The ACLU wants Kentucky jailers to know they can't hold people just based on immigration status.

The ACLU wants Kentucky jailers to know they can’t hold people just based on immigration status.

The American Civil Liberties Union of Kentucky has put the Kentucky Association of Jailers on notice regarding how long, and under what circumstances they can detain individuals based on immigration status.

In a recent open letter, the ACLU warned the jailers that constitutional rights may be violated by detaining individuals based upon federal U.S. Immigration and Customs Enforcement (aka ICE) detainer forms. “Specifically, recent federal court decisions have clarified that ICE detainer requests are non-mandatory requests by the federal government that do not compel local officials to act,” the letter states. “Local officials assume liability for any illegal detentions that may result.”

The upshot: Kentucky municipalities are not required to obey federal requests to detain people based on immigration status. And if they do the local communities and counties could be liable.

The letter was written by William E. Sharp, staff attorney at the Kentucky ACLU, Enid Trucios-Haynes, board president, and Kate Miller, program director. It was dated June 25.

The court case in question is Miranda-Olivares v. Clackamas County, and was decided April 11, 2014.

The case was tried in Oregon, and was decided in the plaintiff’s favor. As reported in The Oregonian, a jury decided Clackamas County, Ore., violated the Fourth Amendment rights of a woman named Maria Miranda-Olivares by holding her in jail 19 hours after her case was settled. As she was held, federal immigration agents launched an investigation into her residency status. This was deemed illegal.

Here’s how Oregonian reporter Molly Harbarger described it:

On March 29, Miranda-Olivares pleaded guilty to one charge of contempt of court, and was sentenced to 48 hours in jail and probation. She got credit for the time she already served, so she would have been released that same day.

However, the county jail officials continued to keep her in jail until the next day when officials from the Department of Homeland Security, which includes ICE, picked her up and took her into custody.

(Judge Janice M.) Stewart wrote in her ruling that the county’s practice of keeping her in jail for ICE means that Miranda-Olivares was taken into custody a second time, even though her charges were settled and there was no new warrant for her arrest.

This second detention, based on nothing more than her immigration status, was viewed to violate her constitutional rights. Also, her sister couldn’t post bond for her during that time, due to the ICE request. Miranda-Olivares sued and won.

Now the Kentucky ACLU is saying this case is a precedent and applies here.

The ACLU’s Kate Miller, located in Louisville, says the organization is not certain how widespread the issue of ICE detention is in Jefferson County or the rest of the state, but that it is being looked into. Also, the ACLU has not tried such cases in Louisville, she said.

Still, she said the ACLU is going to alert both law enforcement and those who might be at risk of being held based on ICE detainers of the new ruling. “It’s important for us to gather evidence, and alert individuals of their rights,” she said. “It’s part of our job.” The ACLU also wants to be a resource for jail administrators, and in their letter offered its assistance to help formulate new detention policies.

For now, though, the ACLU is trying to figure out the scope of this problem in Kentucky. “We’re looking into the number of individuals that had ICE detainers in Kentucky,” said Miller. This has local resonance as some of those individuals may have been transferred to Louisville.

Mark Bolton, director of the Louisville Metro Department of Corrections, said his department hasn’t held people on ICE detainers since his arrival in 2008. He said ICE makes regular requests of his department to hold people, but these requests are not honored. “Once they (inmates) complete their charge, we tell them to come and get ’em, or we kick ’em out the door,” he says.

How often does ICE make such requests of his department? Bolton wouldn’t say, but did say such requests are not uncommon. He added some jails are paid by ICE to keep detainees, but not Louisville’s.

He said Louisville has been in compliance with the current legal position on ICE detainers–i.e. that individuals should not be held based on their immigration status–since 2008, again, his arrival, though he admitted the department may have held some people on ICE detainers prior to then. “I think things may have been a little fast and loose before I got here,” he says.

A spokeswoman for the Kentucky Jailers Association responded to an inquiry about this issue thus: “We were unaware of the letter that the ACLU sent to us until we received your inquiry … Please know that we have read the letter and have turned it over to legal counsel for further review.” So far they have sent no additional follow-ups.