1
STATE OF ILLINOIS
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
OGLE COUNTY
COMPLAINT
Plaintiffs Marcio Hernandez Rodriguez (“Mr. Hernandez”) and Artemio Castillo Arteaga
(“Mr. Castillo”) (“the Plaintiffs”), by their attorneys, for their complaint against defendant Ogle
County Sheriff Brian E. VanVickle (“Defendant”), allege as follows:
NATURE OF THE ACTION
1. This is a suit for damages and declaratory judgment against the Defendant for false
imprisonment, abuse of process, and violations of the Illinois TRUST Act, 5 ILCS 805/1 et seq.,
and the Illinois Constitution, Article I, § 6.
2. Mr. Hernandez and Mr. Castillo live quiet and productive lives, working to support
their families in Northern Illinois. The Defendant and those acting at his direction turned the lives
of these Illinoisans — and those of their families — upside down when they unlawfully detained
the Plaintiffs for federal immigration officials following arrests for minor traffic offenses.
MARCIO HERNANDEZ RODRIGUEZ
and ARTEMIO CASTILLO ARTEAGA,
Plaintiffs,
v.
BRIAN E. VANVICKLE, Ogle County
Sheriff,
Defendant.
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No.
FILED
OGLE COUNTY ILLINOIS
10/17/2019 3:50 PM
KIMBERLY A. STAHL
CLERK OF THE CIRCUIT COURT
2019CH81
2
3. Under the Illinois TRUST Act, law enforcement officers “shall not detain or
continue to detain any individual solely on the basis of any immigration detainer or non-judicial
immigration warrant.” 5 ILCS 805/15(a).
4. In violation of the Illinois TRUST Act, the Sheriff and his deputies “continued to
detain” Mr. Hernandez and Mr. Castillo even after they had posted bond for their alleged traffic
offenses, “solely on the basis of [an] immigration detainer” from U.S. Immigration and Customs
Enforcement (“ICE”). The Defendant’s actions also violated the Plaintiffs’ constitutional and
common law rights. The Plaintiffs seek redress for this willful and wanton violation of their
rights.
JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction under Article VI, § 9 of the Illinois
Constitution. This Court has personal jurisdiction over the Defendant under 735 ILCS 5/2-209(a)
and (b).
6. Venue is proper under 735 ILCS 5/2-101 because the transactions out of which the
causes of action arose took place in Ogle County.
PARTIES
7. Plaintiff Marcio Hernandez Rodriguez is, and at all times relevant was, a resident
of Rockford, Illinois.
8. Plaintiff Artemio Castillo Arteaga is, and at all times relevant was, a resident of
Ogle County, Illinois.
9. Defendant Brian E. VanVickle is, and at all times relevant was, the duly elected
Sheriff of Ogle County (“the Sheriff”). The Sheriff’s duties include the operation of the Ogle
County Jail and the training and supervision of those who work there. The Sheriff acts as a county
3
official, not a state official, with respect to the administration of the jail. The deputy sheriffs and
any other persons working under the supervision of the Sheriff were acting in the scope of their
employment at all relevant times.
FACTS
The Illinois TRUST Act
10. Communities, advocates, legislators, and many law enforcement officials have
long understood that enforcement of immigration laws by state and local law enforcement has
multiple adverse consequences, including those listed below.
11. Many immigrants, as well as their U.S. citizen family, friends, teachers, and
employers live in constant fear that an interaction with state or local law enforcement could lead
to deportation or other immigration consequences for themselves or for a loved one.
12. Some encounters with state and local law enforcement do in fact lead to
deportation or other immigration consequences, especially when officials stop or detain
individuals based on immigration status or at the request of immigration authorities.
13. Deportation has severe consequences, not only for the persons deported, but for
their families, businesses, and communities, any or all of which may include lawful permanent
residents and U.S. citizens.
14. Fear of law enforcement often deters immigrants, their loved ones, and associates
from reporting crimes of which they were victims or witnesses, and from cooperating with
criminal investigations.
15. Thus, allowing state and local law enforcement to arrest or detain individuals for
alleged civil immigration violations absent a valid judicial warrant compromises public safety.
16. No federal law requires state or local law enforcement to comply with ICE
4
requests to detain individuals or otherwise participate in immigration enforcement.
17. To address these issues, after years of negotiation, the Illinois TRUST Act, 5 ILCS
805/1, et seq. (the “TRUST Act” or the “Act”), became law on August 28, 2017, effective
immediately.
18. The Illinois TRUST Act provides, in relevant part:
(a) A law enforcement agency or law enforcement official shall not
detain or continue to detain any individual solely on the basis of any
immigration detainer or non-judicial immigration warrant or
otherwise comply with an immigration detainer or non-judicial
immigration warrant.
(b) A law enforcement agency or law enforcement official shall not stop,
arrest, search, detain, or continue to detain a person solely based on
an individual’s citizenship or immigration status.
5 ILCS 805/15.
19. A “law enforcement agency” is “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.” 5 ILCS 805/10. The Ogle County Sheriff’s Office is a
law enforcement agency under the Act.
20. A “law enforcement official” is “any individual with the power to arrest or detain
individuals, including law enforcement officers, county corrections officer, and others employed
or designated by a law enforcement agency.” 5 ILCS 805/10. The Sheriff, his deputies, and his
employees are law enforcement officials under the Act.
21. An immigration detainer is “a document issued by an immigration agent that is not
approved or ordered by a judge and requests a law enforcement agency or law enforcement
official to provide notice of release or maintain custody of a person.” 5 ILCS 805/10.
22. A Non-judicial immigration warrant is “a Form I-200 or I-205 administrative
warrant or any other immigration warrant or request that is not approved or ordered by a
5
judge. . . .” 5 ILCS 805/10.
23. The Sheriff has made a policy or practice of prolonging the detention of persons in
his custody who are otherwise eligible for release solely on the basis of ICE detainers or non-
judicial immigration warrants, in violation of the TRUST Act.
24. Upon information and belief, the Sheriff instructed his deputies and employees to
comply with immigration detainers in violation of the TRUST Act.
25. On information and belief, the Sheriff did not adequately train his deputies on their
duties under the TRUST Act.
Marcio Hernandez Rodriguez
26. Between approximately 7:00 p.m. and 8:00 p.m. on October 22, 2018, Mr.
Hernandez was driving home from work with six coworkers when an Ogle County Sheriff’s
Department patrol car pulled him over in Byron, Illinois.
27. A Sheriff’s deputy approached Mr. Hernandez’s car, and asked for a driver’s
license or other identification. Mr. Hernandez did not have a driver’s license because he had not
been in Illinois long enough to establish residency. He handed the deputy his Honduran passport.
28. The deputy also looked at the passports of all of the passengers who had one with
them. Later, a car from the Byron Police Department arrived, took the passengers to a gas station,
and left them there.
29. The Sheriff’s deputy brought Mr. Hernandez to his patrol car, told him he was being
arrested, and put him in handcuffs. He did not tell Mr. Hernandez the charge, nor did he read Mr.
Hernandez his Miranda rights.
30. A tow truck arrived and towed Mr. Hernandez’s car away.
31. The deputy drove Mr. Hernandez to the Ogle County Jail, in Oregon, Illinois.
32. When he arrived at the jail, a different Sheriff’s deputy, communicating through
6
computer translation, told him that she was going to call ICE, but did not say why. Mr. Hernandez
asked her not to call, but she told him that nothing would happen to him.
