McHenry County State’s Attorney Partick Kenneally Argues TRUST Act Unconstitutional

Here is the motion on McHenry County Sheriff Bill Prim’s behalf in the case of the illegal alien Niceforo Macedo-Hernandez now in the custody of the Immigration and Customs Enforcement Agency:


17 CM 1078

Plaintiff, )


NOW COMES the PEOPLE OF THE STATE OF ILLINOIS, by and through their Attorney, Patrick Kenneally, on State’s Motion to Strike and Response to the Defendant’s Emergency Motion.


On May 16, 2014, McHenry County entered into a Detention Services Intergovernmental agreement. See Ex. A.

Pursuant to this contract, the United States Marshals Service or the Immigration and Customs Enforcement (ICE), which is now a part of the Department of Homeland Security (DHS), may house federal immigration detainees at the McHenry County Jail.

Niceforo Macedo-Hernandez from 2017.

On August 8, 2017, the Defendant was arrested for domestic battery after he allegedly grabbed his wife’s wrists, causing cuts and redness to her arm. See Ex. B.

During the Domestic Violence Risk Assessment interview conducted by police with the Defendant’s wife after the Defendant’s arrest, she indicated that the Defendant has previously hit and strangled her and threatened to kill himself. See Ex. C.

The Defendant has previously been arrested for domestic battery on June 24, 2016. See Ex. D.

In that case, the Defendant is alleged to have grabbed and squeezed his wife’s torso, thereby causing bodily harm.

The Defendant subsequently plead guilty to an amended charge of battery. See Ex. E.

On August 9, 2017, the Defendant appeared in rights court and bond was set at $5,000 with 10% to apply. See Ex. F.

Niceforo Macedo-Hernandez, 2016 mug shot.

Initially, the Defendant was unable to post bond and remained in custody on the pending domestic battery charges.

That same day, the Department of Homeland Security issued an Immigration Detainer –Notice of Action, form I-247A. See Ex. G.

The Detainer requests that the Sheriff Department notify DHS as early as practicable before the alien is released and maintain custody of the alien for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released.

On August 28, 2017, the Governor signed Senate Bill 31, the Trust Act. The Trust Act provides in pertinent part:

A law enforcement agency or law enforcement official shall not detain or continue to detain any individual solely on the basis of any immigration detainer or non-judicial immigration warrant or otherwise comply with an immigration detainer or non-judicial immigration warrant.”
SB 31, section 15(a).

On August 30, 2017, KRV Legal filed an appearance on behalf of the Defendant and Emergency Motion to Enforce Defendant’s Release Following Posting of Bond. See Ex. H and I.

In his August 30, 2017 Emergency Motion, the Defendant claims that his bond has been posted and, pursuant to the Trust Act, he should be released.

On September 1, 2017, the DHS issued a Warrant for Arrest of Alien, Form I-200 authorizing the arrest of the Defendant on the basis that he is a removable alien. See Ex. J

This warrant was served later that day by Deportation Officer Bewick at the McHenry County Jail.

After the warrant was served, that same day, the Deportation Officer J. Pauly of the DHS issued a Notice of Custody Determination indicating that the Defendant was being detained by the DHS. See Ex. K. Thereafter, on information and belief, the DHS transferred custody of the Defendant pursuant to the May 16, 2014 contract.

On September 1, 2017, this matter was heard by this Court.

After discussing the matter, the State and defense presented an Agreed Order wherein the State and defense agreed to continue the case until September 6, 2017 for the State to “advise the court if a response will be filed.” See Ex. L.

Later on September 1, 2017, the Defendant presented an Affidavit in Support of Emergency Motion to Enforce Defendant’s Release Pursuant to the Illinois Trust Act and again sought audience before this Court. See Ex. M.

It is unclear whether this affidavit was filed with the Circuit Clerk. The Motion is identical to the August 30, 2017 Motion except that defense counsel claims that he witnessed members of the Sheriff’s Office refuse to accept payment of bond on behalf of the Defendant.

That afternoon, the parties again appeared in courtroom 203. This Court ordered that the Defendant be allowed to post bond. See Ex. N. This Court deferred ruling on whether the Trust Act necessitated the Defendant’s release. The case was again continued to the previously set September 6, 2017 date for the State to “advise the court if a response will be filed.”


