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McCann v Dart

McCann v Dart

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THE CIRCUIT COURT COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION 
BRIAN McCANN, 013CH105:S3 
.CALE AC.:/Roo 
TIME. 0,):00
Plaintiff, Case Number: 
Decl3rtory Jd9 
vs. 
'"'"' 
::a
THOMAS DART, his official 
r--"' capacity Cook County Sheriff, Defendant.
COMPLAINT CHANCERY FOR MANDAMUS AND DECLARATORY RELIEF 
Plaintiff, Brian McCann, and through his attorneys, brings this action for mandamus 
and declaratory relief against Thomas Dart, his official capacity Cook County Sheriff. grounds therefor, Plaintiff alleges follows: 
PARTIES Plaintiff lifelong resident and citizen Chicago, Illinois, municipality 
located Cook County, Illinois. resident and citizen Cook County, Plaintiff has 
standing seek mandamus and declaratory relief remedy the failure and/or refusal Cook 
County public officials carry out their legal duties. People rel. Newdelman Swank, 131 
Ill. App. 73, (Ill. App. Ct. 1st Dist. 1970); see also People rel. Gamber Board 
Supervisors the County Gallatin, 294 Ill. 579, 582 (Ill. 1920); People rel. Faulkner 
Harris, 203 Ill. 272, 277 (Ill. 1903); Hill Butler, 107 Ill. App. 721, 725 (Ill App. Ct. 4th 
Dist. 1982). Defendant Thomas Dart the Sheriff Cook County. the Sheriff Cook 
administration, operation, and supervision the Cook County jail. See, e.g., Moy County Cook, 244 Ill. App. 1034, 1038-39 (Ill. App. Ct. 1st Dist. 1993); lll. Comp. Stat. 5/3-6017. Defendant being sued his official capacity only. 
JURISDICTION AND VENUE The Court has jurisdiction over this action pursuant Ill. Const., art. VI, 
Venue proper Cook County pursuant 735 Ill. Comp. Stat. 5/2-101. 
LEGAL BACKGROUND ''The Government the United States has broad, undoubted power over the 
subject immigration and the status aliens." 
Arizona United States,_ U.S132 Ct. 
2492, 2498 (U.S. 2012). 'Federal governance immigration and alien status extensive and complex." Id. 2499. Federal authority over immigration and the regulation aliens within our borders" has long been described ..preeminent."
Toll Moreno, 458 U.S. (1982); Plyler Doe, 427 U.S. 202, 235-36 (1982) (Blackrnun, J., concurring) ... This authority rests, part, the [federal] government's constitutional power establish uniform Rule Naturalization,' U.S. Const., 
Art.  cl. and its inherent power sovereign control and conduct relations with foreign nations." 
Arizona, 132 Ct. 2498. Because immigration and alien status are federal issues, the U.S. Congress 'has 
specified which aliens may removed from the United States and the procedures for doing so." Id. 2499. 'Removal civil, not criminal, matter." 
Id. this regard, the U.S. Congress has exercised its extensive authority over 
immigration, alien status, and removal mandating that certain aliens the custody state local law enforcement officials for criminal law enforcement purposes committed the custody the U.S. Attorney General for immigration purposes. Such aliens include those who 
have been arrested state local law enforcement officials for violation any laws relating 
controlled substances, have committed particular criminal offenses particular types criminal 
offenses, are suspected terrorists. See generally U.S.C.  1226. 1226a, and 1357(d). With respect aliens who have committed specified criminal offenses types 
criminal offenses -typically aggravated felonies two more crimes involving moral 
turpitude -federal law mandates that such aliens taken into federal custody for immigration 
purposes "when the alien released" from the custody state local law enforcement officials 
for criminal law enforcement purposes "without regard whether the alien released parole, 
supervised release, probation, and without regard whether the alien may arrested 
imprisoned again for the same offense." U.S.C.  1226(c). minimum, this statutory 
language 'embodies the judgment Congress that such individual should not returned 
the community pending disposition his removal proceedings." Saysana Gillen, 590 F.3d (1st Cir. 2009). Taking such aliens into federal custody for immigration purposes when the aliens 
are already the custody state local law enforcement officials for criminal law 
enforcement purposes necessarily requires coordination with state and local law enforcement 
officials. Accordingly, the U.S. Department Homeland Security ('DHS") has 
promulgated regulations that require state and local law enforcement agencies detain aliens for hours beyond the time when the aliens otherwise would released from criminal 
custody. The regulations state, pertinent part: 
Upon determination the [U.S. Department Homeland Security] issue 
excluding Saturdays, Sundays, and holidays order permit assumption custody the Department. C.F.R.  287.7(d) (emphasis added). state local law enforcement agency's obligation 
detain criminal alien for additional hours triggered the issuance Immigration 
Detainer -Notice Action" (DHS Form 1-247) the agency. 
10. The U.S. Supreme Court has held repeatedly that federal regulations can have 
preemptive effect. See, e.g., Hillsborough County Automated Medical Laboratories, 471 U.S. 
707, 713 (1985). 
11. The federal government also provides funding state and local governments that 
incarcerate certain categories undocumented criminal aliens, including undocumented 
criminal aliens who are being held pursuant immigration detainer. The program through 
which this funding administered known the State Criminal Alien Assistance Program 
("'SCAAP"). 
12. Also exercising the federal government's pre-eminent authority over 
immigration, the U.S. Congress has recognized that communication and "[c]onsultation between 
federal and state officials important feature the immigration system." Arizona, 132 Ct. 2508. 
13. this regard, federal law imposes legal duty state and local law enforcement 
agencies refrain from prohibiting any way restricting communications the exchanging information with the federal immigration officials about person's citizenship immigration 
status. See U.S.C.  1373 and 1644. 
14. Illinois law also imposes legal duties state and local law enforcement officials, 
including sheriffs, comply with federal law. Illinois law requires that every sheriff, "before 
entering upon the duties his her office," shall take oath 'support the Constitution 
the United States, and the Constitution the State Illinois" and "faithfully discharge the 
duties the office sheriff the best [his her] ability." Ill. Comp. Stat. 5/3-6004; Ill. 
Const. art. XIII,  
15. Also under Illinois law, 'Each sheriff shall conservator the peace his 
her county, and shall prevent crime and maintain the safety and order the citizens that 
county." Ill. Comp. Stat. 5/3-6021. Conserving the peace, preventing crime, and maintaining 
safety and order encompasses legal duty cooperate with, and not obstruct, the efforts other 
law enforcement officials, including federal immigration officials. 
ALLEGATIONS FACT 
16. September 2011, the Cook County Board Commissioners ("'the Board'") 
enacted ordinance entitled Policy for responding ICE detainers" the Ordinance") that 
purportedly directs Defendant decline detainers issued U.S. Immigration and Customs 
Enforcement ICE") and deny federal agents access Cook County facilities for 
investigative interviews. The Ordinance states: 
(a) 	
The Sheriff Cook County shall decline ICE detainer requests unJess there written agreement with the federal government which all costs incurred Cook County complying with the ICE detainer shall reimbursed. 