33. The deputy questioned Mr. Hernandez, but did not read him his Miranda rights. Mr.
Hernandez declined to answer the questions.
34. Mr. Hernandez tried to ask the deputy why he was there, but she would not give him
an answer.
35. Without explanation, the deputy took $500 from Mr. Hernandez’s wallet. He later
learned that the money was used to post bail at approximately 8:30 p.m. the night of his arrest.
36. After bond was posted, the Sheriff had no lawful grounds to continue to detain Mr.
Hernandez.
37. Nonetheless, the Sheriff continued to hold him in Ogle County Jail for three days,
until an ICE officer picked him up.
38. The ICE officer drove Mr. Hernandez to a jail near Peoria, where he was held for
two days. There, Mr. Hernandez was told that although he had not committed a crime, he was
being held because he was in the United States illegally.
39. Mr. Hernandez was transferred to another facility – he is not sure where – for
another two days. Finally, he was transferred to an ICE detention facility in Kenosha, Wisconsin.
40. Mr. Hernandez was held at Kenosha for approximately eighteen more days. An
immigration judge set bond on November 7, 2018. He posted bond immediately, but was not
released until November 11, 2018.
41. ICE drove Mr. Hernandez to Chicago and dropped him off.
42. Once Mr. Hernandez made his way back to Rockford, he picked up his car, which
had been towed away the night he was arrested at the request of the local police. Due to the fees
that accumulated while he was in detention, Mr. Hernandez had to pay $850 to get his car back.
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43. Mr. Hernandez lost approximately $3,000 in wages, incurred thousands of dollars
of expenses, and suffered severe emotional distress because of the Sheriff’s unlawful detention of
him.
Artemio Castillo Arteaga
44. Around 11 p.m. on Thursday, July 11, 2019, Mr. Castillo was driving home from
work along Highway 38 when an Ogle County Sheriff’s Deputy stopped him.
45. The deputy claimed that Mr. Castillo had been going 70 miles per hour in a 55
zone. Mr. Castillo was sure that he was driving within the speed limit, and in any case, the old
truck he was driving could not go faster than about 60 miles per hour.
46. The deputy asked Mr. Castillo for his driver’s license and insurance. He handed over
his driver’s license, but was unable to find his insurance card in the dark car.
47. Around this time, a second Ogle County Sheriff squad car arrived.
48. The deputy told Mr. Castillo that he was under arrest for driving without insurance
and on an expired license, even though Mr. Castillo’s license had not expired. The deputy did not
read Mr. Castillo his Miranda rights.
49. Mr. Castillo called his wife and asked her to meet him at the county jail.
50. The deputy drove Mr. Castillo to the Ogle County Jail in Oregon, Illinois.
51. Mr. Castillo’s wife was waiting at the jail when he arrived. The deputy who had
arrested him told him not to worry; he just needed to pay his bond of $250 and he could leave. Mr.
Castillo paid his bond at around 12:30 a.m. on July 12. He was told to sit down with his wife and
wait.
52. After Mr. Castillo posted bond, the Sheriff had no legal grounds to continue to detain
him.
53. After about fifteen minutes, a deputy behind the desk told Mr. Castillo that he had
8
a call from Immigrations and Customs Enforcement (ICE). When Mr. Castillo asked why ICE
had been contacted, he and another deputy looked at each other and smiled. One of the deputies
said they were just doing their job.
54. The ICE official on the phone asked Mr. Castillo questions, and Mr. Castillo
answered some of them. The deputies told him that ICE was arresting him and would come to the
jail to pick him up.
55. Mr. Castillo remained in the Ogle County Jail until an ICE official picked him up
on July 12, 2019, at approximately 7 a.m.
56. All told, the Sheriff unlawfully detained Mr. Castillo for approximately 6 or 7
hours after he posted bond and was entitled to release.
57. As a result of Defendant’s unlawful detention of him, Mr. Castillo suffered
injuries including economic losses and severe emotional distress.
The Sheriff was on notice of the TRUST Act’s requirements.
58. At the times that the Sheriff and his deputies unlawfully detained the plaintiffs, he
was on notice of the requirements of the TRUST Act.
59. The TRUST Act provides that “[b]y January 1, 2018, every law enforcement
agency shall provide guidance to its law enforcement officials on compliance with Section 15 of
this Act.” 5 ILCS 805/20.
60. Within weeks of the TRUST Act’s enactment, the Illinois Attorney General sent its
own guidance to all law enforcement agencies in Illinois (Ex. A, Guidance to Law Enforcement:
Authority Under Illinois and Federal Law to Engage in Immigration Enforcement, September 13,
2017 (the “2017 Guidance”)).
The 2017 Guidance advises Illinois law enforcement agencies and
officers that they “are in violation of state law and constitutional protections if they detain an
individual pursuant to an ICE detainer.” Ex. A at 2.
9
61. The 2017 Guidance further states: “Jurisdictions should understand that Illinois
law has not authorized Illinois law enforcement to engage in enforcement of federal civil
immigration law and that they may face civil liability for doing so.” Ex. A at 8.
62. The Attorney General issued updated guidance on July 12, 2019, the day after Mr.
Castillo’s arrest. Although the 2019 Guidance updates the law and makes other revisions, the
update is substantially the same as the 2017 Guidance as to the matters relevant to this case.
63. Neither the Sheriff nor the public at large has any legitimate legal or equitable
interest in continuing to violate the TRUST Act.
CLAIMS
COUNT I
Illinois TRUST Act, 5 ILCS 805/15
64. Paragraphs 1-63 are re-alleged and incorporated as if fully set forth herein.
65. Both Plaintiffs were entitled to release from Ogle County Jail after they posted
their respective bonds.
66. After the Plaintiffs paid the required bond for their alleged offenses, the Sheriff
continued to detain them solely based on immigration detainers or non-judicial immigration
warrants, in violation of the Illinois TRUST Act.
67. The Defendant’s violation of the Plaintiffs’ rights under the TRUST Act was
willful and wanton.
68. The TRUST Act was enacted to protect people like the Plaintiffs, who risk ICE
detention and deportation when local law enforcement agencies comply with ICE detainers or
non-judicial immigration warrants.
69. The TRUST Act was designed to prevent injuries like the Plaintiffs’, which arise
10
directly from their prolonged detention on the basis of an ICE detainer or non-judicial
immigration warrant.
70. Plaintiffs’ enforcement of their rights under the TRUST Act in this action is
consistent with the underlying purpose of the statute.
71. A private cause of action under the TRUST Act in this action is necessary to
provide an adequate remedy for violations of the statute.
72. The Plaintiffs suffered economic and other injuries, including emotional distress,
as a result of the Defendant’s willful and wanton violation of their rights under the TRUST Act.
73. The Plaintiffs have no adequate remedy at law to prevent the Sheriff from
continuing to violate the TRUST Act.
Request for Relief
WHEREFORE, the Plaintiffs respectfully request that this Court award them the following
relief:
A. Compensatory damages for the injuries the Plaintiffs suffered because of the
Defendant’s violation of their rights under the TRUST Act;
B. An injunction prohibiting the Defendant from detaining or continuing to detain any
person who has posted bond or is otherwise eligible for release, solely on the basis of any
immigration detainer or non-judicial immigration warrant or otherwise comply with an immigration
detainer or non-judicial immigration warrant, and/or on the basis of an individual’s citizenship or
immigration status; and
C. Such other further relief to which the Plaintiffs may be entitled as a matter of law or
equity, or that the Court determines to be just and proper.
