Garry McFadden of North Carolina's Mecklenburg County pledged to limit cooperation with federal immigration authorities. But honoring that promise hasn't been easy.
CHARLOTTE, N.C.—In 2006, Luis Pineda-Ancheta was arrested in Arizona, charged with illegal entry into the United States, a civil offense, and deported back to his native Honduras. At some point in the next 13 years—authorities don’t know when—he returned to the U.S. and ended up in North Carolina.
In April, a woman reported to police in Charlotte that Pineda-Ancheta had grabbed her and threatened to kill her. Eleven days later, the woman again complained to police that he had again attacked her. On May 15, police arrested Pineda-Ancheta and brought him to the Mecklenburg County detention center, where he was charged with one felony and five misdemeanors.
Any suspect goes through a palimpsest of systems when arrested. In this case, local police apprehended Pineda-Ancheta. He came before a state district court judge, who set his bond and conditions of release, and was then locked up in a jail run by the Mecklenburg County Sheriff’s Office. When Pineda-Ancheta was arrested, his name was also entered into an FBI database, from which it is available to local, state, and federal law-enforcement officials.
When Immigration and Customs Enforcement matched his name with the 2006 deportation, it sent a request, known as a detainer, to MCSO, asking the sheriff to hold Pineda-Ancheta for up to 48 hours until ICE could come and arrest him, even if he posted his bond. If Pineda-Ancheta had been arrested the year before, that’s exactly what would have happened.
But Garry McFadden, the county’s new sheriff, was elected in November after campaigning on the promise to reduce MCSO’s cooperation with ICE. He told voters he would withdraw from 287(g), a formal cooperation arrangement with ICE, and stop honoring detainers, which are voluntary requests and not criminal warrants. In December, the day after he was sworn in, McFadden formally put those policies in place.
That’s why Pineda-Ancheta walked out of the detention center in downtown Charlotte on May 17, after posting the $5,000 bond set by the judge. Five days later, the same woman called the Charlotte-Mecklenburg Police Department again. She told police Pineda-Ancheta kidnapped her, stuffed a cloth in her mouth, placed a rope around her neck, and led her into a stand of trees—but he tripped, allowing her to escape.
On May 23, dozens of cops swarmed an apartment complex in South Charlotte. Pineda-Ancheta barricaded himself in an apartment, and then, police said, slipped into the walls of the building. When he was finally arrested on new felony charges, after nine hours, Pineda-Ancheta once again came before a district-court judge, who set bond of $65,000 and required electronic monitoring. Once again, ICE issued a detainer to MCSO. Once again, Pineda-Ancheta met the conditions for release and was set free.
By now, federal authorities and the sheriff were trading volleys in the press. Sean Gallagher, the regional head of ICE, blamed the second assault on McFadden. “I spoke directly to this point late last year and warned that the noncooperation policy would result in preventable crimes of violence taking place in Mecklenburg County,” he said. “Sadly, but predictably, this has now taken place.” The U.S. attorney said McFadden was making the county less safe and warned that someone would die. Local Republican politicians called on McFadden to resign. His predecessor, an erstwhile family friend, told me McFadden has made the community less safe.
For McFadden, the matter was simple: He believes detainers violate the Constitution, since they ask sheriffs to hold people, without probable cause, who have met a judge’s conditions for release. Because Pineda-Ancheta had crossed the border illegally after being deported, he had committed a felony, but McFadden said the sheriff’s office was never notified of the felony violation.
“All I’m asking ICE to do is this: Bring me a criminal warrant and I’ll hold anybody for you,” McFadden told me on May 29. “I have 400-plus federal inmates in my detention center right now. You bring me that paper, I got a place to put them. Other than that, you’re gonna fight with me the whole time.”
Even as the political battle raged, the quotidian work of law enforcement and interagency cooperation continued. On June 2, ICE arrested Pineda-Ancheta, and he was charged with illegal reentry. Federal officials sent him to be locked him up in the same place they send most suspects they arrest in the area: McFadden’s Mecklenburg County detention center.
