In an interview a few days ago, the Commissioner of the Department of Corrections in Minnesota raised what I think is a very worthwhile question.
On Friday’s broadcast of NPR’s “All Things Considered,” Minnesota Department of Corrections Commissioner Paul Schnell discussed cooperation between local sheriffs and immigration officials and said that “having judicial orders or detainers or holds that are signed by a judge would address this issue. But, to date, we have not seen a willingness on the part of DHS to pursue those.”
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"... sheriffs are in a very difficult position, because they face legal liability if they hold people beyond their appointed time. And having judicial orders or detainers or holds that are signed by a judge would address this issue."
There's more at the link.
That may be a smokescreen, of course, glossing over the real issue that Minnesota's policy is not to cooperate with Federal authorities over immigration issues, including arrests. However, the question of administrative versus judicial orders or detainers is, I submit, more important than it may seem at first glance.
In criminal law, a warrant is typically required to arrest someone or search their property. These types of warrants must be issued by a judge; thus, they are also known as “judicial warrants.”
A judicial warrant is a document issued by a judge (or magistrate judge) that authorizes law enforcement officers to perform certain actions (like conducting a search, making an arrest, or seizing property). Judicial warrants are typically issued based on probable cause, which means there must be reasonable grounds to believe that a crime has been committed and that the action authorized by the warrant will yield evidence related to that crime. These warrants serve as a safeguard against unreasonable searches and seizures, ensuring that law enforcement actions are conducted within the bounds of the law and respect individuals' constitutional rights.
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An administrative warrant doesn’t need to involve a judge or court at all (though an administrative law judge may review some). Instead, it’s issued by an administrative agency or official, as the name implies.
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Administrative warrants are used for regulatory or administrative purposes, not criminal prosecution. Another difference is that administrative warrants generally have a lower standard than "probable cause,” which is required for judicial warrants. Finally, administrative warrants are based on statutory authority rather than Fourth Amendment requirements (like judicial warrants).
Judicial warrants typically deal with criminal law, whereas administrative warrants typically deal with civil law. That’s part of why the standard for a judicial warrant is higher: life and liberty are on the line. That’s also why judicial warrants will be in the form of either arrest warrants (to apprehend a suspect), search warrants (to search a specific location for evidence of a crime), or seizure warrants (to seize specific property or evidence related to a crime). Judicial warrants are considered more protective of individual rights, as they require a neutral judge's independent review of the evidence and a finding of probable cause.
Again, more at the link.
I can see both sides of this issue. ICE and other federal agencies often try to arrest hundreds, even thousands of people in a given area (a city, a suburb, at an employer's premises, etc.). To get individual judicial warrants against every potential suspect in that area might be so great a burden on their administration that it's effectively impossible. However, that also runs a greater risk that some, at least, of those they arrest might have their civil rights ignored in the process. We've already seen reports of that; for example, US citizens arrested and detained for extended periods (sometimes days or even weeks) until they could prove they were legally resident in this country. ICE and its defenders will protest that they could have produced such proof at any time, but if they were denied access to telephones and other means of communication (a routine occurrence, or so I understand), how were they to ask a family member or other person to deliver such proof? If they lived alone, how could they get such proof from their place(s) of residence when they were detained, preventing them from traveling to their homes?
A judicial warrant demands a higher standard of proof from law enforcement authorities before they can make an arrest. If a suspect's rights are to be restricted or infringed by arresting him/her, a judge or magistrate must confirm that there is enough evidence to justify that interference. The warrant can also be challenged in court, as can the process leading to its being issued. If an officer mistakenly asks for a judicial arrest warrant because he/she had unreliable or insufficient information, that can be held against the officer if it comes out in court. An administrative warrant lacks all such protection - it was (normally) never reviewed by a judge or magistrate before being issued. In so many words, it's nothing more than a bureaucratic rubber stamp.
I'm firmly of the opinion that illegal aliens should be deported, except for genuine, repeat, genuine, verifiable cases where refugee status might be awarded. However, regardless of one's perspective on immigration, I think the use of only administrative warrants for mass arrests is legally questionable, and might become a tool of actual oppression if the "wrong people" issue such warrants without judicial scrutiny. I think ICE may have to reconsider this issue. Certainly, I'll be more comfortable from legal, moral and ethical perspectives if they do.
At the same time, those opposed to enforcing immigration laws will have to accept that it's a federal government issue, not a state or local issue. If they want to protest it, there are legal avenues for them to do so. To physically assault federal officers in the performance of their duties is not one of them; nor is using state and local laws and regulations to obstruct and interfere with their operations. Administrative warrants are too often used as an excuse to disrupt such legitimate law enforcement activities, without examining the rights and wrongs involved.
Peter