11
COUNT II
False Imprisonment
74. Paragraphs 1-73 are re-alleged and incorporated as if fully set forth herein.
75. After Plaintiffs posted bond, the Defendant had no reasonable grounds to believe
that their continued detention was lawful.
76. The existence of immigration detainers or non-judicial immigration warrants for the
Plaintiffs was not a lawful reason for detaining them after they posted bond. Rather, the TRUST
Act expressly prohibited the Sheriff from continuing to detain them on that basis.
77. The Sheriff had no probable cause to believe that the Plaintiffs had committed any
other offenses that would justify their continued detention after they had posted bond.
78. The Sheriff unreasonably restrained the Plaintiffs’ liberty against their will.
79. The Sheriff’s unlawful restraint of the Plaintiffs constituted a common-law tort of
false imprisonment.
80. The Sheriff acted willfully and wantonly when he unlawfully detained the
Plaintiffs after they posted bond.
81. As a result of the Defendant’s willful and wanton false imprisonment of the
Plaintiffs, the Plaintiffs suffered economic and other injuries, including emotional distress.
Request for Relief
WHEREFORE, the Plaintiffs respectfully request that this Court award them the
following relief:
A. Compensatory damages for the injuries the Plaintiffs suffered because the
Defendant restrained them against their will without reasonable grounds to do so; and
B. Such other further relief to which the Plaintiffs may be entitled as a matter of law
12
or equity, or that the Court determines to be just and proper.
COUNT III
Abuse of Process
82. Paragraphs 1-81 are re-alleged and incorporated as if fully set forth herein.
83. Pretrial detention is a process used by a court to acquire or to exercise its
jurisdiction over a person.
84. The Sheriff continued to detain the Plaintiffs after they had posted bond and were
entitled to release, for the improper purpose of allowing ICE to take custody of them.
85. Holding the Plaintiffs for ICE was beyond the purview of the process of detention.
86. In the course of the regular prosecution of misdemeanor offenses, defendant are
released after they have posted bond.
87. By holding the Plaintiffs for the improper purpose of allowing ICE to take custody
of them after they had posted bond, the Sheriff abused the process of detention.
88. The Sheriff acted willfully and wantonly when they abused the process of
detention.
89. As a result of the Sheriff’s willful and wanton abuse of process against the
Plaintiffs, the Plaintiffs suffered economic and other injuries, including emotional distress.
Request for Relief
WHEREFORE, the Plaintiffs respectfully request that this Court award them the
following relief:
A. Compensatory damages for the injuries the Plaintiffs suffered because of the
Sheriff’s abuse of process; and
B. Such other further relief to which the Plaintiffs may be entitled as a matter of law
13
or equity, or that the Court determines to be just and proper.
COUNT IV
Illinois Constitution, Art. I, §6
90. Paragraphs 1-89 are re-alleged and incorporated as if fully set forth herein.
91. The Plaintiffs were entitled to be released from custody after they posted bond for
their alleged offenses, but the Defendant continued to detain them based on immigration detainers
or non-judicial immigration warrants.
92. The immigration detainers or non-judicial immigration warrants did not constitute
“probable cause, supported by affidavit particularly describing . . . the persons . . . to be seized,”
as required by Article I, section 6 of the Illinois Constitution.
93. The Sheriff’s continued detention of the Plaintiffs without a warrant based on
“probable cause, supported by affidavit particularly describing . . . the persons . . . to be seized,”
were unreasonable seizures violating Article I, section 6 of the Illinois Constitution.
94. The Sheriff acted willfully and wantonly when he violated Plaintiffs’ rights under
Article I, section 6 of the Illinois Constitution.
95. This violation of the Illinois Constitution entitles the Plaintiffs to a remedy,
including but not limited to damages.
96. The Plaintiffs have no adequate remedy at law to prevent the Sheriff from
continuing to violate the Illinois Constitution.
Request for Relief
WHEREFORE, the Plaintiffs respectfully request that this Court award them the
following relief:
A. Compensatory damages for the injuries the Plaintiffs suffered because the
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Defendant continued to detain them in violation of Article I, section 6 of the Illinois Constitution;
B. An injunction prohibiting the Defendant from detaining or continuing to detain any
person who has posted bond or is otherwise eligible for release, solely on the basis of any
immigration detainer or non-judicial immigration warrant or otherwise comply with an immigration
detainer or non-judicial immigration warrant, and/or on the basis of an individual’s citizenship or
immigration status; and
C. Reasonable attorneys' fees and costs pursuant to 740 ILCS 23/5(c)(2); and
D. Such other further relief to which the Plaintiffs may be entitled as a matter of law
or equity, or that the Court determines to be just and proper.
COUNT V
Declaratory Judgment, 735 ILCS 5/2-701
97. Paragraphs 1-96 are re-alleged and incorporated as if fully set forth herein.
98. After the Plaintiffs paid the required bond for their alleged offenses, The Sheriff
continued to detain them solely on the basis of immigration detainers or administrative warrants
and without a judicial warrant.
99. The Plaintiffs’ continued detention after they were entitled to release gives them an
interest in the proper construction of the Illinois TRUST Act.
100. The Illinois Declaratory Judgment statute, 735 ILCS 5/2-701, authorizes the Court
to “make binding declarations of rights, having the force of final judgments, whether or not any
consequential relief is or could be claimed, including the determination, at the instance of anyone
interested in the controversy, of the construction of any statute . . . and a declaration of the rights
of the parties interested.”
101. The Plaintiffs have a clear right to a declaratory judgment construing the Illinois
TRUST Act and declaring the Plaintiffs’ rights.
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Request for Relief
WHEREFORE, the Plaintiffs respectfully request that this Court enter a declaration that
the Defendant’s continued detention of the Plaintiffs after they had posted bond solely on the
basis of an immigration detainer or non-judicial immigration warrant violated the TRUST Act and
Article 1, Section 6 of the Illinois Constitution.
Dated: October 17, 2019 Respectfully submitted,
Marcio Hernandez Rodriguez and
Artemio Castillo Arteaga
By: _________________________
One of their attorneys
Everett J. Cygal (6215930)
D
avid Pi (6313723)
K
irstie Brenson (6329474)
Schiff Hardin, LLP
233 S. Wacker Dr., STE 7100
Chicago, IL 60606
(312) 258-5500
m
k
Rebecca K Glenberg (6322106)
Aarón Siebert-Llera (6300865)
Roger Baldwin Foundation of ACLU, Inc.
150 N. Michigan Ave., Suite 600
Chicago, IL 60601
(312) 201-9740
Joshua Karsh (6203096)
National Immigrant Justice Center
224 S. Michigan Ave., Suite 600
Chicago, IL 60604
(312) 660-1370
Exhibit A
STA
1818
AAA
AA
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1
A
o A
OF
IL
Guidance
to
Law
Enforcement:
Authority
Under
Illinois
and
Federal
Law
to
Engage
in
Immigration
Enforcement
September
13,
2017
LISA
MADIGAN
11A
NI"1'ORNEYGEN11.1(AL
Over
the
past
several
months,
officials
at
both
the
federal
and
state
level
have
implemented
changes
to
immigration
enforcement
policies
and
laws.
On
January
25,
2017,
President
Donald
Trump
issued
an
Executive
Order
entitled
"Enhancing
Public
Safety
in
the
Interior
of
the
United
States."