The tale of Luis Pineda-Ancheta is more than a lurid vignette from the national debate over illegal immigration. For centuries, sheriffs reigned as the most powerful county officials throughout most of the United States. Part lawman and part mayor, the sheriff was not appointed by other elected officials, but instead derived his authority from voters themselves. The sheriff was the law, and sometimes acted above it, secure in the knowledge that there were few people who could call him to account and even fewer who would.
This was especially true in the South, where there were few big city governments or urban police chiefs to siphon off the sheriff’s power, and where local control was a watch word. Lawmen like Sheriff Jim Clark of Dallas County, Alabama, whose posse beat marchers on the Edmund Pettus Bridge on Bloody Sunday, or Sheriff Willis McCall of Lake County, Florida, who shot and killed black prisoners, used their power and autonomy to enforce white supremacy, and to fight against the civil-rights movement.
Now, a wave of newly elected sheriffs in urban counties in North Carolina is seeking to employ those same considerable powers. Once again, race is a central factor: The sheriffs are African American, and they campaigned on the promise they would limit cooperation with ICE. That stance is controversial within North Carolina and around the country, but under federal law such cooperation is voluntary—and the sheriffs won popular mandates, sometimes by huge margins. They took office looking to assert the same local control that their predecessors have exercised for generations, but in the service of a progressive and multiracial agenda rather than a white and conservative one.
That proved too much for the state’s Republicans. The GOP-led state legislature quickly moved to pass a bill that would require sheriffs to honor ICE detainers. Though the bill now seems unlikely to make it into law—Governor Roy Cooper, a Democrat, has indicated he opposes it—it drew the support of the powerful North Carolina Sheriffs Association, which has in the past jealously defended its members’ prerogatives.
North Carolina’s progressive cities are ringed by more conservative suburbs and rural areas. That contrast is becoming common across the South, where it is spawning fights over local control and state preemption. The early rounds of those bouts—on issues ranging from voting rights to transgender bathrooms, and now, to sheriffs and immigration—have often been fought in North Carolina. At stake isn’t just the enforcement of immigration law, but a much bigger question: Will the nation’s diverse, growing urban centers be held in check by more conservative rural voters, or will they be allowed to go their own way?
“If I had known it was this fun, I would have done it years ago,” McFadden told me with a wide grin in the midst of the Pineda-Ancheta saga. You might have a different idea of fun than McFadden, who spent 38 years at CMPD, many of them as a homicide detective.
In late 2017, McFadden decided to run against Sheriff Irwin Carmichael. Carmichael, like previous Mecklenburg County sheriffs, worked closely with ICE. Running on a platform centered on immigration, McFadden routed the conservative Democrat in the primary, effectively guaranteeing he’d be the next sheriff.
In November, the state’s seven biggest counties all elected African American sheriffs, most of them turning out white incumbents. In Forsyth County, home to Winston-Salem, voters chose Bobby Kimbrough, a lanky former DEA agent. In Asheville’s Buncombe County, which is less than 7 percent black, voters elected Quentin Miller, a tall, soft-spoken career cop who skewers traditional police pieties. In Durham County, a two-term Democrat was driven from office by Clarence Birkhead, the polished former head of the Duke University Police Department with a habit of quoting Sir Robert Peel, the father of modern policing. In Wake County—home to Raleigh, the state capital—Gerald Baker shocked the 16-year Republican sheriff, and in Greensboro’s Guilford County, Danny Rogers did the same to the 24-year GOP incumbent.
The North Carolina Sheriffs Association has traditionally been one of the state’s most powerful lobbies, favoring a conservative brand of law-and-order politics. But these seven sheriffs ran on progressive platforms, with changing the approach to immigration and jail conditions the most common issues.
None of them has generated nearly as much praise as McFadden, nor as much criticism. That is partly because Mecklenburg is the state’s largest county, partly because of how aggressive McFadden has been in his plans to overhaul the office, and partly a testament to his own outsize personality and eagerness to spar with critics.
To get a mental image of McFadden, imagine the stereotypical sheriff—a taciturn white guy, sporting a crisply starched uniform, neatly cropped hair, and maybe a broad-brimmed hat—and then erase that entirely. McFadden’s preference is for Italian suits (a dark-blue check on the day I visited), sharp shoes (light brown double monks), colorful ties (purple paisley), and an enormous “homicide detective” ring. It was steamy hot, and McFadden had taken off his jacket but wore a vest. He didn’t carry his gun. He speaks, at great length, in an it-ought-to-impossible hybrid of clipped cop speech and marble-mouthed country drawl.
