A federal judge has turned aside a lawsuit from a group of Illinois sheriffs, who claim a state law that prevents them from participating in federal immigration enforcement is unconstitutional, because it would force sheriffs to violate their oath of office to defend the U.S. Constitution.
U.S. District Judge Iaian D. Johnston ruled in federal court in Rockford that the sheriffs lack standing in their suit. He gave the plaintiffs until Feb. 16 to file an amended complaint; if they fail to meet the deadline, the case will be dismissed with prejudice, meaning they will not be allowed to attempt to sue on the question again.
At issue is the Illinois Trust Act, which prohibits local and state law enforcement from detaining a person on the basis of their immigration status. It also prohibits law enforcement from complying with requests for such detention from federal Immigration and Customs Enforcement (ICE).
The lawsuit is led by three Illinois county sheriffs, including Ogle County Sheriff Brian Vanvickle, Stephenson County Sheriff David Snyders and Kankakee County Sheriff Mike Downey.
The sheriffs filed suit in 2020 in U.S. District Court in Rockford.
The sheriffs want to aid ICE with immigration enforcement, Johnston wrote. They claim the state has put them in a bind – complying with state law, they argue, requires them to violate the oath they swore when they took office to uphold the U.S. Constitution.
The state argued the sheriffs suffered no concrete personal injury, a requirement to show legal standing - a requirement to sue in federal court.
“As [the plaintiffs’] brief acknowledges, the claim amounts to a pre-enforcement challenge to the Illinois Trust Act,” Johnston wrote in his decision. “But this challenge presents multiple standing issues.”
A plaintiff who has not been arrested can still challenge a law’s constitutionality by showing there is a credible risk of prosecution if they violate a law for the sake of a constitutional interest, Johnston wrote. There is no question that the sheriffs intend to cooperate with ICE in violation of the state statute – the question is whether there is a constitutional interest and whether their actions put them at risk for prosecution.
While most pre-enforcement challenges deal with First and Second Amendment rights, the sheriffs’ argument hinges on their oath to uphold the Constitution. Johnston opined that no standing pre-enforcement cases interpret the constitutional interest requirement so liberally as to include an oath of office.
Even if violating an oath of office were enough to confer standing, the argument would fail, Johnston wrote, because complying with the state law does not violate any federal laws. ICE detainer requests are requests only – they are not mandatory. Law enforcement is free to deny the request without running afoul of the law.
Besides being unable to prove a constitutional interest, the sheriffs also failed to present a credible threat of prosecution, Johnston wrote. He said nothing in the Illinois Trust Act outlines civil or criminal penalties for officials who violate the Trust Act. It actually provides immunity to officials acting in good faith, the judge said.
Two of the sheriffs have already been subject to civil actions because they detained people in violation of the act, the plaintiffs said. They also argued that the U.S. Attorney General has sued states for limiting local law enforcement’s ability to cooperate with ICE.
Johnston found those allegations insufficient to persuade him to allow the case to move forward.
“Plaintiffs have not sufficiently shown that they will continue to be subject to litigation in the future,” he wrote. “They have not alleged that they will continue to receive ICE detainer requests. …Any litigation by the Attorney General of the United States to challenge laws like the Illinois Trust Act would likely not name the plaintiffs directly as defendants. The proper defendant in that action would be the Illinois Attorney General, not the 102 sheriffs in Illinois.”
Johnston dismissed the case without prejudice, noting that he had not addressed the merits of the case, only the plaintiffs’ standing.
The sheriffs have been represented in the action by attorneys Dana A. Sarros and Mark J. Crandley, of the firm of Barnes & Thornburg Llp, of Chicago and Indianapolis.
The state of Illinois has been represented by the Illinois Attorney General's office.