1
Further,
on
August
28,
2017,
Illinois
enacted
the
Illinois
Trust
Act,
a
statewide
law
that
clarifies
and
limits
the
authority
of
state
and
local
officers
to
enforce
federal
civil
immigration
law
or
cooperate
with
federal
immigration
authorities.
2
This
guidance
is
intended
to
provide
a
summary
of
the
President's
Executive
Order
and
describe
the
new
Illinois
Trust
Act.
Based
on
the
Executive
Order
and
the
Trust
Act,
this
guidance
will
explain
the
limitations
on
the
authority
of
local
and
state
law
enforcement
to
enforce
federal
immigration
law.
It
also
will
provide
guidance
to
municipalities
and
law
enforcement
about
how
the
Executive
Order
and
the
Trust
Act
may
affect
any
existing
policies.
Illinois
law
enforcement
agencies
and
officers
3
are
dedicated
to
protecting
the
communities
they
serve.
Promoting
public
safety
requires the
assistance
and
cooperation
of
the
community
so
that
law
enforcement
has
the
ability
to
gather
the
information
necessary
to
solve
and
deter
crime.
Law
enforcement
has
long
recognized
that
a
strong
relationship
with
the
community
encourages
individuals
who
have
been
victims
of
or
witnesses
to
a
crime
to
cooperate
with
the
police.
The
trust
of
residents
is
crucial
to
ensure
that
they
report
crimes,
provide
witness
statements,
cooperate
with
law
enforcement
and
feel
comfortable
seeking
help
when
they
are
concerned
for
their
safety.
Building
this
trust
is
particularly
crucial
in
immigrant
communities
where
residents
may
be
reluctant
to
engage
with
local
police
departments
if
they
are
fearful
that
such
contact
could
result
in
deportation
for
themselves,
their
family
or
their
neighbors.
This
is
true
of
not
only
undocumented
individuals
who
may
be
concerned
about
their
own
immigration
status,
but
also
citizens
who
may
be
worried
about
their
parents,
their
children
or
other
members
of
their
family
who
immigrated
to
the
United
States.
Police
officers
will
be
hindered
in
maintaining
public
safety
if
violent
crimes
go
unreported
or
witnesses
withhold
information.
4
For
the
safety
of
the
community
and
to
effectively
carry
out
their
responsibilities,
law
enforcement
have
an
interest
in
making
sure
that
their
policies
and
conduct
do
not
create
barriers
that
discourage
or
prevent
cooperation
from
the
immigrant
community
and
their
families.
'
Executive
Order
13768
of
January
25,
2017,
82
Fed.
Reg.
8799
(Jan.
30,
2017).
2
Illinois
Trust
Act,
Ill.
Public
Act
100-0463
(2017).
3
Throughout
this
guidance,
"Illinois
law
enforcement"
is
used
to
describe
state,
county,
and
local
law
enforcement
agencies
in
Illinois
such
as
municipal
police
departments,
county
sheriffs'
offices,
Illinois
State
Police
and
other
non-
federal
law
enforcement
authorities,
including
campus
police
departments
of
public
and
private
higher
education
institutions.
4
See
James
Queally,
Latinos
Are
Reporting
Fewer
Sexual
Assaults
amid
a
Climate
of
Fear
in
Immigrant
Communities,
LAPD
Says,
LOS
ANGELES
TIMES
(Mar.
21,
2017),
http://www.latimes.com/local/lanow/la-me-In-immigrant-crime-
reporting-drops-20170321-story.
html.
1
Executive
Summary
Federal
and
state
law
—
including
the
newly
enacted
Illinois
Trust
Act
—
limit
the
authority
of
Illinois
law
enforcement
agencies
to
engage
in
immigration
enforcement
activities.
All
law
enforcement
agencies
and
officers
must
be
aware
of
and
stay
within
these
limitations
when
conducting
law
enforcement
activities.
This
guidance
provides
an
overview
of
relevant
federal
and
state
law
and
may
be
a
useful
resource
to
Illinois
law
enforcement
agencies.
In
summary,
based
on
constitutional
protections,
federal
and
state
statutes,
and
policy
considerations,
Illinois
law
enforcement
officers
and
agencies:
•
Shall
not
stop,
search,
or
arrest
any
individual
on
the
sole
basis
that
the
individual
is
undocumented;
arrests
may
be
made
only
when
Illinois
law
enforcement
has
an
arrest
warrant
or
probable
cause
to
believe
that
a
criminal
offense
has
been
committed;
•
Are
in
violation
of
state
law
and
constitutional
protections
if
they
detain
an
individual
pursuant
to
an
ICE
detainer
beyond
his
or
her
normal
custody
release
date;
•
Are
not
required
to
participate
in
immigration
enforcement
activities
and
shall
treat
a
request
from
federal
immigration
authorities
for
access
to
detention
facilities
or
individuals
held
by
local
authorities
as
a
request,
rather
than
an
obligation;
•
Are
not
required
to
inquire
or
collect
information
about
individuals'
immigration
or
citizenship
status;
•
Should
consider
whether
any
internal
policies
regarding
sharing
immigration
status
information
with
federal
immigration
authorities
will
promote
trust
and
confidentiality
in
their
communities;
•
Should
consider
requiring
all
officers
to
identify
the
jurisdiction
they
represent
when
engaging
with
community
members
or
knocking
on
doors
to
encourage
transparency
and
cooperation
and
to
avoid
any
concern
or
confusion
about
whether
the
officers
work
for
federal
immigration
authorities.
2
I.
Immigration
Enforcement
Generally
Immigration
is
a
matter
of
federal
law.
5
Although
some
provisions
of
federal
immigration
statutes
are
criminal,
deportation
and
removability
are
matters
of
civil
law.
6
The
role
of
Illinois
law
enforcement
in
enforcing
the
civil
portions
of
immigration
law
is
limited.
7
a.
Immigration
enforcement
activities.
Illinois
enforcement
officers
are
permitted
to
enforce
federal
civil
immigration
law
only
in
those
limited
circumstances
where
state
and
federal
law
authorize
them
to
do
so.
There
are
only
two
circumstances
where
Illinois
enforcement
has
been
permitted
by
federal
law
to
engage
in
immigration
enforcement:
•
Illinois
law
enforcement
is
permitted
to
arrest
and
detain
an
individual
who
has
already
been
convicted
of
a
felony
and
was
deported,
but
returned
to
or
remained
in
the
United
States
after
that
conviction.
8
•
Illinois
law
enforcement
may
enter
into
a
formal
working
agreement
with
the
Department
of
Homeland
Security
(known
as
a
Section
287(g)
agreement)
to
assist
in
the
"investigation,
apprehension,
or
detention
of
aliens
in
the
United
States."
9
Pursuant
to
federal
law,
a
law
enforcement
agency
may
enter
into
any
such
agreement
only
to
"the
extent
consistent with
State
and
local
law."
1°
To
date,
there
are
no
existing
287(g)
agreements
in
Illinois."
Even
in
those
instances
where
federal
law
allows
enforcement
of
immigration
law,
there
is
no
express
or
inherent
authority
under
Illinois
law
that
permits
Illinois
law
enforcement
to
enforce
federal
immigration
law.
12
Further,
as
discussed
below,
Illinois
law
now
expressly
prohibits
5
Arizona
v.
United
States,
132
S.
Ct.