Civil rights is in McFadden’s blood—his relatives were involved in Briggs v. Elliott, one of the school-segregation cases that was combined into the Brown v. Board of Education decision—but his career in law enforcement was a surprise. His earliest memory of the police is being hassled by a white state trooper in his native South Carolina. But McFadden also met Stanley LeGrant, a black sheriff’s deputy whose example stuck with him, and whose picture now adorns his office, alongside a collection of African art. The stubbornness and willingness to speak his mind that have defined his tenure as sheriff were present at the start of his career. After college, he was one of several black applicants to the Charlotte police department.
“They rejected four of us, and I didn’t take the rejection well and I got back and talked about it, and they hired me,” McFadden said.
McFadden thrived inside CMPD, eventually becoming a homicide detective, using his gregariousness as a central tool for his police work. He starred in a documentary series, I Am Homicide, on the Investigation Discovery Channel. In 2011 he retired and was promptly rehired to work with the police chief’s office. By the time he ran for sheriff, he was a local celebrity.
McFadden’s larger-than-life personality and ability to connect with people, honed on the homicide beat, made him a natural retail politician. A walk from his office to the detention center, directly across the street, took half an hour. First, there was a bull session with his executive assistant on the way out; then a good-natured joshing for a local defense attorney, conversations with a half-dozen corrections officers, and an impromptu reunion with his old homicide partner.
At first, I thought it was a set-up, but as the encounters stretched over several hours, that became a logistical impossibility. McFadden really seemed to know everyone we met, from magistrates to cleaning ladies, and he had inside jokes to share with many of them. When we finally made it inside the detention center, McFadden stopped so often to talk with guards and residents—as he has relabeled inmates—that the major assigned to lead the tour adopted a tone of mock exasperation that seemed to occasionally shade into genuine impatience.
It took more than his natural gregariousness to put McFadden in office. The relationship between community activists and police in Charlotte is sometimes adversarial, as it is in so many cities. Activists had been lobbying Carmichael to end 287(g) for years, but while they found the sheriff was always cordial, they also found him unpersuadable. So they backed McFadden.
They held rallies and went door-to-door, and the ACLU, in an unusual foray into electoral politics, ran ads on local radio shows assailing the incumbent. “Sheriff Carmichael works with Trump’s deportation force—detaining people for deportation, tearing families apart,” the ads said. “Carmichael’s challengers? They’ve pledged to stop working with Trump’s deportation force.” The ACLU’s spending helped offset Carmichael’s substantial fundraising advantage.
“We beat him and beat him for months,” said Robert Dawkins, an organizer with the SAFE Coalition. Then McFadden beat him at the polls.
Advocacy groups have helped elect progressive sheriffs across the country in recent years. Immigrant and criminal-justice-reform groups harried Milwaukee County Sheriff David Clarke, who oversaw horrific jail conditions and worked closely with ICE, from office, then helped defeat his protégé and successor in August 2018. In Harris County, Texas, the Latino Democrat Ed Gonzalez defeated a Republican incumbent in 2016. And in North Carolina, advocacy groups worked to elect Baker, who promised to end Wake County’s 287(g) program, and Birkhead, Miller, and Kimbrough, whose counties didn’t participate in 287(g) but who vowed to stop honoring detainers. According to the Center for Immigration Studies, an anti-immigration think tank, there are now more than 130 broadly defined “sanctuary counties” in the United States, out of more than 3,000 total counties.
The alliance between activists and reformist sheriffs and would-be sheriffs is improbable. On one side is an office that embodies the mighty power of law enforcement. On the other are activist groups that are at leery of police. But with Donald Trump in the White House, any progress on immigration in Washington seems impossible, and criminal justice reform often has the greatest impact when achieved at the state and local level.
Progressives have already begun a movement to hold district attorneys to public account and, when possible, replace them. That’s another strange fit, since prosecutors are typically law-and-order types, but progressives have scored prominent victories in places like Philadelphia, with Larry Krasner, and Durham, with Satana Deberry—non-traditional candidates who have overhauled what crimes their offices charge, what bonds they request, and what sentences they seek.
