There’s a Constitutional Sheriff in Town

By Patrick Sullivan | July 29, 2017

There’s a debate across the country about how much local officials should cooperate with federal immigration enforcement. It’s come into sharp focus in Benzie County, where Sheriff Ted Schendel has proclaimed he’ll do whatever he can to assist.

In some ways, Schendel is no different than other sheriffs in Michigan who comply when requested to hold suspected noncitizens for Immigration and Customs Enforcement agents for up to 48 hours.

But Schendel, who identifies himself as a “constitutional sheriff,” has some residents and immigrant-rights activists concerned that he’s willing to go much further and interpret the law so that he can enact a right-wing agenda.

A RAPID DEPORTATION
The debate over cooperation with ICE is fiercest at the county level because sheriffs run local jails, and ICE wants access to those jails in order to identify and detain people they view as deportable.

Take this arrest in Benzie County on April 22, for example: Late at night, a deputy pulled over a Mexican citizen for speeding and arrested him for drunk driving. Two days later, the man was turned over to ICE, and within days he was deported, said Father Wayne Dziekan, a priest who works with the migrant community through Saint Francis of Assisi Catholic Church in Traverse City.

Dziekan said that deportation wouldn’t have happened in some other places, though it likely would have happened elsewhere in northern Michigan. That’s because it is optional for sheriff’s departments to cooperate with ICE requests, and the way ICE seeks to hold some suspected noncitizens might be unconstitutional.

“ICE holds have been found to be in violation of the Constitution in nine federal jurisdictions around the country, but the Benzie sheriff believes in his own interpretation of the Constitution, not what any court, judge, or law might say,” Dziekan said.

Dziekan said Schendel is uncommonly brazen about his aggressive immigration enforcement. A lot of departments around the country carry out extreme immigration enforcement, but they attempt to hide what they are up to, he said.

“He’s so brash on all of this,” he said. “Most of them do it, but then if you confront them, they would say, ‘Oh, we would never do that.’”

Dziekan took part in a May 23 panel discussion with Schendel about immigration enforcement in Benzie County. He said he had no illusions that he would be able to persuade Schendel to change his policy, but he said people need to be aware of what’s going on.

Dziekan said he believes local law enforcement shouldn’t be enmeshed with immigration enforcement. The migrant community needs to be able to trust local law enforcement so that they will report crimes and cooperate in investigations, he said. Additionally, the criminal justice system is set up for the express purpose of deterring and punishing crime. When someone is arrested for drunk driving, they should be charged with drunk driving; officers should patrol and enforce the laws “without giving one hoot” about immigration status, he said.

“Nobody’s saying that [the deported man] shouldn’t be charged with drink driving, you know. I don’t want drunk drivers on the road,” Dziekan said.

A MURKY LEGAL QUESTION
Schendel’s department, like departments across Michigan that cooperate with ICE, is operating in a legal gray area since numerous federal courts have determined that the administrative warrants — as opposed to judicial warrants — used to hold suspected noncitizens violate due process. 

Susan Reed, supervising attorney for the Michigan Immigrant Rights Center, said the constitutionality of the administrative warrants is cloudy. 

“The Supreme Court [hasn’t] outlawed them; I would say courts have questioned them, and courts have pointed out that they may be unconstitutional because they are based on less than probable cause,” Reed said. “I think it’s fair to say that it’s a cloudy legal issue.”

That means counties that cooperate with ICE could one day be on the hook for violating individuals’ constitutional rights. On the other hand, Reed said, there is no question that detainer requests from ICE are optional, and local officials can ignore them without legal consequence.

A group called Concerned Citizens for Benzie County formed to ask Schendel to moderate his immigration enforcement policy earlier this year.

The group helped set up the panel with Dziekan and met with Schendel privately in June to discuss concerns (a recording of that meeting was provided to the Express) but has failed to change Schendel’s mind.

The group contends that Schendel, as a “constitutional sheriff,” is aligned with the far right and that he’s boasted that he interprets the law and the U.S. Constitution the way he sees fit.

Schendel said he is merely answering a call for help from federal officials.
“Homeland Security put out a new directive, an executive order from President Trump, which is called the Enhance Public Safety in the Interior States,” Schendel told the Friends group at the meeting. 

