Wednesday, 4 Aug 2021

Federal judge orders Denver to comply with ICE subpoenas

A federal judge on Monday ordered Denver to comply with subpoena requests issued by U.S. Immigration and Customs Enforcement, potentially ending a months-long feud between the city and the federal agency.

The Denver Sheriff Department in January refused to comply with administrative subpoenas issued by ICE that sought information on several people who had been held in jail and who had entered the country illegally. ICE’s move to subpoena the sheriff’s department was unprecedented — the first time it had ever subpoenaed a law enforcement agency — and a process ICE said it turned to as a last resort to force Denver’s cooperation.

United States Magistrate Judge Michael Hegarty sided with ICE in his Monday ruling, affirming that the agency has the authority to issue the subpoenas and that the sheriff department must give ICE up-to-date information on the men’s home and work addresses, emergency contacts and bonds.

The city argued in court filings that ICE’s request was an improper use of public safety resources, made in bad faith for political reasons, unnecessary because ICE already has access to the information requested in the subpoenas, improper because it was related to civil proceedings and in violation of the 10th Amendment.

Hegarty considered each of those objections and largely dismissed them in the seven-page ruling. He noted that the “current national conflict between state and local governments and the United States in the execution of immigration laws and policies” raises political questions, not legal ones.

“I understand the Sheriff’s complaints about a change in the exercise of discretion that ICE’s use of administrative subpoenas might entail, but that is a matter of political discussion and not an appropriate consideration for this Court,” the judge wrote.

Denver argued that the subpoenas violate the U.S. Constitution because the 10th Amendment prohibits the federal government from commandeering state or local governments into the service of federal immigration agencies. Hegarty said the subpoena requests do not rise to the level of commandeering.

“This review concerns a discrete request for information, not a law that foists a mandatory, ongoing disclosure program onto the Sheriff’s Department whenever it comes into contact with a particular class of persons” the judge wrote. “If such subpoenas become a regular occurrence, then some day a federal court may have a more difficult decision, but this is not that day. As the Sheriff notes, this is a unique process in the history of ICE.”

It was not clear Tuesday whether the city intends to appeal the judge’s order.

“We just learned of the decision yesterday,” Ryan Luby, spokesman for the Denver City Attorney’s Office, said. “We are still evaluating next steps.”

An ICE spokesperson did not immediately return requests for comment.

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