Sheriff accountability is the next front, even though sheriffs tend to be even more politically and institutionally conservative than prosecutors. In recent years, conservative sheriffs have often made national headlines, led by Joe Arpaio, former sheriff of Maricopa County, Arizona, and Clarke, both of whom are close allies of President Trump. (Trump pardoned Arpaio after a conviction of criminal contempt of court, and considered Clarke for several administration jobs.) Calling themselves “constitutional sheriffs,” right-wing lawmen have used the office to try to enforce federal immigration laws when they feel Washington is falling down on the job, and they have resisted stricter gun controls, among other moves. While there are liberal sheriffs, like Tom Dart of Cook County, Illinois, they are exceptions. Sheriffs are 95 percent white and 99 percent male, according to a 2015 study by Emily Farris and Mirya Holman.
The office of the sheriff is among our more ancient inheritances from the English legal system, predating even the Norman Conquest—kings appointed shire-reeves to act as their delegates in counties, collecting taxes and enforcing laws. In 1634, Northampton County, Virginia, appointed the New World’s first sheriff, and 18 years later, it made the job elective. Nearly every state has sheriffs, and in most states the office is written into the state constitution as the highest elective office in any county. In some states, a coroner is the only official who can arrest a lawbreaking sheriff.
This may sound like arcane history, but in the minds of many sheriffs, it is neither academic nor remote. When then-Attorney General Jeff Sessions said in 2018 that “the office of sheriff is a critical part of the Anglo-American heritage of law enforcement,” some liberal critics were quick to denounce the remarks as racist. McFadden, though, proudly thrust a printout of Sessions’s speech at me to underscore the significance of his office.
Unlike local police, who are typically hired by city and town governments chartered by the state, sheriffs derive their power directly from the state constitution. No conversation with a sheriff lasts long before he points out that he runs an “office,” not a “department,” underscoring its autonomy. Sheriffs may depend on county government for funding—though they often have their own revenue streams, such as fees for gun permitting—but they answer only to voters.
In practice, though, voters have rarely asked their sheriffs to answer for very much. Casey LaFrance, an associate professor at Western Illinois University and former deputy sheriff, told me that many sheriffs serve three or four terms. Jobs often pass from a longtime sheriff to a hand-picked protégé—maybe even a son. Since 1931, three generations of the same family have served as sheriff of Pickaway County, Ohio, save one four-year gap.
But the job has changed dramatically. North Carolina gave America popular culture its most enduring image of a sheriff: the kindly, hands-on Andy Taylor on The Andy Griffith Show, set in a fictionalized version of Griffith’s own hometown of Mt. Airy. The life of a contemporary rural sheriff might bear some similarities to Taylor’s, but a big-city sheriff has more in common with a chief executive officer than a small-town cop. While Sheriff Taylor had only Barney Fife as a deputy, the Mecklenburg County Sheriff’s Office employs more than 1,000 people and oversees a budget of around $120 million. Urban sheriffs typically leave policing the streets to city departments, and instead handle issues like gun permits, evictions, and especially jails. The Mecklenburg County detention center can house nearly 3,000 people.
There’s been extensive attention paid to prisons in recent years, but many more Americans pass through jails on an annual basis—some 10 million in 2017 alone. Many people spend weeks, months, or even years in pre-trial detention, without ever being convicted, simply because they cannot pay a bond. That has produced a growing backlash against the cash bail system. Jails are also on the front lines of dealing with people with mental illnesses and drug addictions.
Several of the new sheriffs are focused on jail conditions, and would prefer to talk about that than to discuss immigration. Birkhead has launched a review of how his jail functions, after nine deaths under his predecessor. Miller has created real-time dashboards to share information with the public about the jail population and, recognizing the number of addicted and mentally ill people who pass through the jail, is designing a medically assisted therapy program to treat them inside and find them support systems when they leave.