Under Schendel, Benzie County has become what many say is the opposite of a sanctuary city, a place where police and officials ignore immigration status in the interest of calming fears in immigrant communities. In Benzie County, if you are not in the country legally, and you have contact with the police, there is a good chance you will be turned over to ICE and deported.

That’s because Schendel is willing to go further than detaining suspected noncitizens when they have committed crimes. He said his deputies would detain a passenger in a vehicle that’s been pulled over if ICE wants that person.

In an email to the Express to clarify this point, Schendel wrote: “A passenger is not required to produce ID. Although they would be asked, and if they cooperated and provided information, they would be run through the system to see if there were any outstanding warrants. If they came back as illegal, it would not be uncommon to contact ICE directly. If they responded they wanted that individual, we would hold for them. That’s when the detainer and arrest warrant would kick in.”

PASSENGERS IN IN PERIL
Although it has not happened in Benzie County, the detention of someone who had not otherwise committed a crime seems to cross from a gray area into a clear violation of constitutional rights, said Marcelo Nazario Betti, a Traverse City attorney who specializes in immigration law.

His reasoning: While the act of illegally crossing the border is a crime, it’s not a crime to be in the country without permission. That’s a civil matter, and the only officials authorized to detain people off of the street for immigration violations are federal agents, Betti said.

Betti said the degree to which Schendel believes officers should check immigration status and detain people for ICE sets him apart.

“That to me is the part that I think is really questionable,” he said. “That is the part that sounds to me like local law enforcement overstepping their bounds.”

In Grand Traverse County, Sheriff Tom Bensley said his department has no immigration policy, but he cooperates with ICE.

“If we come across someone who is an illegal alien, and you can put this in capital letters, not an ‘undocumented resident,’ typically it will be on a complaint involving where they break the law,” he said. “We’ll call the feds. That’s how it is.”

In those cases, ICE is notified, and Bensley will honor 48-hour ICE hold requests.
Bensley said his deputies don’t target migrant communities, and they don’t go out looking for immigration violations. In cases where a suspected noncitizen is discovered, and they haven’t committed a crime, such as in a traffic stop, Bensley said they would notify ICE, but they wouldn’t detain the person.

Bensley said he is not a “constitutional sheriff” and doesn’t believe that identifying as one confers any special powers.

BEING A “CONSTITUTIONAL SHERIFF”
Some Benzie County residents are concerned about Schendel’s “constitutional sheriff” status and fear that it means he will operate his police agency with a right-wing agenda.

In 2013, Schendel won a “Grand Defender of the Constitution” award from the Constitutional Sheriffs and Peace Officers Association, a national conservative group that was formed to support the Second Amendment amid fears that gun rights were under attack from President Obama.

In an interview with 7&4 News about the award at the time, Schendel explained that he received the recognition because he vowed not to enforce any federal laws that restrict assault weapons, should any be enacted.

In the June meeting with the citizens group, Schendel renewed his vow not to enforce any gun laws that he thought violated the Second Amendment, and he said that, as sheriff, he was the ultimate arbiter of the Constitution in his county.

“What if the Supreme Court is incorrect in their interpretation of the Constitution?” Schendel asked during the meeting. “My law is already on the books – the Second Amendment.”

In the meeting recording, which citizens group members said is complete and unedited, Schendel does not back away from his statement that he is the ultimate decider of constitutional issues in Benzie County, but he did say he would have to think deeply before disagreeing with the Supreme Court.

“It’s tough for me to say I would do this or not do this, depending on how they ruled. I would kind of have to think long and hard on that,” Schendel said. But he added, “I have the right to say, ‘This is not constitutional.’”

In an interview with the Express, Schendel acknowledged that he made that statement in the meeting with the citizen group, but that later in the conversation he retracted it. He said he believes that, as sheriff, he is bound to follow the decisions of the Supreme Court.

Eric Lampinen, who was part of the group of citizens who met with Schendel, said he believes this issue is cause for concern when looking into how the Benzie Sheriff’s deputies police immigration law.

“Not only does he feel he has the right to interpret the Constitution, the more troubling part to me is, in real life, what does he do with his department?” he said. “Does he encourage the deputies to racial profile? What’s to stop him from doing that?”

Schendel said he is not motivated by racist beliefs and that his officers do not target people they suspect to be noncitizens.