2492,
2498-99
(2012).
6
See
Gonzalez
v.
City
of
Peoria,
722
F.2d
468,
474
(9th
Cir.
1983)
(discussing
the
distinction
between
criminal
and
civil
federal
immigration
law).
7
Id.
8
8
U.S.C.
§
1252c.
9
8
U.S.C.
§
1357(g)
(Section
287(g)
of
the
Immigration
and
Nationality
Act).
lo
I
d
.
11
This
guidance
is
not
intended
to
address
Detention
Services
Intergovernmental
Agreements,
or
any
other
contracts
for
the
housing,
safekeeping
and
subsistence
of
federal
detainees,
entered
into
between
the
U.S.
Department
of
Justice
and
Illinois
law
enforcement agencies.
'See
People
v.
Lahr,
147
Ill.
2d
379,
382
(Ill.
1992)
(recognizing
that
the
authority
of
local
police
officers
to
effectuate
an
arrest
is
dependent
on
the
statutory
authority
given
to
them
by
the
political
body
that
created
them);
Gonzalez
v.
City
of
Peoria,
772
F.2d
468
(9th
Cir.
1983)
(requiring
that
state
law
grant
local
police
the
"affirmative
authority
to
make
arrests"
under
the
specific
provisions
of
the
Immigration
and
Nationality
Act
that
they
sought
to
enforce).
3
Illinois
law
enforcement
officials
from
engaging
in
certain
actions
to
ensure
that
they
do
not
enforce
federal
immigration
law
without
proper
legal
authority.
13
b.
Immigration
detainers
and
administrative
warrants.
The
Department
of
Homeland
Security
and
ICE
issue
"Immigration
Detainers"
or
"Hold
Requests"
when
they
have
identified
an
individual
in
the
custody
of
Illinois
law
enforcement
who
may
be
subject
to
a
civil
immigration
removal
proceeding.
14
An
Immigration
Detainer
is
a
notice
from
federal
authorities
that
an
individual
in
the
custody
of
Illinois
law
enforcement
may
be
subject
to
civil
immigration
proceedings,
and
it
asks
Illinois
law
enforcement
to
detain
the
individual
for
up
to
48
additional
hours
past
his
or
her
release
date
to
allow
federal
authorities
to
assume
custody.
15
On
March
24,
2017,
ICE
issued
a
new
policy
establishing
that
all
detainer
requests
(Form
I
-247A)
will
be
accompanied
by
one
of
two
forms
signed
by
an
ICE
immigration
officer:
either
(1)
Form
1-200
(Warrant
for
Arrest
of
Alien)
or
(2)
Form
1-205
(Warrant
of
Removal/Deportation).
16
These
forms
are
administrative
warrants
signed
by
ICE
officers
that
authorize
other
ICE
officers
to
detain
an
individual.
They
are
not
criminal
warrants
issued
by
a
court
and
they
do
not
constitute
individualized
probable
cause
that
an
individual
has
committed
a
criminal
offense.
Similarly,
Illinois
law
enforcement
is
not
authorized
to
arrest
or
detain
an
individual
based
on
the
previously
issued
Form
I
-247D
(Immigration
Detainer
—
Request
for
Voluntary
Action),
Form
I
-247N
(Request
for
Voluntary
Notification
of
Release
of
Suspected
Priority
Alien)
or
Form
I
-247X
(Request
for
Voluntary
Transfer).
Only
federal
officers
have
the
authority
to
arrest
an
individual
for
violation
of
civil
immigration
law
without
a
criminal
wan
-
ant.
17
Even
if
the
individual
may
be
subject
to
removal
because
he
or
she
was
convicted
of
a
criminal
offense,
the
removal
proceeding
and
determination
(through
an
order
of
removal
issued
by
a
civil
court)
is
a
matter
of
civil
immigration
law.
c.
Sharing
information
with
federal
immigration
authorities.
Under
federal
law,
no
state
or
local
law
or
policy
may
prohibit
any
government
entity
or
official
from
sharing
information about
the
immigration
status
of
an
individual
with
federal
authorities.
18
As
will
be
discussed
further
below,
this
federal
law
does
not
require
Illinois
law
13
This
guidance
contains
a
review
of
federal
and
state
law.
It
is
recommended
that
Illinois
law
enforcement
agencies
further
consult
with
any
local
ordinances
that
may
cover
the
topics
discussed
herein.
"
See
8
C.F.R.
§
287.7;
U.S.
Immigration
and
Customs
Enforcement,
Policy
No.
10074.2
"Issuance
of
Immigration
Detainers
by
ICE
Immigration
Officers,"
(March
24,
2017),
available
at
http://bitly/2q0QEJW.
15
See
United
States
v.
Abdi,
463
F.3d
547,
551
(6th
Cir.
2006).
16
U.S.
Immigration
and
Customs
Enforcement,
Policy
No.
10074.2
"Issuance
of
Immigration
Detainers
by
ICE
Immigration
Officers,"
(March
24,
2017),
available
at
http://bitly/2q0QEJW.
17
Arizona,
132
S.
Ct.
at
2505-06;
8
U.S.C.
§
1357.
18
8
U.S.C.
§
1373.
4
enforcement
to
share
citizenship
or
immigration
status
information
with
federal
authorities
in
any
circumstance;
all
data
sharing
of
this
kind
by
Illinois
law
enforcement
is
completely
voluntary.
II.
Executive
Order
13768
of
January
25,
2017
Executive
Order
13768
("the
Order")
addresses
those
jurisdictions
that
have
limited
the
ability
of
local
law
enforcement
to
share
information
about
the
citizenship
and
immigration
status
of
individuals
with
federal
immigration
authorities.
19
Specifically,
the
Order
authorizes
the
Attorney
General
of
the
United
States
and
the
Secretary
of
the
Department
of
Homeland
Security
to
"ensure
that
jurisdictions
that
willfully
refuse
to
comply
with
8
U.S.C.
1373
(sanctuary
jurisdictions)
are
not
eligible
to
receive
Federal
grants,
except
as
deemed
necessary
for
law
enforcement
purposes."
2°
Under
the
Order,
the
Secretary
has
the
authority
and
discretion
to
designate
a
jurisdiction
as
a
"sanctuary
jurisdiction."
The
Order
does
not
define
"sanctuary
jurisdictions,"
although
a
memo
issued
by
U.S.
Attorney
General
Jeff
Sessions
stated
that
"the
term
'sanctuary
jurisdiction'
will
refer
only
to
jurisdictions
that
willfully
refuse
to
comply
with
8
U.S.C.
1373"
by
prohibiting
law
enforcement
or
other
government
employees
from
sharing
information
about
individuals'
immigration
status
with
federal
authorities.'
The
memo
further
clarified
that
the
Order
is
only
intended
to
affect
grants
from
the
Department
of
Justice
and
Department
of
Homeland
Security
that
explicitly
reference
compliance
with
8
U.S.C.
§
1373
as
a
condition
of
the
grant.
However,
on
April
25,
2017,
a
federal
court
entered
a
preliminary
injunction
that
applies
nationally
to
the
provision
of
the
Executive
Order
that
disqualifies
"sanctuary
jurisdictions"
from
receiving
federal
grants.
22
Therefore,
the
federal
government
currently
may
not
enforce
this
particular
provision
against
any
jurisdiction.