Mecklenburg detention center visits had been limited to video, but McFadden restored in-person visitation and is redecorating a room in nursery-style for in-contact visits by children to parents. He launched a detention center job fair to help residents find employment after their release. (In keeping with his own sartorial sense, he also overhauled a closet holding interview clothing for residents, which he has had replenished with more stylish duds and christened the “4th Street Haberdashery,” after the jail’s address.) McFadden told me he tries to visit the detention center every day.
But because of its political salience, the fight over immigration has tended to eclipse these efforts. Big-city sheriffs wield great power over the enforcement of immigration laws because of their jails. Sheriffs lean right overall, but especially on immigration. Holman and Farris have found that while sheriffs tend to be responsive to local political pressures on some issues, they put their personal views about immigrants and immigration policy ahead of their constituents’ preferences. Sheriffs say federal officials strongly influence their attitude toward immigration enforcement, while local police chiefs express more concern about maintaining good relations with the immigrant communities they police. Dan Thompson, a graduate student at Stanford, has found that Democratic sheriffs cooperate with ICE at almost the same rate as Republican sheriffs.
Cooperation takes a few forms. ICE works to identify unauthorized immigrants through NCIC and by sending officers to jails to screen for unauthorized immigrants. If the agency identifies people who have been arrested for local criminal charges who it believes are deportable, it can issue detainers to a sheriff’s office. Around 75 sheriff’s offices around the country have 287(g) arrangements with ICE, which trains officers and deputies to inquire about arrestees’ immigration status and place detainers on them. Since ICE has limited staffing to check jails, 287(g) allows it to catch people who might otherwise slip through its grasp.
For most of the American history, immigration enforcement was a largely federal matter. Local governments were neither empowered nor eager to enforce federal laws. That began to change in the mid-1990s, amid public backlash against illegal immigration. Congress created 287(g) in 1996, but it was little used until after 9/11, when President George W. Bush created the Department of Homeland Security, including ICE, and federal, state, and local agencies began working together more closely.
Meanwhile, public anger over illegal immigration continued to grow. In 2005 and 2006, a strict immigration bill died in the Senate, but not before inspiring some of the largest protests in American history. The marches were a crystallizing moment for Latinx political power, but they also drew a major backlash among white voters, Helen Marrow, a sociologist at Tufts, told me—especially in nontraditional immigrant destinations, like smaller cities whose numbers of immigrants were small, but growing quickly. State legislatures, especially across the south, began to pursue harsh anti-illegal immigration bills, like Arizona’s 2010 “Show Me Your Papers” law.
In Charlotte, then-Sheriff Jim Pendergraph realized 287(g) could be a powerful tool against illegal immigrants. While the program had mostly focused on violent criminals, Pendergraph directed deputies to screen for civil violations of immigration law, which fed more immigrants into the deportation system. Pendergraph was soon hired by ICE; in 2008 he told a conference of police chiefs and sheriffs, “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.”
North Carolina became the epicenter of 287(g), with more programs than any other state. One especially vocal participant was Alamance County Sheriff Terry Johnson, who styled himself after Arpaio’s methods and rhetoric, and who the Obama Justice Department unsuccessfully sued for the racial profiling of Latinos.
The relationship between federal and local law enforcement grew even closer during the Obama administration. In 2011, the federal government turned Secure Communities, a Bush-era pilot, into a mandatory national program, creating a direct link between local police and the federal immigration system. Secure Communities is one reason Obama deported more people than any other president, but it was eventually scaled drastically back due to concerns about racial profiling. Some sheriffs and counties also bridled at being forced to enforce federal law, especially without substantial funding from the federal government.
When Donald Trump was elected, many sheriffs were pleased to have an administration in place that would encourage them to enforce federal immigration laws. Enrollment in 287(g), which had dropped, shot back up. But progressive activists, recognizing that they would be shut out at the federal level for the foreseeable future, began to focus their energy on projects like sheriff accountability—echoing a broader shift toward local legislation on the left.
African American political power was crucial to the success of this movement. The 2006 Latino marches galvanized white voters against immigration, but that white backlash in turn galvanized African Americans in the South. There hadn’t been a close political connection between Latino and black communities across the region before, Marrow told me, but African American leaders recognized a parallel between racist policing in their own community and the harsh new policing and surveillance of immigrant communities.