(b) 	
Unless ICE agents have criminal warrant, County officials have legitimate law enforcement purpose that not related the enforcement immigration laws, ICE agents shall not given access individuals allowed use County facilities for investigative interviews other purposes, and County personnel shall not expend their time responding ICE inquiries communicating with ICE regarding individuals' incarceration status release dates while duty. 	There being legal authority upon which the federal government may compel expenditure County resources comply with ICE detainer issued pursuant U.S.C.  1226 U.S.C.  1357(d), there shall 
expenditure any County resources efforts on-duty 
County personnel for this purpose, except expressly 
provided within this Ordinance. 
(d) 	Any person who alleges violation this Ordinance may file written complaint for investigation with the Cook County Sheriffs Office Professional Review. 
Cook County, Ill. Code 46-37. 
17. letter from Cook County Board Commissioners President Toni 
Preckwinkle ICE Director John Morton, Preckwinkle wrote that the primary intent the 
Ordinance -was not fiscal[,] rather was passed ensure that detainees Cook County are 
granted fair and equitable access justice, regardless their immigration status." 'What 
troubling ... policy which treats people differently under the law based upon their 
immigration status," Preckwinkle also wrote Morton. 
18. Cook County Board Commissioners hearing September 2011 prior the enactment the Ordinance, Peter Kramer, Chief General Counsel for the Cook County 
Sheriffs Office ('CCSO") told the board that, the Ordinance was enacted, Defendant would 
follow it. 
19. 
Since the enactment the Ordinance, Defendant has regularly and routinely 

