This year's race for Durham County sheriff could be pivotal for how the agency interacts with Immigration and Customs Enforcement.
Clarence Birkhead, a former Duke University and town of Hillsborough police chief, is vowing to do things differently than Sheriff Mike Andrews if he succeeds in the Democratic primary on May 8—his second attempt to unseat Andrews.
Over the past year, Andrews has frequently been criticized for unclear statements about his agency's relationship with ICE and for honoring so-called ICE holds, constitutionally problematic requests from ICE to hold people in local jails after they otherwise would have been released so that ICE can assume custody.
A thirty-eight-year veteran of Durham law enforcement, Andrews was sworn in as sheriff in 2012 after retiring Sheriff Worth Hill selected him to finish out his term. In response to community concerns, Andrews selected an officer to serve as the liaison to the Hispanic community and has staffed a Spanish-speaking officer at the county jail. Under Andrews, the agency also accepts Faith IDs, a non-government-issued form of identification. Andrews told ABC11 he contacted state legislators to oppose a 2017 bill that would have prohibited law enforcement agencies from accepting Faith IDs.
What's more, the DCSO "does not, has not and will not participate" in the federal 287(g) program, which deputizes local officers to carry out some immigration enforcement duties, Andrews wrote in response to a questionnaire from the People's Alliance PAC, which endorsed him over Birkhead in 2014. (Andrews wasn't available for an interview before press time.)
In public statements, the agency has variously said that it does and does not participate in another ICE program called Secure Communities, through which booking information makes its way from local jails to the Department of Homeland Security. In North Carolina, the information-sharing aspect of this program is basically unavoidable—fingerprints and other booking information are sent from jails to the State Bureau of Investigation, which is linked to the FBI's database. Federal law mandates that the FBI share that information with Homeland Security.
Local jails, however, do have some latitude in whether to honor requests from ICE to continue to hold people who land on the agency's radar as a result. In January, then-DCSO spokeswoman Tamara Gibbs told the INDY that all detainer requests are honored at the Durham County Detention Facility. Asked for a copy of the policy by which jail staffers decide whether to honor a detainer request, Gibbs said that "at last check, the staff had no specific policy that addresses this question."
Last year, 114 people were held at the Durham jail under ICE holds, including 57 who were released directly into ICE custody.
Multiple courts have found that detainers amount to a new arrest under the Fourth Amendment, and that the administrative warrants that typically come with them—which merely require an immigration officer, rather than a judge, to attest that someone is deportable—are not sufficient proof that probable cause exists to continue to hold a person who would have otherwise been released. Just last month, a federal judge in California ruled that the Los Angeles County Sheriff's Department had violated thousands of inmates' constitutional rights by holding them on ICE detainers. (Andrews didn't respond to an email from the INDY asking why all ICE detainers are honored and if he would keep that practice if re-elected.)
Birkhead says that, if elected, he would have a more open dialogue with the agency's critics and would allow members of the public to tour the jail "in a controlled manner." Building trust with Durham's Hispanic and immigrant communities would be part of a larger effort to increase transparency and public engagement that would also include the establishment of "an office that is a liaison to all people," particularly communities of color.
"I think the main difference I will bring is having conversations with those who want to protest," he says.
Birkhead served as Duke's police chief from 1998–2005, when he became chief of police in Hillsborough. He left that post in 2010 to run for Orange County sheriff but was unsuccessful. (A few months later, it was made public that the Hillsborough department was being investigated for improper recordkeeping at the direction of an accreditation manager during Birkhead's tenure.)
He was associate vice president of safety and security at Queens University until 2012 and has worked as a security consultant since. In the 2014 primary, Birkhead won about 39 percent of the vote, to Andrews's 56 percent.
If he becomes sheriff, Birkhead says he will only honor detainer requests that come with a judicial warrant or an outstanding warrant for arrest.
"If the federal government wants to criticize us for not honoring detainers, I'm OK with that, because I think the community at large will be appreciative of that approach and appreciate us being good stewards of local resources," Birkhead says. "There's nothing in the federal law that says I must participate."
The change would bring Durham County's policies more in line with Orange County, which, since Sheriff Charles Blackwood took office in 2014, has not honored detainer requests "unless continued custody is supported by probable cause to believe that a criminal violation of federal immigration law has occurred"—for example, by a judicial or outstanding warrant.
"Enforcement of federal laws should be accomplished by federal actors and not by local law enforcement," Blackwood says. "I am committed to being responsive to the needs of all members of our community regardless of a person's immigration status."
Blackwood is also up for reelection this year and faces a Democratic challenger in Tony White, a former investigator with the Orange County Sheriff's Office whose platform emphasizes reforms within the agency.
Blackwood began his law enforcement career with the OCSO in 1980 and retired as major of operations in 2012 to run for sheriff. In a statement, he identified emergency services infrastructure, opioid use, racial disparities in the criminal justice system, and school safety as challenges he'd like to address.
White worked for the Orange County schools' transportation department for nine years before joining the OCSO in 1997, serving in the resource officer and patrol divisions before joining criminal investigations. He retired in 2016 for personal reasons, on which he declined to elaborate.
White told the INDY that he would cut spending, engage more with local youth, work to prevent drug overdoses, and "have more of a diverse department" if elected. "I would ensure that everyone—regardless of who they are, where they live, what color, what race or religion—that they get treated the same," he says.
On immigration enforcement, White says he isn't fully familiar with the OCSO's current polices, but he is "totally against the ICE program." He says he would have to look into his obligation to honor detainers with administrative warrants, but he would only honor requests accompanied by valid warrants with which the Sheriff's Office is obligated to comply.
The primary is May 8. There are no challengers from outside the Democratic Party in either the Orange County or Durham County sheriff's race.