23
The
Order
also
revokes
the
Obama
Administration's
priorities
for
enforcement,
known
as
the
Priority
Enforcement
Program
(PEP),
and
revives
an
earlier program
called
Secure
Communities.
Under
PEP,
U.S.
Immigration
and
Customs
Enforcement
(ICE)
agents
were
directed
to
seek
a
transfer
of
an
undocumented
immigrant
in
the
custody
of
state
or
local
law
enforcement
only
if
the
alien
posed
a
demonstrable
risk
to
national
security
or
was
convicted
of
specific
criminal
offenses.
24
Under
the
Secure
Communities
program
reinstated
by
the
Order,
the
Secretary
of
Homeland
Security
will
prioritize
removal
of
individuals
who:
have
been
convicted
19
Executive
Order
13768
of
January
25,
2017,
82
Fed.
Reg.
8799
(Jan.
30,
2017).
20
Id
at
8801
(Sec.
9(a)).
21
Memorandum
from
The
Attorney
General,
"Implementation
of
Executive
Order
13768
'Enhancing
Public
Safety
in
the
Interior
of
the
United
States,"
May
22,
2017,
available
at
https://www.justice.gov/opa/press-
release/file/968146/download.
22
Cty.
of
Santa
Clara
v.
Trump,
No.
17—cv-574,
2017
WL
1459081
(N.D.
Cal.
Apr.
25,
2017)
(an
order
denying
the
federal
government's
motion
to
reconsider
the
preliminary
injunction
and
to
dismiss
plaintiffs'
claims
was
entered
on
July
20,
2017).
23
Id.
24
Memorandum
from
Jeh
Johnson,
Secretary
of
the
U.S.
Department
of
Homeland
Security,
"Secure
Communities,"
Nov.
20,
2014,
available
at
http://bit.ly/29oZZk5
(hereinafter
"Memo
from
Jeh
Johnson").
5
of
any
criminal
offense;
have
been
charged
with
any
criminal
offense;
have
committed
acts
which
constitute
a
chargeable
criminal
offense;
have
engaged
in
fraud
in
connection
with
any
matter
before
a
governmental
agency;
have
abused
any
program
for
the
receipt
of
public
benefits;
are
subject
to
a
final
order
of
removal;
or
pose
a
risk
to
public
safety
or
national
security.
25
Illinois
law
enforcement
should
anticipate
increased
enforcement
efforts
by
federal
authorities
under
these
broader
priorities.
This
may
include
an
increase
in
the
number
of
ICE
detainer
requests
issued
to
Illinois
law
enforcement
following
National
Crime
Information
Center
(NCIC)
background
checks
for
individuals
in
the
custody
of
Illinois
law
enforcement.
However,
these
federal
priorities
do
not
create
or
expand
any
authority
for
Illinois
law
enforcement
to
enforce
federal
immigration
law.
III.
The
Illinois
Trust
Act,
Effective
August
28,
2017
The
Illinois
Trust
Act
expressly
states
that
Illinois
law
"does
not
currently
grant
State
or
local
law
enforcement
the
authority
to
enforce
federal
civil
immigration
laws."
26
Specifically,
the
Trust
Act
prohibits
Illinois
law
enforcement
from
(1)
detaining
or
continuing
to
detain
any
individual
solely
on
the
basis
of
an
immigration
detainer
or
non
judicial
immigration
warrant,
or
(2)
otherwise
complying
with
an
immigration
detainer
or
non
judicial
immigration
warrant.
27
This
means
that
an
Illinois
law
enforcement
agency
cannot
keep
a
person
in
its
custody
only
because
it
received
an
immigration
detainer
or
non
-judicial
immigration
warrant.
If
the
Illinois
law
enforcement
agency
does
not
have
probable
cause
or
a
judicial
warrant
to
continue
to
hold
the
person,
it
must
release
the
person.
Probable
cause
is
not
created
by
any
request
from
federal
immigration
authorities.
Consequently,
Illinois
law
enforcement
must
deny
any
requests
from
federal
immigration
authorities
—
such
as
ICE
or
U.S.
Customs
and
Border
Protection
(CBP)
—
for
assistance
to
detain
an
individual
solely
on
the
basis
of
an
immigration
detainer
or
non
-judicial
immigration
warrant.
Additionally,
pursuant
to
the
Trust
Act,
an
Illinois
law
enforcement
officer
shall
not
stop,
arrest,
search,
detain,
or
continue
to
detain
a
person
solely
based
on
his
or
her
citizenship
or
immigration
status.
28
Therefore,
an
officer
who
searches
or
arrests
a
person
merely
because
the
person
is
undocumented
is
committing
an
unlawful
search
or
arrest.
The
Trust
Act
makes
clear
that
the
above
prohibitions
do
not
apply
if
the
Illinois
law
enforcement
officer
is
presented
with
a
valid,
enforceable
judicial
warrant.
An
officer
who
releases
25
82
Fed.
Reg.
8799,
8800
(Jan.
30,
2017);
see
also
Memorandum
from
John
Kelly,
Secretary
of
the
U.S.
Department
of
Homeland
Security,
"Enforcement
of
the
Immigration
Laws
to
Serve
the
National
Interest,"
Feb.
20,
2017,
available
at
http://bit.ly/2miirQd
(hereinafter
"Memo
from
John
Kelly").
26
Ill.
Public
Act
100-0463,
§
5
(2017).
27
1d.
§
15(a).
28
Id.
§
15(b).
6
a
person
in
accordance
with
the
Trust
Act
is
immune
from
any
civil
or
criminal
liability
that
could
result
from
any
acts
committed
by
the
person
who
was
released,
as
long
as
the
officer
acted
in
good
faith
and
did
not
commit
willful
or
wanton
misconduct.
29
IV.
Limited
Authority
of
Illinois
Law
Enforcement
to
Enforce
Federal
Civil
Immigration
Law
Even
if
not
explicitly
prohibited
by
the
Trust
Act,
local
law
enforcement's
role
in
the
enforcement
of
immigration
law
in
Illinois
is
limited.
Specifically,
local
law
enforcement
is
not
required
to
engage
in
immigration
enforcement;
has
no
authority
to
detain
an
individual
pursuant
to
a
federal
administrative
warrant;
has
no
authority
to
detain
an
individual
pursuant
to
an
ICE
detainer
request;
and
is
under
no
affirmative
legal
obligation
to
share
any
information
about
individuals
in
its
custody
with
federal
immigration
authorities.
Importantly,
local
law
enforcement
officers
cannot
arrest
an
individual
for
a
violation
of
a
federal
law
without
a
warrant
unless
state
law
has
granted
them
authority
to
do
so.
3
°
Illinois
law
does
not
authorize
Illinois
law
enforcement
officers
to
arrest
an
individual
for
violating
federal
immigration
law.
Further,
Illinois
law
now
prohibits
Illinois
law
enforcement
from
arresting
a
person
solely
based
on
his
or
her
immigration
status.
31
a.
Federal
law
does
not
require
Illinois
law
enforcement
agencies
to
participate
in
enforcement
of
federal
civil
immigration
law.
The
federal
government
cannot
require
Illinois
law
enforcement
to
enforce
federal
law.
32
Any
requests
by
the
federal
government
to
participate
in
immigration
enforcement
activities
must
be
viewed
as
requests
for
voluntary
cooperation.
As
a
result,
Illinois
law
enforcement
agencies
bear
the
responsibility
for
the
consequences
of
their
decision
to
comply
with
such
a
request.
