How ICE is being kicked out of Massachusetts

A month ago, in response to a lawsuit with my name on it, the Sheriff of Plymouth County announced that he’d stop working with ICE. I’m thrilled to be a very small part of it. Here’s the story:

Oren Nimni and I had gone to college together. Back then, I knew him as a thoughtful, quirky guy and committed campus anarchist. Years later, we both were cofounders (with Nathan, and others) of Current Affairs magazine. Some time after that, I saw his distinctive face grabbing getting back in touch after running into each other in a Somerville supermarket. We got back in touch.

When he wasn’t adjunct professoring, legal editing, or podcasting, Oren’s day job was with Lawyers for Civil Rights. He had a novel legal idea, and laid it out to me. I’m going by memory, but it went something like this:

  1. Some sheriffs were cooperating with ICE in specific ways, via these 287(g) contracts
  2. This was unconstitutional, because they didn’t have the authority to do so.
  3. But who could challenge it? Normally, you’d have to hope an attorney general, district attorney, etc would take it on.
  4. Luckily, Massachusetts specifically has a law that taxpayers could challenge any *spending* by executives, if certain conditions were met.
  5. The 287(g) agreements were spending.
  6. The conditions were pretty straightforward. You needed 24 taxpayers, no more than 6 per county, to file the suit.

Here’s the relevant statute in full:

If a department, commission, board, officer, employee or agent of the commonwealth is about to expend money or incur obligations purporting to bind the commonwealth for any purpose or object or in any manner other than that for and in which such department, commission, board, officer, employee or agent has the legal and constitutional right and power to expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than 24 taxable inhabitants of the commonwealth, not more than 6 of whom shall be from any 1 county, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such right and power.

Massachusetts General Law, Part I, TitleIII, Chapter29, Section63

Oren was ready to file the case. But he needed some of those taxpayers to actually file the petition. That’s where I came in.

I was one of those 24 taxpayers filing suit, and got some more friends to sign on. With our names as plaintiffs, they filed the suit: Cofield et al v. McDonald et al. Every once in a while, a lawyer from Lawyers for Civil Rights would email us an update on how the case was going.

In July, the court ruled that our challenge could proceed.

In September, we won! The agreement was unconstitutional, and soon after the sheriff announced that they’d stop the agreement with ICE.

Last time I checked, only Barnstable County is left — and they’ve been hit with a copycat lawsuit.

We’re going to win this. Thank you Oren, and thank you Lawyers for Civil Rights.

As for Oren — recently, he moved to DC to become Litigation Director for Rights Behind Bars. He’s filing cases fighting for better prison conditions, and attacking qualified immunity. What a guy.

You can see my name right here in the list of plaintiffs on page 12 of the official petition to the court. And is that THE Morton Horwitz there with me? Honestly I am not sure but imagine if it was.