“I’ve made this comparison—and people even in the African American community get mad at me sometimes—I compare 287(g) to the Fugitive Slave Act,” Dawkins said. “If you made it up North, you are free, but the federal government came up with an act that said, you can go across the border to the northern states, deport them back to the South and put them into bondage. To me that’s the spirit of 287(g).”
It’s not a coincidence that the coalition of groups that has focused on sheriff accountability in North Carolina speaks the language of intersectionality and includes predominantly black, Latinx, and LGBTQ groups. Despite their alliance of convenience, both the new sheriffs and these groups acknowledge the inherent tension between their goals. While they may agree on some policies, they arrive there from very different angles. Many of the activists favor abolition of jails and the police altogether. Activists are conscious of the difficulties the new sheriffs face, but that doesn’t mean they’re willing to give them a pass. Forward Justice, a Durham-based group, gave Birkhead a report card on his first 100 days with grades ranging from A to D.
“Birkhead has taken on a pretty challenging project,” said Sendolo Diaminah, an organizer in Durham. “Sheriffs’ offices, especially in the South, have a very long racist and class-driven history. He’s thrown himself into the middle of that and said he would reform it. We want to transform it.”
That difference in perspective is clear from the way people talk about ICE. Activist groups tend to view non-cooperation with ICE as a moral duty to ensure social justice for immigrant communities. The cops, being cops, frame their stance differently. First, they point first to the importance of local control, as mediated by the ballot box. They ran on the promise to end 287(g) programs and detainers, and the citizens of their counties elected them. Doing anything else would betray the voters’ trust.
“One of the things that I understand is that each county has its own personality,” Kimbrough told me. “Each county across the country is different. The men and woman that have been elected in those counties do what is right for their county—right, moral, and legal.”
Second, they say they’re just protecting public safety, because mixing immigration and local law enforcement creates distrust between Latino communities and the police. McFadden said that a “stop snitching” ethos was a major problem when he worked murder cases: Witnesses would acknowledge they knew what happened but would refuse to tell him. Getting people to speak when immigrant communities are worried about deportation is difficult, he said. As academics who study the interaction between police and immigrants have documented, victims don’t call the police or file complaints and witnesses slip into woodwork.
“I'll be shot, I'll be beat up, I’ll be robbed, and I won’t be a victim because I'm afraid of law enforcement, afraid of the policía,” McFadden said. “That was a huge barrier for me as a detective. Anybody can say what they want. I experienced it firsthand for three decades.”
Third, sheriffs argue not only that they’re on solid legal ground by declining to participate in voluntary programs, but that they’d risk violating the Constitution by cooperating. Once an arrestee meets court-determined conditions for release, the sheriff releases them. An ICE detainer asks a sheriff to hold a suspect longer, and the administrative warrant that accompanies it is signed by an ICE officer but not a judge. The sheriffs say that may violate the Fourth Amendment, pointing to a decision in the Fourth U.S. Circuit Court of Appeals, which includes North Carolina.
“To ask a law-enforcement officer to detain someone for up to 48 hours without basing that detention on probable cause amounts to a new arrest,” Birkhead told me. “Every arrest that I’ve ever participated in in my 30-plus years of law enforcement must be based on probable cause. To me it’s unlawful.”
Advocates say that ICE often makes mistakes in the process, too—for example, confusing people with similar names. People who have been wrongly detained often sue, and it’s the local sheriff’s offices and counties, which is to say local taxpayers and voters, who end up footing the bill.
The solution, according to the detainer-rejecting sheriffs, is simple. They want ICE to go before a judge and get a warrant, rather than offer a civil request. That creates additional work for ICE, but Kimbrough, who worked for more than 20 years the U.S. Drug Enforcement Agency, says it’s not too much to ask.
“I can literally hit my 8-iron from the magistrate office to the U.S. court. Literally a pitching wedge,” he said. “That’s where the office of ICE is located. If you really want a man that bad you can get a signature in two hours.”
He bristles at the idea that sheriffs aren’t working with ICE, and said he’s on a first-name basis with the federal agents in Forsyth County. “I wouldn’t thumb my nose at the feds. I know the power of the federal government. I once was the federal government! I know the wrath of the federal government,” Kimbrough said. “I don’t do politics. I do what is right.”
