Guest Blog by Diane E. Burkley Alejandro, Lead Advocate and Member of ACLU People Power Fairfax.

Ms. Alejandro is a public policy attorney experienced in local government matters. This posting reflects her personal views and not necessarily those of the ACLU of Virginia.

As Virginians pursue police reform measures, don’t forget to include an end to voluntary cooperation with U.S. Immigration and Customs Enforcement’s (ICE) racist agenda. ACLU People Power Fairfax convinced our local police to stop helping ICE unless required by law to do so. However, Sheriff Stacey Kincaid still helps deport people by telling ICE in advance when someone who might be undocumented will be released from jail. This happens even when the person has been found not guilty of the local crime, had their charges dismissed or was granted bail. Sheriffs across the state typically do the same.

We believe the Fairfax Board of Supervisors has the power to direct her to stop this practice. Although the authority of local governments varies from county to county depending on its structure, a board of supervisors in any county with a police force would have broad authority over such matters.

The people of Fairfax County should have the opportunity to review the county attorney’s opinion on the authority of constitutional officers.

Local leaders typically protest they have no control over sheriffs because they are elected officials under the Virginia Constitution. This perceived “separation of powers” is rejected by the Constitution itself: Sheriffs only have powers that are “prescribed by general law or special act.”1 The General Assembly has not hesitated to give the state itself broad authority over sheriffs,2 without protests that its action is unconstitutional. The legislature can — and we believe has — given localities power to do so as well.

In the old days, Virginia sheriffs served as both enforcers of law and jailers. For over 50 years now, the General Assembly has given localities the right to set up a police department whose chief “shall be the chief law-enforcement officer of that locality.”3 When they do so (and many counties including Fairfax have), the sheriff is “relieved of primary law-enforcement responsibilities”.4

The Fairfax sheriff’s website admits as much; it does not list “law enforcement” as one of its core functions. It instead lists the operation of the jail, security for the courthouse and service of the civil law process.

Sheriffs and deputies of course are still vital law enforcement officers and can make arrests in certain circumstances.But that begs the question: Who sets the rules for how the law is to be enforced? The Virginia Code gives us the answer.

Fairfax’s Board of Supervisors is both the “governing body” and the “policy-determining body of the county”.6 It is directed to adopt policies to secure the “safety and general welfare of its inhabitants”.7 Furthermore, the primary law enforcement agency — the police force — has been placed “under the supervision and control of the board.”8 The board has the power to hire and fire the police chief and direct his compliance with its policy.9

It would defy good sense and logic to say that the board can set law enforcement policy for the chief law enforcer, but not for an officer whose role the Virginia Sheriff’s Association concedes is “non-primary.” It would also defy the Code, which says that the sheriff “shall perform such other duties as the board may impose upon him.”10 It also includes the sheriff in the “Department of Law Enforcement” supervised by the board.11

There are of course limits on the board’s oversight. Where the General Assembly has expressly given the sheriff control over a function, such as the custody of inmates and the hiring and firing of deputies, the board cannot take charge.12 But the Code nowhere gives the sheriff the right to set law enforcement policy.

The case for limiting the sheriff’s cooperation with immigration law enforcement is especially strong. The General Assembly has not authorized sheriffs’ enforcement of federal civil immigration law.13 Instead, it carved out narrow circumstances where a sheriff’s cooperation with ICE is permitted or required, e.g., notifying ICE when a person is placed into custody on a felony charge. Sheriff Kincaid’s current practice of providing release notice to ICE exceeds her authority. The board can and should direct her to stop the practice.

It is fair to ask: What happens if the sheriff refuses to comply with a board directive? Knowing and respecting Sheriff Kincaid, this is purely hypothetical. But the courts could order compliance — just as they can with any elected official. The board also “may condition such appropriations on the sheriff’s acceptance of certain restrictions on the use of the appropriated funds.”14

What does Fairfax’s County Attorney think? We have been told her view is that a constitutional officer is untouchable, which is concerning as she advises county officials and agencies on legal and constitutional issues. We urge Fairfax County to make her analysis public. The people of Fairfax County should have the opportunity to review the county attorney’s opinion on the authority of constitutional officers.

We are confident that the Fairfax Board can direct the sheriff to stop voluntarily helping ICE deport people. We are not alone — the ACLU of Virginia, CAIR Coalition and CASA agree. Join ACLU People Power Fairfax, contact us for more information, or start an ACLU People Power group in your area to advocate for your community.


For further information, contact, twitter @PeoplePowerFfx or FB @peoplepowerffx

[1] VA Const. Art. VII, § 4. See VA Code § 15.2-1600(A); Brown v. Mitchell, 308 F. Supp.2d 682, 698 (E.D. Va. 2004) (Sheriff’s authority is “defined solely by statute”).
[2] VA Code Title 53.1 Chapter 3.
[3] VA Code § 15.2-1701.
[4] VA Code § 15.2-1702(D).
[5] VA Code § 19.2-81 (crimes committed in their presence).
[6] § 15.2-803.
[7] §§ 15.2-1200, 15.2-803.
[8] § 15.2-836.
[9] §§ 15.2-807, 15.2-808.
[10] § 15.2-836. The same language is used for other counties. See § 15.2-530 (county executive form).
[11] §§ 15.2-823, 15.2-836.
[12] See § 15.2-1600 (general provision stating counties cannot “diminish any such officer's powers or duties as provided by applicable state law.”). To the extent the two statutes cannot be reconciled, “the more specific statute prevails.” Commonwealth v. Brown, 529 S.E.2d 96, 101 (Va. 2000).
[13] See ACLU VA brief in McClary et al. v. Jenkins and Board Of Supervisors Of Culpeper County, on appeal to Virginia Supreme Court.
[14] Roop v. Whitt, 768 S.E.2d 692, 695 & fn. 1 (Va. 2015); Bailey v. Loudoun County Sheriff’s Office, 762 S.E.2d 763, 765 (Va. 2014).