Sheriffs Stand Up
In states that agree on almost nothing, sheriffs are refusing to jail people without a warrant — a rare stand that lasts only if it's written into law.
On April 10, a county sheriff in Indiana did something sheriffs almost never do. He sued his own state’s attorney general.
Ruben Marté runs the jail in Monroe County. A new state law — signed in March, in force July 1 — orders jailers like him to honor federal civil-enforcement “detainers”: requests to keep a person locked up past the moment they’d otherwise go free, so federal agents can come collect them. The catch is what those requests don’t come with. Not a warrant signed by a judge. Not a finding of probable cause. Just a form from an agency, and a state law turning that form into a command.
Marté’s argument is the one most of us simply assume is true: the government cannot keep you locked up on nobody’s authority but its own. Once the reason you were in that cell has run out and you’d otherwise walk free, holding you longer on an agency’s request is a fresh detention — and the detainer that asks for it carries no judge’s signature, no warrant, no finding of probable cause to justify the extra hours behind bars. He isn’t improvising, either: a federal appeals court ruled more than a decade ago that holding someone on a warrantless federal detainer can leave the county itself on the hook for an unlawful arrest. The state told him he had to anyway. He went to federal court and said he wouldn’t — and having already been hauled into court once before over his jail’s own policy, this time he filed first.
He is not the only one.
The same line, in very different places
Hundreds of miles away, in rural New Hampshire, the same refusal surfaced — and without a lawsuit at all. Grafton County had quietly signed one of the agreements that deputize local officers to act as federal enforcement — the program known as 287(g). In early May, just as quietly, the county withdrew. It had trained exactly one deputy and made zero arrests under the deal. Earlier this year, the state’s House had killed a bill that would have done nothing more than require local elected officials to sign off before any department entered such an agreement. The sheriff’s office decided it didn’t need the legislature’s permission to step back anyway.
Indiana and New Hampshire — a college town in the Midwest, a rural county in New England, places that agree on almost nothing. And in each, an elected officer whose whole job is law enforcement looked at being ordered to help detain people without a judge, and declined.
That is worth sitting with, because it cuts against the story we’re usually told. These are not activists. They are the people who run the jails. When the officials closest to the cell door are the ones insisting on a warrant, this stopped being an argument about immigration a long time ago. It is about whether anyone — a citizen, a neighbor, you — can be held by the government without a judge ever being asked.
The catch
Here is the hard part, and it is the reason we exist.
A sheriff’s stand lasts exactly as long as the sheriff. It is courage, and courage is not a structure. The next election can erase it. So can the next legislature: this spring, Tennessee moved to force all 95 of its sheriffs into those federal agreements, whether they want them or not. One law, and a hundred individual decisions are overruled at once. And where the rule exists only as an attorney general’s directive instead of a statute, it’s no sturdier — the next attorney general can erase it with a single signature.
What does not wash away is a statute.
Three states have actually written the rule down. California, Illinois, and Oregon don’t leave “no jailing without a judge” to the conscience of whoever currently holds the office — they put it in their laws, where it protects every resident regardless of who wins the next election. In those states, Sheriff Marté’s argument isn’t a brave act. It’s just the law.
Most states haven’t done it. Indiana hasn’t — which is exactly why its sheriff is in a courtroom instead of pointing to a statute. On our scorecard, which grades all 50 states on nine limits like this one, the country averages just over three points out of eighteen. The judge’s-warrant rule is among the most basic limits there is, and most of the map has left it unwritten.
What we do about it
We are a small shop with a specific job. We don’t litigate and we don’t lobby. We keep that scorecard public and sourced, and we compile the laws states have already passed and defended in court — the actual statutory language — into something any lawmaker can pick up and adapt, for free. The whole point is to turn a brave sheriff’s stand into a durable right: to take the thing Marté is risking his standing to defend, and make it the law, so that the next person in his chair never has to be brave at all.
What you can do
Look up your own state. Find out whether “the government needs a judge to jail you” is actually written into law where you live — or whether it rests, right now, on the personal courage of whoever happens to hold the office. Then tell the people who represent you which of those you’d rather it be.
Check your state: www.FederalLimits.org/federal
Reach your representatives in a minute: https://FederalLimits.org/#take-action
A sheriff can draw the line. Only a law can hold it after he’s gone.
— Federal Limits
Federal Limits is a nonpartisan 501(c)(4) nonprofit tracking the legal limits on federal authority — the due-process protections that apply to every American — across all 50 states, DC, and Puerto Rico. Our methodology, our sources, and every state’s full scorecard are public. This work is funded by people who believe those limits are worth defending. If that’s you, help keep it going at www.FederalLimits.org/support.