33
Further,
any
authorization
from
the
federal
government
for
Illinois
law
enforcement
to
enforce
federal
law
is
only
effective
if
it
is
accompanied
by
authority
under
state
law
or
is
not
prohibited
29
Id.
§
15(d).
3°
Arizona
v.
United
States,
132
S.
Ct.
2492,
2509-10
(2012)
("Authority
of
state
officers
to
make
arrests
for
federal
crimes
is,
absent
federal
statutory
instruction,
a
matter
of
state
law")
(citing
United
States
v.
Di
Re,
332
U.S.
581,
589
(1948)).
See
also
Lunn
v.
Commonwealth,
78
N.E.3d
1143
(Mass.
2017)
(finding
no
authority
in
Massachusetts
common
or
statutory
law
that
authorizes
arrests
for
federal
civil immigration
violations
and
holding
that
court
officers
do
not
have
the
authority
to
detain
an
individual
solely
on
the
basis
of
a
civil
immigration
detainer);
Immigration
and
Naturalization
Act,
8
U.S.C.
§
1252c
(authorizing
State
and
local
law
enforcement
officials
to
arrest
and
detain
an
alien
who
is
illegally
present
and
has
been
previously
convicted
of
a
felony
"to
the
extent
permitted
by
relevant
State
and
local
law").
31
725
ILCS
5/107-2
(describing
the
circumstances
for
arrest
by
law
enforcement).
32
Printz
v.
United
States,
521
U.S.
898,
923-24
(1997)
(finding
that
the
10th
Amendment
prohibits
the
federal
government
from
compelling
the
States
to
enact
or
administer
a
federal
regulatory
program).
33
See
Villars
v.
Kubiatowski,
45
F.
Supp.
3d
791,
801-803
(N.D.
Ill.
2014)
(denying
motion
to
dismiss
claims
against
village
police
department
for
detaining
individual
post
-bond);
Galarza
v.
Szalczyk,
745
F.3d
634,
645
(3d
Cir.
2014)
(finding
that
county
was
liable
for
unlawful
detention
pursuant
to
ICE
detainer).
7
by
the
Trust
Act
or
other
state
law.
34
Accordingly,
any
requests
from
federal
immigration
authorities
for
access
to
individuals
held
by
Illinois
authorities
should
be
viewed
as
requests,
rather
than
obligations.
35
As
discussed
above,
federal
law
permits
—
but
does
not
require
—
only
two
circumstances
where
Illinois
law
enforcement
may
enforce
federal
immigration
law:
(1)
pursuant
to
a
287(g)
agreement;
36
or
(2)
when
an
individual
has
returned
to
the
United
States
after
being
convicted
of
a
felony
and
deported.
37
Jurisdictions
should
understand
that
Illinois
law
has
not
authorized
Illinois
law
enforcement
to
engage
in
enforcement
of
federal
civil
immigration
law
and
that
they may
face
civil
liability
for
doing
so.
b.
Illinois
law
enforcement
has
no
authority
to
arrest
an
individual
solely
based
on
information
that
the
individual
is
undocumented.
Generally,
law
enforcement
officers
cannot
arrest
an
individual
for
violation
of
a
state
or
federal
law
without
a
warrant
unless
state
law
has
granted
them
authority
to
do
so.
38
Illinois
law
permits
arrest
by
Illinois
law
enforcement
only
if
the
officer
has
an
arrest
warrant,
has
reasonable
grounds
to
believe
a
warrant
has
been
issued
or
has
reasonable
grounds
to
believe
that
the
individual
is
committing
or
has
committed
a
criminal
offense.
39
Being
unlawfully
present
in
the
United
States
is
not
a
criminal
offense,
and
thus
unlawful
presence
alone
does
not
establish
probable
cause
to
find
that
an
individual
has
committed
an
offense
under
Illinois
law.
4°
The
fact
that
a
person
may
be
subject
to
deportation
is
not
a
lawful
reason
for
arrest
or
detention
without
a
court
order,
even
if
the
person
is
subject
to
a
deportation
order
based
on
the
commission
of
a
criminal
offense.'
Further,
as
discussed
above,
Illinois
law
now
prohibits
the
arrest
of
a
person
solely
based
on
the
person's
citizenship
or
immigration
status.
34
Arizona,
132
S.
Ct.
at
2509-10.
35
Moreno
v.
Napolitano,
2016
WL
5720465
(N.D.
Ill.
Sept.
30,
2016);
Galarza
v.
Szalczyk,
745
F.3d
634,
645
(3d
Cir.
2014);
Ortega
v.
U.S.
Immigration
&
Customs
Enforcement,
737
F.3d
435,
438
(6th
Cir.
2013);
Liranzo
v.
United
States,
690
F.3d
78,
82
(2d
Cir.
2012);
United
States
v.
Uribe—Rios,
558
F.3d
347,
350
n.
1
(4th
Cir.
2009);
United
States
v.
Female
Juvenile,
A.F.S.,
377
F.3d
27,
35
(1st
Cir.
2004);
Giddings
v.
Chandler,
979
F.2d
1104,
1105
n.3
(5th
Cir.
1992).
36
8
U.S.C.
§
1357(g)
(Section
287(g)
of
the
Immigration
and
Nationality
Act).
37
8
U.S.C.
§
1252c.
38
Miller
v.
United
States,
357
U.S.
301,
305
(1958)
(noting
that
the
lawfulness
of
a
warrantless
arrest
for
violation
of
federal
law
by
state
peace
officers
is
"to
be
determined
by
reference
to
state
law").
39
725
ILCS
5/107-2.
4°
Arizona
v.
United
States,
132
S.
Ct.
2492,
2505
(2012)
("If
the
police
stop
someone
based
on
nothing
more
than
possible
removability,
the
usual
predicate
for
an
arrest
is
absent.").
41
/d.;
see
also
Galarza
v.
Szalczyk,
745
F.3d
634,
641
(3d
Cir.
2014)
("The
[INA]
does
not
authorize
federal
officials
to
command
state
or
local
officials
to
detain
suspected
aliens
subject
to
removal.");
Morales
v.
Chadbourne,
793
F.3d
208,
217-18
(1st
Cir.
2015)
(new
seizures
as
a
result
of
an
ICE
detainer
must
be
supported
by
probable
cause).
8
Thus,
without
an
arrest
warrant
issued
by
a
judge,
Illinois
law
bars
Illinois
law
enforcement
from
arresting
an
individual
on
the
sole
basis
that
the
person
is
unlawfully
present
in
the
United
States.
42
This
is
true
even
if
an
officer
is
aware
that
ICE
has
issued
an
administrative
warrant
for
an
individual.
Therefore,
Illinois
officers
do
not
have
legal
authority
to
arrest
or
detain
an
individual
based
solely
on
the
individual's
immigration
status
and
are
in
violation
of
Illinois
law
if
they
do
so.
c.
Illinois
law
enforcement
shall
not
arrest
an
individual
solely
based
on
an
ICE
administrative
warrant.
Federal
law
does
not
authorize
Illinois
law
enforcement
officers
to
arrest
an
individual
pursuant
to
an
ICE
administrative
warrant
and
Illinois
law
now
prohibits
arrest
by
an
Illinois
law
enforcement
officer
solely
based
on
an
ICE
administrative
warrant.
43
ICE
administrative
warrants
are
prepared
by
ICE
employees,
but
are
not
approved
or
reviewed
by
a
judge.
