Maryland's top lawyer is advising local jails that they should not honor requests from federal officials to hold people suspected of immigration violations for up to 48 hours past their release date.
The guidance from Attorney General Brian Frosh says local jails should only hold such people longer when immigration officials present a warrant signed by a judge. Otherwise, he cautioned, the jails could be sued for unlawful detention under the Fourth Amendment of the Constitution.
Frosh, a Democrat, said he offered the advice because of confusion amid President Donald Trump's pronouncements to crack down on immigration violators and some lawmakers' efforts to pass legislation in Maryland to regulate local involvement in immigration enforcement.
"There is a great deal of fear and anxiety and certainly a lot of uncertainty about what the law is. ... We thought it was important for us to re-emphasize what the law is," Frosh said.
The document is not an order; instead, it provides advice for local officials to consider when making decisions about their jail and policing policies.
The local immigrant-rights group CASA applauded Frosh.
"We think it's very helpful and necessary," said Nick Katz, CASA's senior manager of legal services. "We appreciate that he issued this. We hope that law enforcement agencies read it and comply with the recommendations that he makes."
Lt. Dan Lasher is director of operations for the Allegany County Detention Center and president of the Maryland Correctional Administrators Association. He said most local jails do not honor detainer requests from federal Immigration and Customs Enforcement officials.
Lasher said correctional officers don't want to "let someone go who is of the criminal element. But without a warrant, there's just no basis to do it."
Baltimore's jail, which is run by the state, does not honor ICE detainer requests without a judicial warrant, so Frosh's guidance won't affect the jail's policies, said state corrections spokesman Gerard Shields.
For the first time, Frosh's advice addresses partnerships in which local law enforcement officials are trained by the federal government and become deputized to carry out certain federal immigration duties.
Known as 287(g) programs, for the portion of federal law that authorizes them, they've come under fire from advocates for immigrants and civil liberties.
Frosh's guidance notes that it's permissible for counties to join 287(g) programs, but cautions that the federal government doesn't necessarily pay for them. And the programs have the potential to open the door to illegal racial profiling, Frosh wrote.
Frederick and Harford counties have 287(g) programs in their jails to screen people for possible immigration violations. Anne Arundel County has applied to join, and a bill pending before the Baltimore County Council would require that county to join as well. Baltimore County Executive Kevin Kamenetz has pledged to veto the bill if it passes.
"The three Republican members of the County Council are trying to frankly grandstand the issue in defiance, now, of the attorney general's opinion," said Kamenetz, a Democrat. "I think that they should withdraw their bill."
Frederick County Sheriff Chuck Jenkins said all people booked in his jail are given the same paperwork asking about their country of birth and citizenship status. Frosh said that's fine, but if the 287(g) program expands into one involving patrol officers — a change the Trump administration has expressed interest in — there is a "greater danger" of improper racial profiling.
Jenkins, a Republican, maintains that the jail screening is a helpful tool for public safety, and says he's gotten a surge of public interest in the program.
In Harford County, 34 people in the county jail have been identified for possible immigration violations since the staff began working with ICE in November, said Sheriff Jeffrey Gahler, a Republican.
Gahler said he doesn't think the new guidance will affect his jail's operations and questioned whether it was really necessary.
"It certainly has an air of partisan persuasion to it," Gahler said. "It seems to be one-sided on the 'anti' front."