Lampinen said he doesn’t believe Schendel is hiding a racist agenda but worries that Schendel is following the lead of an organization with white supremacist ties and that Schendel might be enacting policy that serves racist ends.

“He said to us that he has an order from Trump. That’s not the law. That’s not the truth. It’s just an executive order, and it gives him a lot of influence in terms of what he decides to do,” he said.

TREAT EVERYONE WITH FAIRNESS
Schendel said he believes one difference between Trump and Obama on immigration is that under Trump, immigration laws are being enforced, and he supports that.
“The only change that’s happened from what we do as sheriffs is there’s a new president,” he said. “The new president basically told Homeland Security, which includes ICE: Do your job. Whereas before we would make all of these notifications, and nothing would happen.”

That’s not true, Dziekan said. ICE ramped up operations during the Obama administration. However, he said, officials might have been required to pay closer attention to the law and, as a result, there might have been some people that were not deported. Nonetheless, he said, the use of ICE detainers skyrocketed under Obama.

“The reality is that we had more deportations under Obama that under any administration in history, so that’s just not correct,” he said.
Schendel believes that when it comes to immigration, it only makes sense to cooperate with ICE.

“Why wouldn’t we?” Schendel said at the meeting with the citizens group. “It’s something that we as a state have asked the federal government to do that. Why wouldn’t we assist them in completing their tasks?”

Schendel said an added bonus to this mode of enforcement is that he believes it causes noncitizens to be on their best behavior so they don’t come into contact with police.

Schendel said his deputies don’t target people on the street who appear to be immigrants, and they don’t sweep through migrant communities on the lookout for people who aren’t here legally. 

“We’re not actively going out there and looking for illegal immigrants. We don’t do that,” he said.

Schendel said that in addition to the Constitution, he is also guided by fairness, and he hopes his department treats everyone equally.

“My whole goal since becoming the sheriff is not to pick and choose. My goal is to treat everybody equally and fairly, and it doesn’t matter who you are or what you believe in or whatever. We’re going to enforce the law equally. Not discriminate,” he told the Express. “You know, some of the (Benzie) sheriff’s departments in years’ past would be like a good ol’ boy network. That has all stopped with me. There is no good ol’ boy network.”

GET THE WORD OUT
The citizens group got started when Dr. Keira Duvernoy, DO, an American Civil Liberty Union member, learned about nine local law enforcement guidelines for humane immigration enforcement and decided to get people together to ask Schendel to sign on.

The guidelines include requiring judicial warrants and prohibiting officers from inquiring about immigration status.

Schendel refused, but that led to the immigration forum and later the meeting between Schendel and the group. The June meeting occurred because the citizens group learned of Schendel’s membership with CSPOA during the forum.
“It’s a far-right, fringe group; they are in favor of clamping down the borders,” Duvernoy said of CSPOA.

CSPOA might not be overtly racist or white supremacist, but it is “white-supremacy adjacent.” The organization’s founder, Richard Mack, a former sheriff in Arizona, wrote the forward to a book about “constitutional sheriffs” written by noted white supremacist Randy Weaver, whose wife and son were killed by federal agents at Ruby Ridge in 1992.

Schendel said the label “far-right fringe group” is fake news and said the group is not racist.

“There’s a lot of fake news out there and, in fact, this is one of them. In fact, I had the Southern Poverty Law Center call me and say because you’re a part of this, you’re against Jews and this and that, and I was like, ‘What are you talking about?’” he said. “No, the group of people, the sheriffs that are in this, are just people that want to follow the law, which is the Constitution of the United States. There’s no right-wing supremacy in there.”

Schendel’s predecessor, former Benzie County Sheriff Rory Heckman, said he believes Schendel might have joined the CSPOA without researching its connections to white supremacists. Nonetheless, Heckman said it is disturbing that Heckman calls himself a “constitutional sheriff.”

“It concerns me that the sheriff would think that they’re the top law enforcement official in the county,” Heckman said. “That’s rather troubling, that type of philosophy.”

Duvernoy said she believes residents should be aware of Schendel’s philosophies.
“I guess I just think people should know about this. I mean, it’s pretty right-wing radical,” she said. “I just think that people need to know and be able to weigh in and understand how right-wing this is … We don’t know really what to do with this, other than sort of get the word out so that people are aware of what we’re really all about.”