Carmichael, the former Mecklenburg County sheriff, says the demand for a warrant is foolhardy.
“Why do you make ICE jump through more hoops?” he said. “Why do you not want to know who’s in your community? You should cooperate with them. I want to know, for the safety of my officers, who they’re dealing with, and for the safety of the community.”
Moreover, Bryan Cox, a regional spokesman for ICE, noted that since a first illegal crossing is civil violation, ICE cannot obtain a criminal warrant unless someone has already been deported once.
“They are asking for something that literally is impossible. They are asking for something that does not exist under federal law,” Cox said. “Under the Immigration and Nationality Act, passed by Congress, immigration is civil law. Basically, what they’re saying is: federal law on the criminal side of the house they honor, but anything to do with civil and administrative law they do not honor.”
He said that if sheriffs are unwilling to honor detainers, ICE would prefer that they inform the agency when they release people so that ICE can arrest of them outside the jail, as some sheriffs who do not honor detainers do. If they don’t, Cox said, ICE will still seek to arrest unauthorized immigrants, just as it did with Pineda-Ancheta, and he said those arrests can actually result in more of the kinds of tense encounters between immigrants and law enforcement that McFadden says are so harmful.
“If ICE is not able to take custody of that person at the local jail, ICE is sworn to enforce federal immigration law, with or without local cooperation,” Cox said. “ICE has no choice but to send officers into the community to search for that criminal target. That has a direct effect of increasing ICE’s presence in the local community, not reducing it.”
In any case, ICE has not begun seeking warrants. Instead, the agency has continued submitting detainers, which sheriffs have ignored. Birkhead said he has invited ICE to meet, but has been ignored himself. ICE and the sheriffs are now locked in a highly unusual public feud. It began the night that McFadden won his primary, with ICE warning that if he followed through on his promise to withdraw from 287(g), the agency would have no choice but to increase immigration raids around Charlotte. When McFadden went through with the withdrawal, ICE did ramp up raids, but it couldn’t force him to stay in the program. To him, that demonstrated the impressive power of the sheriff’s office.
“The federal government knows that I have the power to say no. You can blast me in the media and you can create other things, but all I have to say is, I'm not participating in this voluntary program,” McFadden told me. “That’s why it’s so important that we know the power of the sheriffs. I can change people’s life by a decision I make. I can take that decision and I don’t have to ask anybody to make that decision.”
State legislators had other ideas. In March, Republicans in the North Carolina House of Representatives filed a bill that would force sheriffs to honor ICE detainers. Those who don’t comply could be removed from office.
“At the end of the day, this is about public safety—it’s as simple as that,” Representative Destin Hall, one of the bill’s primary sponsors, said at a hearing in April. “These sanctuary sheriffs are simply putting partisan politics ahead of public safety. That’s the reality, can’t escape it.”
Rather than being simple, however, the bill, styled HB 370, is a Frankenstein’s monster of federalism: State legislators telling county officials to comply with federal law as interpreted by a state magistrate. The bill requires that state magistrates review detainers. In theory, that relieves sheriffs of decision-making power. But Susanna Birdsong, an attorney with the ACLU of North Carolina, told me that magistrates—who aren’t required to have law degrees—aren’t equipped to interpret federal law, meaning they’ll serve as a rubber stamp. Nor will the workaround protect sheriffs’ offices from civil liability if there’s a wrongful detention, Birdsong said.
After opposing an earlier draft of the bill, the NCSA gave the current version a strong endorsement, but Birkhead, McFadden, Miller, and Kimbrough all told me they oppose the bill, and Rogers told the Greensboro News & Record he does too. Miller worries the NCSA is failing to recognize an attack on the powers of the sheriff. Politics aside, surrender on this bill will only invite legislators to further erode sheriffs’ powers in the future, he said.
One reason the NCSA ended up backing the bill is simple math: Although the black sheriffs of the seven biggest counties represent nearly 4 million of the state’s 10 million residents, there are 100 counties, many of them more rural and conservative, and each with its own sheriff. The Old North State has seen a long battle over local power in recent years, as the state’s liberal cities try to push through local policies and the state legislature, dominated by rural conservatives, enacts laws that preempt their authority. (Preemption battles cut both ways: In 2017, Democrats in California passed a law limiting local law enforcement cooperation with ICE, which drew protests from conservative sheriffs, police, and communities, and has been challenged in court.) Inevitably, those preemption battles have taken on a racial dimension, given large non-white populations in cities.
