Chicago law firm files suit against McHenry County Sheriff Bill Prim claiming he violated Trust Act

WOODSTOCK – A Crystal Lake man is suing McHenry County Sheriff Bill Prim, claiming that the county's top law enforcement official won't follow a new state law that prohibits holding a person simply because of their immigration status.

Niceforo Macedo-Hernandez, 46, argues in the lawsuit that Prim is disobeying and ignoring state law by detaining him and threatening to detain others without a basis to do so.

The lawsuit, filed Friday in McHenry County court by lawyers with the Jenner & Block law firm, seeks to have a judge find that Prim is not following state law by unlawfully detaining Macedo-Hernandez and putting two other McHenry County residents at risk for deportation.

The attorneys filed the suit on behalf of Macedo-Hernandez and two unnamed men who are described as a McHenry County man in his late teens and a McHenry County man in his mid-40s.

Gabriel Fuentes, a defense lawyer with Jenner & Block, argued that Prim chose to disobey and ignore the Trust Act – a measure prohibiting local and state police from searching, arresting or detaining a person simply because of their immigration status – by detaining or threatening to detain individuals because he received a request from federal immigration authorities to hold them on the ground that they might be in the country illegally.

“Mr. Macedo-Hernandez’s continued detention after his posting of bond on Sept. 1 was unlawful, and Prim’s ongoing delay in complying with the Trust Act appears to have allowed sufficient time not for contemplating whether Prim should comply with the plain language of the Illinois Trust Act, but to allow Prim and federal immigration officials to set in motion a chain of events that would allow jail officials to claim that they cannot release Mr. Macedo-Hernandez because ICE now has custody of him,” Fuentes said in the lawsuit.

The suit further seeks to recover legal costs for the three men.

Gov. Bruce Rauner signed the Trust Act on Aug. 28. It went into effect the same day.

This lawsuit was filed only days after Macedo-Hernandez’s family was informed that he was taken into U.S. Immigration and Customs Enforcement custody and transferred to a facility in Juneau, Wisconsin.

His daughter, 17-year-old Melissa Macedo, first tried to post bond for her father Aug. 10, one day after her father was arrested on a misdemeanor domestic battery charge and before the Trust Act was signed.

Macedo was told by a sheriff’s deputy that posting bond would be a waste of money because the bail would be forfeited, as her father’s immigration status meant he would not be released, according to the lawsuit.

Macedo said the situation has been difficult for her family, especially not knowing exactly where her father is. She said she had yet to hear from him, as of Friday afternoon, since he was taken to a detention facility in Wisconsin.

Macedo-Hernandez has lived in McHenry County for about 22 years and has worked as a laborer in the landscaping business. He was previously arrested in 2014 on a domestic battery charge and pleaded guilty to an amended battery charge.

Macedo spent hours on Sept. 1 – after the Trust Act was passed – trying to post bail for her father. After waiting eight hours to post the $500 bail, she was told by a correctional officer that her father would not be released.

Macedo-Hernandez’s criminal defense lawyers filed emergency motions Tuesday to try to get him out of jail. McHenry County Judge Michael Feetterer said the issue needed to be taken up in civil court.

Feetterer said he did not believe he had the jurisdiction to order the sheriff to release anyone from his custody.

Prim could not immediately be reached for comment and has previously declined to comment on the issue outside of a statement released last week. State’s Attorney Patrick Kenneally declined comment.

The McHenry County teen listed as John Doe No. 1 in the lawsuit has lived in the U.S. since he was an infant, according to the lawsuit. He is an applicant in the Deferred Action for Childhood Arrivals program.

“His immigration status, coupled with [Prim’s] refusal to comply with the Illinois Trust Act, places him at risk of unlawful detention in the event that he has an encounter with McHenry County law enforcement (for whatever reason),” Fuentes said.

The McHenry County man in his mid-40s listed as John Doe No. 2 was charged with a misdemeanor traffic offense earlier this year, posted $120 bail and was released. Because his case is not resolved, he must appear at the courthouse from time to time, Fuentes said.

“Like John Doe No. 1, he encounters the frequent possibility of having an encounter with McHenry County law enforcement, including the sheriff’s office, and his immigration status, coupled with the defendants’ refusal to comply with the Illinois Trust Act, places him at risk of unlawful detention,” the lawsuit claims.

Fuentes said in the lawsuit that the case arises out of the sheriff’s “blatant flouting of Illinois law” claiming that he declined to follow the Illinois Trust Act in Macedo-Hernandez’s case because, among other things, it was recently enacted and he was reluctant to make a quick decision.

The jail has had an agreement with ICE since 2014 that allows it to house federal detainees in the jail for between $85 and $95 a day for each inmate, and a transportation rate from $34 to $48 an hour, according to court documents.

The McHenry County Jail housed 280 daily ICE inmates in 2011, but that number dropped to 179 in 2013, according to the McHenry County Sheriff’s Office website. Prim took office in 2014, and the jail housed 192 inmates in early 2016. Prim said in a 2016 news release that he was encouraged to see the “downward slide” halted.

“There are likely thousands of undocumented residents in McHenry County, and certainly many more in Illinois, who have been subjected to continued detention under the Illinois Trust Act which took effect on Aug. 28, 2017,” Fuentes wrote in the lawsuit. “However, the sheriff’s refusal to comply with the Illinois Trust Act puts those residents at risk of an unlawful detainer, and exposes a large number of immigrant detainees to the continued unlawful detention going forward.”