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VA Supreme Court upholds dismissal of ACLU challenge to Culpeper 287(g) program
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VA Supreme Court upholds dismissal of ACLU challenge to Culpeper 287(g) program

ACLU gathering

People gather in Yowell Meadow Park in 2018 to support the ACLU’s 287(g) suit against Culpeper’s sheriff.

The Virginia Supreme Court has upheld a local court’s earlier finding that Culpeper County’s top lawman is authorized to work with federal immigration officials to detain criminal, undocumented immigrants in the county jail through the controversial 287(g) program.

Justice S. Bernard Goodwyn, in an Oct. 22 written opinion, affirmed a May 2019 Culpeper County Circuit Court opinion that Sheriff Scott Jenkins is legally allowed to maintain that arrangement with U.S. Immigration & Custom Enforcement. ICE’s 287(g) program allows jail deputies processing inmates to screen them for documentation status and issue 48-hour detainers. Jenkins entered into an agreement in April 2018 to enact the program in the county jail.

Culpeper County is now the only locality in Virginia with 287(g). Prince William County ended its participation in June.

Critics say the 287(g) program alienates residents and creates fear in immigrant communities.

The Virginia ACLU challenged the legality of the Culpeper program and sought to end it with a November 2018 civil filing against Jenkins and the Culpeper County Board of Supervisors, which the lower court tossed out. Its lawsuit argued that state law and the Virginia Constitution do not allow sheriffs or deputies to enforce federal, civil immigration law. But a Circuit Court judge found Jenkins was authorized to enter into the ICE agreement.

The suit also claimed the local program was illegally funded with local tax dollars. It included two local taxpayers, Michael McClary and Christian Stockton, among its plaintiffs.

Justice Goodwyn’s recent eight-page opinion addressed the tax issue. It offered more insight into the scope of the 287(g) program, saying it gives the Sheriff’s Office authority “to interrogate any person they detain about the person’s right to be or remain in the United States, to serve warrants for immigration violations … issue immigration detainers and to detain and transport arrested aliens … subject to ICE removal to an ICE-approved detention facility.”

Goodwyn found that the ACLU suit was not specific enough in stating local costs used to fund the federal program. The plaintiffs argued they did not need to provide specific local costs to establish standing, that it would be too “hyper-specific” of a standard, the justice wrote.

“We disagree,” the opinion stated. “Standing requires that a party must show ‘a personal stake in the outcome of the controversy’ … Typically, to establish standing, a plaintiff must allege a particularized injury that is separate from the public at large.”

Goodwyn added the court has recognized a local taxpayer’s standing to challenge local government expenditures even when no such injury is alleged. But, he added, “When a taxpayer challenges a policy, the complaint must do more than identify a policy that the plaintiff disagrees with.”

The complaint must contain allegations of specific costs or expenses connected to the policies implemented, but the ACLU lawsuit addressed it “only in broad strokes,” the justice found.

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“ … local taxpayers have an interest in the application of their revenue and have the common law right to challenge expenditures,” Goodwyn wrote. “McLeary and Stockton have not identified, with sufficient specificity, any additional expenditures … that would give rise to local taxpayer standing in this instance.”

Goodwyn said the Culpeper County taxpayers “merely identified a policy they disagree with and stated that any expenditures related to that policy were unlawful.”

The justice called the allegations against Jenkins and the Board of Supervisors “vague, speculative and conclusory.”

Sheriff Jenkins issued a statement Thursday saying the Virginia Supreme Court opinion “confirmed what people with common sense have known all along – the Culpeper Sheriff’s Office cooperation with federal law enforcement on illegal immigration is entirely appropriate under the law.”

He said the 287(g) program “is used to identify illegal aliens in the country who are housed in local jails on other charges … The Court brushed aside McClary and Stockton’s suit, saying that it amounted to nothing more than their disagreement with the sheriff’s policy decision to enter into the 287(g) agreement.”

Jenkins said, “I knew I was right all along in my understanding of the 287(g) program, and am pleased that the Virginia Supreme Court has confirmed my understanding. I appreciate the enormous community support and will continue to do everything in my power to keep this community safe while upholding and defending our Constitution.”

McClary, a veteran and retired federal worker, said the plaintiffs lost the suit on a technicality. Responding to the sheriff’s statement, McClary called it “very Trump-ian of Jenkins to call us out publicly so his rabid supporters can post their ugly comments. I reported it to FB as harassment—I doubt it will amount to anything.”

McClary, a member of the Culpeper Democratic Committee, has written editorial-page columns for the Culpeper Star-Exponent.

The Virginia ACLU also took issue with the court’s opinion.

“The 287(g) agreement signed by the sheriff encourages racial profiling, erodes trust between police and the community, and wastes taxpayers’ money on targeting people of color. Culpeper residents should have the right to sue when their funds are used illegally,” said Eden Heilman, legal director of the ACLU of Virginia. “We call on the Virginia General Assembly to ban 287(g) agreements to protect all our communities and end this xenophobic policy in Culpeper.”

Moreover, the ACLU of Virginia said in a statement that it strongly believes the court’s narrow interpretation of the requirements of “standing” to bring lawsuits challenging local government action undermines the ability of Virginians to hold their public officials, including sheriffs and other law-enforcement agencies, accountable in court when they violate the constitution or laws of Virginia or the United States.

“In this case, the Court’s decision encourages opaque bookkeeping by local governments as a means to avoid being called to account for illegal expenditures,” the ACLU said.

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