BOZEMAN - One of the key functions of the County Attorney is to provide legal advice, much like general counsel, to the Gallatin County government, including the County Commission. In this role, County Attorney Audrey Cromwell identifies legal risks that can inform County decisions and equip the Gallatin County Commissioners to 1) work within the bounds of the law and 2) ensure the County is not exposed to unnecessary legal risk or costly litigation. 

The Gallatin County Sheriff’s office has recently proposed entering into an interlocal agreement with the U.S. Immigration and Customs Enforcement (ICE) to detain non-local undocumented immigrants at the Gallatin County Detention Center. The proposal to dedicate 10 beds to hold a potential 1,200 non-local ICE detainees annually, exposes Gallatin County to significant legal liability and compromises the County’s ability to serve its own community members. 

Under the Tenth Amendment, states and localities cannot be compelled to enforce federal immigration laws (Printz v. United States, 521 U.S. 898 (1997)) and any voluntary participation exposes those governments to legal risks when constitutional rights are infringed. The U.S. Constitution ensures that every person in the United States—regardless of immigration status— has the fundamental right to due process. Undocumented status is a federal civil enforcement, rather than criminal: ICE detainers and administrative warrants are issued for alleged civil violations of immigration law, not criminal charges and, as such, are not reviewed by a judge to determine if they are based on probable cause. The civil nature of these warrants coupled with the federal government’s current willingness to circumvent constitutional safeguards in the name of expediency has led to recent errors and documented violations of due process (See recent U.S. Supreme Court cases Noem v. Abrego Garcia, 145 S.Ct. 1017 (2025) decided April 10th, 2025 and A.A.R.P. and W.M.M. v. Trump, 24A1007, order issued April 19th, 2025). 

By entering into an interlocal agreement with ICE, detentions at the Gallatin County Detention Center later found to be unlawful could cost Gallatin County taxpayers hundreds of thousands of dollars, if not millions, in litigation costs. In January 2025, Suffolk County in New York faced a federal class-action lawsuit concluding with the court finding the county’s detention practices of undocumented immigrants unlawful and the county responsible for up to $60 million in damages. Additionally, in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), a U.S. citizen was wrongfully held on a civil ICE detainer leading to significant damages against the local government. These and other cases indicate the significant risk associated with inadvertently participating in unlawful ICE detentions. 

The Gallatin County Sheriff’s Department’s assertion that under the proposed ICE contract, only undocumented immigrants charged with crimes would be housed at the County’s already overburdened facility, does not align with the realities of current ICE enforcement practices, which present a real possibility that individuals without criminal charges may be detained and sent to the Gallatin County Detention Facility. This recently occurred in Bigfork on March 4, 2025, where 17 immigrants were arrested at a job site and held solely on civil ICE detainers. 

Additionally, a commitment to house non-local detainees risks increasing resource expenditures and compromises the County’s capacity to serve its own community: all undocumented immigrants housed at the Gallatin County Detention Center, although purportedly held for brief 72-hour periods, would be subject to intake, housing protocols, security supervision, medical screening, and constitutionally mandated healthcare. If a detainee suffers a medical emergency or mental health crisis while at the Gallatin County Detention Facility—including suicide, injury, or death—the potential for Gallatin County to be held liable is significant. 

Gallatin County already participates in the federal 287(g) Warrant Service Officer (WSO) program, a robust, limited cooperation initiative that allows trained local law enforcement officers to perform certain functions of ICE officers. This collaboration ensures that undocumented individuals charged with crimes in Gallatin County are properly flagged and held for ICE. Gallatin County’s engagement with 287(g) preserves a clear distinction between criminal prosecution—the County’s statutory responsibility—and civil immigration enforcement, which remains a federal obligation. In the past year, only 1.4% of Gallatin County’s jail population consisted of individuals flagged for ICE holds, indicating that the current system effectively identifies and processes local cases without overburdening local resources or creating exposure to legal liability from broader, non-local, non-criminal immigration enforcement and detention activities. 

“Gallatin County’s participation in the federal 287(g) program—which ensures that undocumented individuals charged with a crime in Gallatin County are flagged and held for ICE—is extremely effective,” states County Attorney Audrey Cromwell. “Given constitutional concerns regarding due process, significant legal liability, and added strain on overburdened County resources, I have advised the Commission against entering into an additional interlocal agreement with ICE to detain non-local undocumented immigrants in the Gallatin County Detention Center. Nothing about this detention contract makes Gallatin County a safer place to live, work, or go to school—in fact, voluntarily becoming a detention center for ICE could not only expose the County to significant liability, but also damage relationships within our community, leading to lower rates of crime reporting, witness cooperation, and engagement with victim services.”