Recently, some false and inflammatory information has been shared regarding my decision to honor two administrative subpoenas issued by the Department of Homeland Security (DHS). I cannot stand by and let this false narrative risk damaging community relationships, and I prepared this response to provide accurate, factual information about my decision.
First, some background information in case you’re not familiar.
Two weeks ago, DHS issued me two immigration enforcement subpoenas to produce records related to two individuals in custody of the Washington County Jail. While we issued a clear media release about the reasons for my decision to comply with the subpoenas, that decision has been mischaracterized by a few in a way that seems designed to instill fear and discord in our community.
The DHS subpoenas commanded identifying information on two individuals in our custody:
- A registered sex offender who completed a prison sentence for Sex Abuse in the First Degree and now faces additional charges of Displaying Child In Sexual Conduct, Sexual Abuse in the First Degree, and Sodomy in the First Degree.
- An individual serving a sentence for Driving Under the Influence of Intoxicants (DUII) and faces charges for another DUII, Reckless Driving and Probation Violation.
While the information commanded by these subpoenas is freely available as a public record for any other purpose, Oregon law (ORS 180.805) specifically prohibits public agencies from sharing this information for the purpose of enforcement of federal immigration laws. That statute does allow disclosure for the purpose of enforcing federal immigration law when required by state or federal law. After consulting with counsel, I determined that responding to these subpoenas was indeed required by federal law due to the following factors:
- These subpoenas were signed by Portland ICE Assistant Field Office Director, who is an official who has federal statutory authority to issue them under 8 USC 1225 (d)(4)(A). The fact these subpoenas were not signed by a judge has no bearing on their validity. Subpoenas are rarely signed by a judge and are almost always signed by an attorney or high-ranking government official. (For instance, if my neighbor were subpoenaed to appear as a witness in court, that subpoena would most likely be signed by an attorney assigned to the case.)
- In 2017 the 9th Circuit Court of Appeals upheld similar federal administrative subpoenas for pharmacy records and found that the federal administrative subpoena statute preempted Oregon law that required a warrant for the records. See Oregon Prescription Drug Monitoring Program and ACLU v. US Drug Enforcement Agency (9th Circuit June 2017).
- The only other legal option available would be to file a motion to quash the subpoenas. I have been advised that no good-faith legal basis exists to file such a motion, and attorneys are required by the Oregon State Bar’s rules on professional conduct to have a good faith basis to file all motions.
- Federal statute specifically provides that if a person neglects or refuses to respond to one of these subpoenas, they may be federally charged with contempt of court (8 USC 1225 (d)(4)(B)).
- The US Attorney for Oregon said clearly that he was willing to move forward with contempt proceedings if necessary.
Considering the fact that clear federal law authorizes these federal administrative subpoenas, that similar administrative subpoenas have been upheld by the courts, that we are legally obligated to provide the information when required by federal law, the lack of good-faith legal reasons to try and quash these subpoenas, and the very real threat of a federal contempt charge, I decided to comply with the subpoenas.
It’s been alleged these subpoenas are exactly the same as an ICE detainer request which has no force of law. That claim is completely inaccurate.
In complete contrast to an ICE detainer which several federal courts have described as simply a “request”, the DHS subpoenas for identifying information are fully authorized by federal law (8 USC 1225(d), and the Code of Federal Regulations, 8 CFR 287.4), and failure to comply is punishable by a federal contempt charge. The laws authorizing administrative subpoenas have been in effect for nearly 100 years and have been upheld by the US Supreme Court (US v. Minker, 76 S Ct 281 (1955)), and the 9th Circuit Court found that these administrative subpoenas preempt differing Oregon law.
The decision I made to comply with these subpoenas pains me because of the negative impact it could have on the trust-relationship I, my colleagues, and immigrant community civic leaders have worked hard to build over a period of decades. In 2014 I was the first Sheriff in Oregon to stop holding people for ICE following the federal court ruling that doing so is a Constitutional violation (Miranda-Olivares v. Clackamas County). In 2018 I publicly opposed Ballot Measure 105 which would have done away with Oregon’s law that basically prevents local law enforcement from using resources to detect or apprehend someone whose only violation is federal immigration law. That same year the Presiding Judge and I wrote a letter to the Portland ICE Director requesting they not take enforcement action in our courthouse. I believe these positions were the right thing to do because ICE activities can have a chilling effect on our justice system and because I care about our immigrant community, but they also helped make Washington County a target of federal authorities.
You can disagree with my decision. You can say you would make a different decision if in my place. You can argue that I should have been willing to face a federal contempt action to protect two people from ICE who are a clear public safety risk, one of whom is currently charged with sexually victimizing several children. But you cannot disregard the complex facts and legal issues listed above, as well as pressing public safety concerns that create a serious dilemma for law enforcement agencies. While the decision was difficult, I made my decision because I believe it is the right legal response, and the right response for the public safety of our entire community. I have confidence as we continue our best efforts to serve everyone in our community, regardless of their origin or status, the longstanding bond between the Sheriff’s Office and immigrant communities will survive and grow and we work hard and invest in our relationship. I will continue to do my best to follow the law, do the right thing for public safety, while supporting all our community members.