Winneshiek County sheriff: Dismiss ‘thought policing’ suit

Winneshiek County Sheriff Dan Marx is asking a judge to dismiss an Iowa Attorney General Office’s petition against him for not cooperating with federal authorities to enforce immigration laws because his Facebook post that sparked the dispute has been removed — so there’s no “ongoing violation.”

Marx also asserts Iowa Attorney General Brenna Bird’s petition was filed in the wrong county, lacks evidence of a violation and contains other deficiencies.

“The petition is nothing more than thought policing,” his motion asserts.

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In a Feb. 4 Facebook post, Marx — a Republican who has been Winneshiek County sheriff since 2015 — stated his understanding of his constitutional duties, his motion argues. The state not only took issue with his position, but Bird’s office wrote a retraction that she wanted him to post instead. Now the state is threatening to withhold funding for the county because Marx doesn’t agree with the “state-drafted retraction,” his motion asserts.

In that Facebook post, Marx said his deputies would comply with federal requests that are within “constitutional parameters.” But he did not believe federal detainer requests to keep someone in jail were constitutional since they “are issued … because the federal agency does not have enough information or has not taken the time to obtain a valid judicial warrant.”

If U.S. Immigration and Customs Enforcement or other federal agencies attempted to take action in Winneshiek County using paperwork that he saw as unconstitutional, the Facebook post said, the sheriff’s office would “make every effort to block, interfere and interrupt their actions from moving forward.”

“Sanctuary counties are illegal under Iowa law,” Bird, a fellow Republican, said in a statement announcing her lawsuit in March. “Sheriff Marx was given the chance to retract his statement, follow the law, and honor (ICE) detainers, but he refused — even at a cost to his home county. He left us with no choice but to take the case to court to enforce our laws and ensure cooperation with federal immigration authorities.”

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Under a state law, local governments found guilty of not cooperating with federal immigration authorities can lose almost all state funding for a minimum of 90 days.

Bird told Marx to replace his post with a one she dictated to him. Marx removed his post but didn’t publish the one from Bird, which said his post was wrong and made incorrect statement about his office’s policies regarding detainers.

Sheriff’s motion

The sheriff, in his motion, argues Bird’s petition should have been filed in Winneshiek County — not in Polk County — where the alleged violation occurred.

Marx asked the court to transfer the venue to Winneshiek, and asked the court to charge the court costs to the state, which may include compensation to Marx for “trouble and expense.”

Marx also argues that the petition be dismissed because the alleged violation no longer exists. He removed the post from the sheriff’s Facebook account.

“Anyone with Internet access can visit the Facebook page to verify and the removal has been reported on by the media,” the motion asserts.

Bird could file a civil action in an “ongoing violation and actual controversy” but is not authorized to take away funding for a “purported past violation,” Marx’s motion contends. The state law isn’t “designed to punish the citizens of a county” by denying the local entity the state funds needed to function. Rather, the law is meant to ensure compliance if the entity is violating the law on an ongoing basis, the motion states.

Marx, in the motion, also argues he has complied with all immigration detainer requests, which Bird’s investigation confirmed. The Winneshiek County Sheriff’s Office has complied with all 21 detainer requests it received from ICE since Nov. 26, 2018, according to the investigation.

Marx also asserts there is no evidence his Facebook post “intentionally discourages” the enforcement of immigration laws.

Bird’s petition alleges the posting of “false information” had the ability to discourage enforcement, the motion states. But that type of discouragement, “or causing loss of confidence or enthusiasm” isn’t an intentional violation and doesn’t meet the “reasonable statutory construction of discourage,” the motion stated.

Marx also argues his statements are constitutionally protected opinions. That opinion is a “political criticism of ICE not obtaining judicial warrants before getting properly completed forms to the sheriff,” the motion states.

Additional, an attorney for Winneshiek County asked a judge to drop the local government as a defendant in the case because the county is governed by a Board of Supervisors — not the sheriff.

“(T)he only basis pled for including Winneshiek County in the lawsuit is that ‘Winneshiek County is a County in the State of Iowa,” the county’s motion states.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com