20. 
Since the enactment the Ordinance, Defendant also has prohibited federal 

refused honor immigration detainers issued ICE, citing the provisions the Ordinance. 
immigration officials from having access prisoners the records prisoners Defendant's 
custody using CCSO facilities for investigative interviews obtain information about 
prisoners' citizenship immigration status. Defendant also has prohibited CCSO personnel 
employees from responding inquiries federal immigration officials about prisoners' 
citizenship immigration status and from communicating with the federal immigration officials 
about the incarceration status release dates prisoners his custody. with the refusal 
honor immigration detainers, Defendant has cited the Ordinance justify his actions. 
21. January 2012 letter Cook County Board Commissioners President Preckwinkle, ICE Director Morton expressed great concern" about the "serious impediment., that the Ordinance "poses ICE's ability promote public safety through the identification deportable aliens 
22. public hearing February 2012 before the Board Commissioners Cook County, Defendant testified that, the five month period between the enactment the Ordinance September 2011 and February 2012, Defendant released 346 prisoners his custody who were the subjects immigration detainers issued ICE, and these persons subsequently committed new offenses. 
23. April 24, 2012, ICE had issued 432 immigration detainers Defendant since 
the enactment the Ordinance, but Defendant failed honor any the detainers. According letter from the U.S. Department Homeland Security then-U.S. Senator John Kyl that date, Defendant's failure honor ICE's immigration detainers had "prevented ICE from considering removal proceedings against all but these individuals whom ICE had locate independently and arrest following their release into the community." 
24. Between April 24, 2012 and March 2013, Defendant received approximately 
503 additional immigration detainers issued ICE, and, information and belief, has declined honor any them, resulting the release into the community hundreds additional 
prisoners sought ICE. 
25. March 13, 2013 news release issued ICE presents particularly egregious example the harm that Defendant's refusal honor ICE immigration detainers allow 
ICE agents access Cook County jails interview inmates, review inmate records, obtain information about inmates' citizenship immigration status causing the public. According the release, Nassar Issa Ibrahim Nassar, Jordanian citizen with more than dozen criminal convictions Illinois ranging from felony sexual assault unlawfully carrying weapon, was incarcerated the Cook County jail October 2011 outstanding criminal warrant for assault and battery. ICE issued immigration detainer for Nassar while was Defendant's custody, but Defendant nonetheless released him the following day. ICE ultimately located Nassar again more than six months later and arrested him Cook County residence, and, according ICE's news release, Nassar was deported March 12, 2013. The ICE news release quotes ERO Chicago Field Office Director Ricardo Wong stating, 'The daily release criminal aliens into the streets, rather than into ICE custody, demonstrates how dangerous the current Cook County ordinance public safety[.] Due the current ordinance barring local law enforcement from honoring ICE's detainers, egregious criminals are released continue their criminal activities and endanger innocent people." 
26. Despite Defendant's refusal honor ICE's immigration detainers, Cook County 
applied for and received nearly $2.3 million SCAAP funds from the federal government 2011 and over $1.7 million SCAAP funds 2012. Over the five year period from 2008 2012, Cook County applied for and received nearly $15 million SCAAP funds from the federal government. 
COUNT ONE 
(Mandamus Relief) 
27. 
Plaintiff reaffirms paragraphs 1-26 though fully restated herein. 

28. 
Defendant has legal duty detain certain aliens Defendant's custody for 

period not exceed hours beyond the time that the aliens would otherwise released 
order allow federal immigration officials take custody the aliens. This duty arises from U.S.C.  1226, 1226a, and 1357(d); C.F.R.  287.7(d), Ill. Comp. Stat. 5/3-6004; and 
Ill. Comp. Stat. 5/3-6021, among other sources law. 
29. Defendant also has legal duty under U.S.C.  1373 and 1644 refrain from 
prohibiting any way restricting communications with federal immigration officials 
regarding the citizenship immigration status persons Defendant's custody. 
30. refusing honor immigration detainers issued ICE, Defendant has failed 
and failing carry out his legal duties under both federal and state law. 
31. prohibiting federal immigration officials from having access prisoners 
the records prisoners Defendant's custody using CCSO facilities for investigative 
interviews, order obtain information about prisoners citizenship immigration status, 
Defendant also has failed and failing carry out his legal duties under U.S.C.  1373 and 
1644. 
32. Defendant's failure carry out his legal duties under both federal and state law 
not authorized, excused, justified the Ordinance because the Ordinance preempted 
federal Jaw. 
33. Defendant's failure carry out his legal duties under both federal and state law 
also not authorized, excused. justified the Ordinance because, Defendant 

constitutional officer charged law with authority over the administration, operation, and 
supervision the Cook County jail, the Cook County Board Commissioners has power 
alter limit Defendant's authority and the Ordinance ultra vires enactment result. 
COUNT TWO (Declaratory Relief) 
34. 
Plaintiff reaffirms paragraphs 1-33 though fully restated herein. 

35. actual controversy exists between Plaintiff and Defendant. Plaintiff contends 

that Defendant failing carry out his legal duties under both federal and state law and that the 
Ordinance which Defendant relies preempted federal law and ultra vires enactment the Cook County Board Commissioners. information and belief, Defendant contends 
that obeying the Ordinance and that the Ordinance not preempted federal law. 
36. resident and citizen Cook County, Plaintiff interested party the 
controversy. 
37. The issuance judgment declaring the rights the parties will terminate the 
controversy. 
WHEREFORE, Plaintiff prays that the Court award him the following relief: 
Issue writ mandamus compel Defendant carry out 
the legal duties described herein; Declare Defendant's failure and/or refusal carry out the 
legal duties described herein unlawful; Declare the Ordinance preempted federal law and ultra vires enactment the Cook County Board 
Commissioners; Award Plaintiff reasonable attorneys' fees and costs; and Order such other and further relief the Court finds just 
and equitable. 
Dated: April 22, 2013 Respectfully submitted, 

Ill. Bar No. 6205255 
Cook County Attorney No. 43158 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 Washington, 20024 
Tel: (202) 646-5172 
Fax: (202) 646-5199 
Counsel for Plaintiff