Thanks to advocacy by the New York Civil Liberties Union, the New York State Sheriffs’ Association has advised all sheriffs across the state to stop imprisoning people without a warrant just so federal agencies can investigate them for immigration purposes. In response to the Sheriffs’ Association guidance, at least 10 counties have stopped honoring federal government requests that they jail people who have been arrested after they would have otherwise been released.

“A foundational principle of our country is the right to due process. No New Yorker should ever be imprisoned unless there is a warrant for his arrest or a judge has reviewed his case,” said NYCLU Executive Director Donna Lieberman. “But President Obama has asked New York law enforcement agencies to forget the Fourth Amendment and hold thousands of New Yorkers just so their immigration status can be checked. We applaud the state Sheriffs’ Association for recognizing that you can’t violate the law to enforce the law. Nobody should be imprisoned based on a hunch.”

Among the counties that have agreed to stop honoring Immigration and Customs Enforcement (ICE) “detainers” are Albany, Suffolk, Orange, Broome, Cortland, Franklin, Livingston, Rensselaer, Warren and Wayne.

Detainers are requests sent by federal immigration officials to local and state law enforcement agencies nationwide, asking them to imprison a person in their custody for an extra two to five days beyond the time when he or she should be released, giving the immigration officials extra time to decide whether to take him or her into federal custody. These holds can stretch incarceration time for weeks.

But courts across the nation have held local law enforcement liable for imprisoning people solely because of an ICE detainer in violation of Fourth Amendment protections against arbitrary incarceration.

Since 2010, thousands of immigrants in New York have been held for extended periods on account of these unlawful requests. In Suffolk County alone, more than 1,200 people were detained from 2011 to 2012.

The Obama administration has defended its use of immigration detainers, saying it uses them to target dangerous criminals. But from 2012 – 13, almost 80 percent of all people in New York who were held on detainers had either never been convicted of a crime or had only been convicted of misdemeanors or petty offenses including simple traffic violations or marijuana possession.

In May, the NYCLU wrote every sheriff’s office in the state advising that imprisoning immigrants for extended periods without a warrant is illegal and opens law enforcement up to litigation.

Citing the NYCLU’s correspondence, the Sheriffs’ Association recommended in June that people should no longer be held in custody solely due to an ICE request.

“Recent federal case law out of Oregon and Pennsylvania has established that ICE detainers are requests, not mandates, by federal authorities that a local police agency maintain temporary custody of a inmate,” wrote New York State Sheriffs’ Association Associate Counsel Alex Wilson. “As such, jail inmates who are held in custody solely by virtue of an ICE detainer are being held illegally, in violation of their 4th Amendment rights protecting them from unreasonable searches and seizures. Furthermore, since ICE detainers are requests that are not legally binding, counties and Sheriffs can be held liable for complying with them and holding an inmate for longer than they would otherwise be authorized to do.”

The NYCLU will continue its advocacy on the matter of immigration detainers and will be following up with counties statewide to ensure that law enforcement knows the law and that agencies are inviting needless and costly litigation if they continue to honor warrantless detainers. Nassau and Dutchess counties have also agreed to stop honoring detainers, though continue – over the objection of the NYCLU and against the advice of the Sheriffs’ Association –to honor other requests to imprison immigrants from ICE.

“Warrantless immigration detainers are not only illegal, but they’re bad for public safety,” said NYCLU Senior Staff Attorney Alexis Karteron. “No New Yorker should be afraid of immigration consequences when talking to the police. When local law enforcement starts acting like immigration agents, it undermines the ability of communities to trust the police and that makes us all less safe. We commend the State Sheriffs’ Association for recognizing that and doing the right thing.”