“I’m new to being a sheriff, but I’m not new to being a man of color,” Miller said. “If you can’t see what this is about, I can’t help you.”
With Republicans in control of both houses of the General Assembly, and with the NCSA backing the bill, its passage was basically assured. But on June 20, Baker, McFadden, and Miller visited the General Assembly for one last push against the bill. Speaking alongside Democratic lawmakers, and with a crowd of immigrant advocates looking on, they delivered their well-rehearsed case against the bill.
The sheriffs were still agitated, but they didn’t have any illusions about persuading the Senate. This was a battle to capture Cooper and public opinion. The governor long held his tongue about the bill, conscious of the political danger: Veto it and risk being seen as soft on crime; sign it and risk a furious backlash from the progressive groups and urban, liberal voters he needs to win reelection next year.
“HB 370 is not about protecting our community,” McFadden told a huge battery of cameras. “The house bill clearly is about attacking a select group of sheriffs who now have been carefully identified by using code words such as ‘urban sheriffs,’ ‘sanctuary sheriffs,’ and the one that I heard in this house that was more disturbing than anything else, the ‘super minority-majority sheriffs,’ simply meaning to me the newly elected African American sheriffs of the seven largest counties in North Carolina.”
The anti-detainer sheriffs said they’d follow the law if it passed. But if ICE detainers violate the Constitution, as they contend, and not honoring detainers becomes a violation of state law, it remains unclear what they will do.
Later that afternoon, the Senate Judiciary Committee met in a packed hearing room to approve the bill. Outside, sergeants-at-arms tried to corral an overflow crowd. Inside, a nervous energy tingled, with legislators, sheriffs, the press, and bystanders all girding for the confrontation to come. After eight years of GOP control in Raleigh, the routine for these hearings is familiar: Republicans introduce the legislation, Democrats raise a series of objections, and Republicans cordially but tersely dismiss them. Members of the public speak briefly, and then the Republicans vote to move the bill forward.
During the public comments, McFadden and Baker once against lashed out at lawmakers for grandstanding and refusing to meet. A woman who identified herself as an unauthorized immigrant spoke through a translator, calling the bill “racist and unconstitutional.” Then Representative Brenden Jones, one of the bill’s primary sponsors, spoke, and all hell broke loose.
“Do you see 100 sheriffs back here? Must be a pretty good idea then,” he said. “We’ve got three or four. This is common-sense legislation that has been thrust upon us by a few that refuse what they’re supposed to do. This is going to make these guys do what’s right for the citizens of North Carolina.”
McFadden and Baker stalked out. Immigrant activists shouted at the lawmakers as sergeants-at-arms hauled them away. The committee voted to move the bill along, but tension remained: As the meeting dispersed, several legislators got into a heated argument in the back of the room. I found an agitated, wide-eyed McFadden in the lobby.
“Wooooooow. Wooooooow,” he said. “That was as racist as hell. Wooooooow!”
HB 370 passed the Senate on June 24, and the House and Senate versions still have to be reconciled. But hours before the Senate vote, Cooper announced his opposition to the bill. Because voters ended Republican supermajorities in the General Assembly in November, when they also elected the sheriffs, Cooper’s veto would likely to be sustained. “As the former top law enforcement officer in our state, I know that current law allows us to lock up and prosecute dangerous criminals regardless of immigration status,” Cooper said in a statement. “This bill isn’t about that—in addition to being unconstitutional, it’s about scoring political points and using fear to divide us.”
It’s common for politicians to dismiss their opponents’ measures as mere point-scoring. But writing off politics as the dirty underbelly of governance, as Cooper did, misses a bigger point. Politics gave Republicans a supermajority and then took it away. Politics elected Irwin Carmichael and then Garry McFadden. And politics is the way voters decide what sort of policies they want from their sheriff—at least for now.
This post originally appeared on The Atlantic.