customs Enforcement (ICE) immigration detainers and from stopping and detaining aliens because of their immigration status.

For purposes of that law, the phrase "law enforcement agency" refers to "an agency of the State or of a unit of local government charged with enforcement of State, county, or municipal laws or with managing custody of detained persons in the State", while the phrase "law enforcement official" applies to "any individual with the power to arrest or detain individuals, including law enforcement officers, county corrections officer[s], and others employed or designated by a law enforcement agency".

The law is careful to state that it should:

[N]ot be construed to prohibit or restrict any entity from sending to, or receiving from, the United States Department of Homeland Security or other federal, State, or local government entity information regarding the citizenship or immigration status of any individual under Sections 1373 and 1644 of Title 8 of the United States Code.

It also meticulously makes clear that nothing therein should:

[P]revent a law enforcement officer from contacting another law enforcement agency for the purposes of clarifying or confirming the nature and status of possible offenses in a record provided by the National Crime Information Center, or detaining someone based on a notification in the Law Enforcement Agencies Data Administrative System unless it is clear that request is based on a non-judicial immigration warrant.

Importantly, as the law firm Holland & Knight states in its analysis:

There is no express provision of the Act that refers to or limits the authority of a home rule unit of government with respect to immigration-related law enforcement activities. Home rule units can thus consider adopting policies or local ordinances that are not consistent with the Act, provided that any local initiative is truly limited to local government and affairs (and thus remaining within the general ambit of home rule authority).

The Illinois Municipal League has described the authority of home rule units under the state's constitution:

In Illinois, home rule is the State constitutional authority of local governments to self-govern provided the General Assembly did not explicitly limit that power or maintain the exclusive exercise of authority in a specific area. Home rule municipalities "may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt" without specific statutory authority.


[H]ome rule municipalities have the power to self-govern in areas that are uniquely local in nature. Therefore, home rule municipalities in Illinois have the ability to regulate on any subject that is of local concern provided the regulation thereof is not limited or prohibited by federal or state statute or constitutional provision.

In an apparent attempt to obtain the voluntary compliance by home rule municipalities with its restrictions on detainers, section 15(d) of the Illinois TRUST Act provides that:

A law enforcement agency or law enforcement official acting in good faith in compliance with this Section who releases a person subject to an immigration detainer or non-judicial immigration warrant shall have immunity from any civil or criminal liability that might otherwise occur as a result of making the release, with the exception of willful or wanton misconduct.

The Chicago Tribune notes that this is a significantly amended version of the original S.B. 0031. As the paper states:

The original measure was an extravagant Christmas tree of a bill, decked with thou-shalt-nots directed at police officers, public schools and universities, health care facilities, state agencies and local governments.

There were prohibitions on what local police could say and with whom they could speak. There were instructions for judges to provide to criminal defendants who had opted to plead guilty. There were rules about who could provide legal assistance to immigrants and what they could or must say, rules about how notaries public could describe themselves on their stationery, rules against local governments allowing privately run detention centers within their borders.

Of course there was a 13-member state compliance board. And there was no way for a local government to opt out.

When the Chicago Tribune describes the earlier version of this bill as an "epic overreach", you know that it was particularly objectionable. But while the version that became law may be better by comparison, it is still a bad bill, and one that takes away a crucial tool for police to use to protect their communities from violent offenders.

Interestingly, the Tribune states:

What's left is a measure that would give immigrants some peace of mind as they go about their lives — working, shopping, paying taxes and contributing to their communities. It would promote trust between immigrants and police. In a letter to Rauner, several law enforcement leaders pointed out that crime victims and witnesses are reluctant to come forward for fear that they or a family member could be deported as a result. That means crimes go unreported, and residents are less safe.

There is no solid empirical evidence to back up the latter proposition: How do these "law enforcement leaders" measure the number of "crime victims and witnesses" who never appear? One could say that our border policies are successful because billions of aliens don't attempt to enter illegally with as much validity. Moreover, as I have noted elsewhere, there are protections for alien victims of many criminal offenses. Identifying them is the first step in enabling the laws Congress has passed to protect them to do so, and a public information campaign could allay any fears that they might have without releasing criminals on the street. Finally, although there may have been a cop somewhere who decided to call ICE (or the INS) on an alien victim, such cases would be so rare as to merit national attention, and none come to mind.

Instead, the "immigrants" to whom the TRUST Act gives "peace of mind" are, by definition, those suspected of criminal activity. They are the individuals whom law enforcement would encounter and detain long enough to assess their immigration statuses (or lack thereof). And, unless Illinois is holding innocent people in its jails (which should prompt a separate bill that I would support), the only people who would be detained are either criminals or suspected criminals; the criminal justice system exists exclusively to deprive such individuals of "peace of mind".

Governor Rauner is up for reelection next year, so his stance on this issue is somewhat understandable. This is an important election: If reelected, he will be the governor when Illinois redistricts after the 2020 census, and can work to bring balance to the Prairie State. There are two elements to every election: getting votes for yourself, and keeping your opponent from getting votes. A Republican who gets elected in deep blue Illinois is, by definition, politically savvy, and the implications of a veto of this legislation likely weighed in his analysis because it removed an issue that could have driven liberal voters to the polls. What remains to be seen, however, is whether conservative voters will hold the Illinois TRUST Act against Governor Rauner on Tuesday, November 6, 2018.