44
By
themselves,
ICE
administrative
warrants
do
not
suggest
that
an
individual
has
committed
a
criminal
offense,
nor
do
they
constitute
probable
cause
that
a
criminal
offense
has
been
committed.
45
Furthermore,
administrative
warrants
issued
by
ICE
authorize
only
U.S.
Department
of
Homeland
Security
(DHS)
or
ICE
agents
to
arrest
the
individual,
not
Illinois
law
enforcement.
Thus,
any
arrest
by
Illinois
law
enforcement
solely
based
on
an
administrative
warrant
issued
by
ICE
is
not
an
arrest
pursuant
to
a
criminal
warrant
or
a
finding
of
probable
cause
and
violates
Illinois
law.
46
d.
Illinois
law
enforcement
shall
not
detain
an
individual
pursuant
only
to
a
federal
immigration
detainer
request.
Federal
courts
have
concluded
that
ICE
detainers
are
requests,
and
state
and
local
law
enforcement
are
not
required
to
honor
the
requests.
In
fact,
law
enforcement
agencies
may
be
open
to
liability
if
they
comply
with
such
requests
because
ICE
detainers
do
not
establish
individualized
probable
cause
that
would
be
sufficient
justification
for
local
law
enforcement
to
detain
an
individual.'"
Furthermore,
any
detention
of
an
individual
after
his
or
her
normal
release
date
is
42
Arizona,
132
S.
Ct.
at
2505.
43
See
United
States
v.
Toledo,
615
F.
Supp.
2d
453,
459
(S.D.
W.
Va.
2009)
(discussing
the
sheriff's
lack
of
authority
to
enforce
an
ICE
administrative
warrant).
44
8
U.S.C.
§
1357;
see
also
U.S.
v.
Abdi,
463
F.3d
547,
551
(6th
Cir.
2006)
(describing
the
process
to
obtain
an
ICE
administrative
warrant).
45
El
Badrawi
v.
Dept.
of
Homeland
Security,
579
F.
Supp.
2d
249,
276
(D.
Conn.
2008);
United
States
v.
Toledo,
615
F.
Supp.
2d
453,
459
(S.D.
W.
Va.
2009).
46
Illinois
law
authorizes
peace
officers
to
arrest
an
individual
only
when
a
warrant
has
been
issued
for
a
criminal
offense
—
not
a
civil
offense.
725
ILCS
5/107-2.
47
Galarza
v.
Szalczyk,
745
F.3d
634,
645
(3d.
Cir.
2014);
Moreno
v.
Napolitano,
2016
WL
5720465
(N.D.
Ill.
September
30,
2016)
(holding
that
ICE's
practice
of
issuing
detainers
without
individualized
determination
of
probable
cause
was
unlawful).
9
considered
a
new
arrest
and
must
be
based
on
probable
cause
that
a
crime
has
been
committed.
48
As
discussed
above,
unlawful
presence
in
the
United
States
alone
does
not
constitute
probable
cause
and
is
not
a
criminal
offense.
49
An
Illinois
law
enforcement
agency
is
in
violation
of
the
Trust
Act
if
it
detains
an
individual
beyond
his
or
her
normal
release
date
based
only
on
an
ICE
detainer
request."
Further,
an
Illinois
law
enforcement
agency
must
take
actions
to
ensure
it
does
not
violate
the
Illinois
and
federal
constitutional
protections
against
unreasonable
searches
and
seizures.
5I
Any
detention
of
an
individual
without
a
judicial
warrant
—
including
prolonging
an
initial
detention
—
must
be
supported
by
probable
cause
that
an
individual
committed
a
criminal
offense,
which
is
not
satisfied
by
the
existence
of
an
ICE
administrative
warrant.
52
e.
Illinois
law
enforcement
is
permitted,
but not
required,
to
share
information
with
federal
immigration
authorities.
Federal
officials
may
request
information
from
Illinois
law
enforcement
agencies
about
individuals
in
their
custody
in
order
to
enforce
federal
civil
immigration
laws."
This
information
may
include
names
of
individuals
in
custody,
normal
release
dates,
court
dates,
home
address
or
other
identifying
information.
Illinois
law
enforcement
is
not
required
to
respond
to
these
information
requests.
54
Similarly,
Illinois
law
enforcement
agencies
are
not
required
to
inquire
about
an
individual's
citizenship
or
immigration
status
or
to
collect
this
information.
55
While
Illinois
law
enforcement
and
other
government
agencies
are
not
prohibited
from
sharing
or
receiving
citizenship
information,
56
they
are
not
required
to
do
so.
57
Moreover,
law
enforcement
policies
and
practices
to
share
information
about
individuals
in
their
custody
may
deter
individuals
from
reporting
information
about
a
crime
or
appearing
as
a
witness
48
111.
Const.
1970,
art.
I,
§
6;
U.S.
Const.,
amend.
IV.
49
Arizona
v.
United
States,
132
S.
Ct.
2492,
2505
(2012).
5°
Santos
v.
Frederick
Cnty.
Bd.
Of
Comm
'rs,
725
F.3d
451,
464-65
(4th
Cir.
2013);
see
also
Villars
v.
Kubiatowski,
45
F.
Supp.
3d
791,
801-803
(N.D.
III.
2014)
(denying
motion
to
dismiss
claims
against
village
police
department
for
detaining
individual
post
-bond);
Galarza
v.
Szalczyk,
745
F.3d
634,
645
(3d.
Cir.
2014)
(finding
that
county
was
liable
for
unlawful
detention
pursuant
to
ICE
detainer).
51
Morales
v.
Chadbourne,
793
F.3d
208,
217
(1st
Cir.
2015);
Moreno
v.
Napolitano,
2016
WL
5720465
(N.D.
Ill.
Sept.
30,
2016).
52
Santos,
725
F.3d
at
464-65;
see
also
Villars,
45
F.Supp.3d
at
801-03;
Galarza,
745
F.3d
at
645;
see
also
People
v.
Hyland,
2012
IL
App
(1st)
110966
(finding
that
investigative
alert
was
not
sufficient
to
support
probable
cause
for
arrest).
53
8
U.S.C.
§
1373.
54
Id.;
see
also
Arizona
v.
United
States,
132
S.
Ct.
2492,
2508
(2012)
(noting
that
Congress
has
"encouraged
the
sharing
of
information
about
possible
immigration
violations").
55
Law
enforcement
should
be
aware
that
all
fingerprint
information
submitted
to
the
FBI
for
criminal
background
checks
will
be
provided
to
ICE
for
comparison
to
its
records.
56
See
Ill.
Public
Act
100-0463,
§
15(c)
(2017).
57
See
Printz
v.
United
States,
521
U.S.
898,
935
(1997)
(holding
that
10th
Amendment
prohibits
the
federal
government
from
commandeering
state
employees
to
administer
federal
scheme).
10
if
these
individuals
are
concerned
that
their
information
will
be
shared
with
ICE
or
other
federal
authorities.
58
Accordingly,
such
policies
and
practices
may
diminish
the
relationship
between
Illinois
law
enforcement
and
immigrant
communities.
Therefore,
agencies
should
carefully
consider
the
impact
of
sharing
information
with
federal
authorities
on
the
community's
perceptions
of
trust
and
confidentiality.
58
See
City
of
New
York
v.
United
States,
179
F.3d
29,
34
(2d
Cir.
1999)
(discussing
police
department
interests
in
confidentiality
of
information).
11
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