Defendant’s Emergency Motion Should Stricken Because He Has Not Stated an Appropriate Grounds for Relief Recognized by the Code of Criminal Procedure.

The Code of Criminal Procedure sets forth the grounds for relief available to a defendant at the various stages of a criminal case. A motion not recognized by the Code of Criminal Procedure is properly denied. See People v. Ramirez, 2013 IL App. 121153.

Other than citing the Trust Act, the Defendant’s Motion does not identify a section of the Code of Criminal Procedure that would entitle him to the relief requested. Federal immigration law regarding involving administrative detainers, immigration warrants, and removal are civil, not criminal matters.

Arizona v. United States, 567 U.S. 387, 388 (2012). In this case, the Defendant, having posted bond, is not being held pursuant to his criminal case, but rather pursuant to his immigration status. The appropriate forum to address the Defendant’s continued retention in the McHenry County Jail is in civil courts.

While not having extensively researched the issue, the State can advise the Court of three civil actions that may entitle the Defendant to the relief requested, all of which are civil in nature:

  1. Petition for A Writ of Habeus Corpus pursuant to 735 ILCS 5/10-104,
  2. a Writ of Mandamus, or
  3. a Quo Warranto Action.

Accordingly, the Court should strike the Defendant’s Emergency Motion as he has not stated an appropriate ground for relief nor has sought relief in the appropriate forum.

Defendant’s Emergency Motion Should be Stricken Because He Has Not Provided Sufficient Notice.

Neither Supreme Court Rules, the Code of Criminal Procedure, or Local Criminal Rules contemplate emergency motions that may be heard by a court without proper notice.

Pursuant to Supreme Court Rule 21, circuit courts may develop rules governing criminal cases. The 22nd Judicial Circuit has adopted such local court rules. Pursuant to local court rule 10.15:

(a) All pre-trial motions including, but not limited to, motions brought pursuant to Illinois Compiled Statutes, Chapter 725, Article 144 or Article 115-10 of the Code of Criminal Procedure shall be filed within the time fixed by the Court. In the absence of an order setting dates, all motions shall be filed and brought to the attention of the Court not less than twenty-eight (28) days before the date the case is set to commence.

(b) Time of Notice. Pursuant to rule, court order or administrative order:

1. If notice of filing is given by personal service, the notice and motion shall be delivered before 4:00 p.m. on the second day preceding the hearing of the motion.

2. If notice of filing is given by mail, the notice and motion shall be deposited in the United State’s Post Office or Post Office deposit box on the fifth day preceding the hearing of the motion, excluding Saturdays, Sundays and Holidays.

3. If notice of filing is given by facsimile transmission, the notice and motion must be transmitted not less than 48 hours preceding the hearing of the motion, excluding Saturdays, Sundays and Holidays.

As of September 4, 2017, the State has not been served with an Emergency Motion set to be heard on September 5, 2017. Accordingly, any such motion should be stricken unless and until the Defendant complies with court rules.

The Trust Act Does Not Entitle the Defendant to Release.

Even if this Court does not strike the Defendant’s Emergency Motion, the Defendant is properly being held in custody by the plain language of the Trust Act. 1As discussed, the Trust Act prohibits a State law enforcement agency from detaining and individual “solely on the basis of any immigration detainer…or [administrative warrants].”

The Sheriff’s Office is not holding the Defendant solely on the basis of administrative federal detainers or warrants. 14 U.S.C. § 4013, as amended by section 119 of Public Law 106-553, provides that “[n]otwithstanding any other provision of law…the Attorney General hereafter may enter into contracts and other agreements, of any reasonable duration, for detention or incarceration space or facilities, including related services, on any reasonable basis to enter into contracts and other agreements with local law enforcement agencies.” See Ex. O.

Pursuant to this authority, the DOJ lawfully entered into the Detention Services Intergovernmental Agreement with the County on May 6, 2014 wherein the Sheriff’s Office agreed to detain federal immigration detainees on behalf of the DOJ. The DOJ requested that the Defendant be held pursuant to this contract on September 1, 2017. Accordingly, the Defendant is not being held solely on the basis of a detainer or administrative warrant. Rather, he is being held and housed as a federal detainee by the authority of the DOJ as expressed and conveyed to the Sheriff’s Office by the terms of the May 6, 2014 contract.

Should this Court interpret the Trust Act to contemplate the release of the Defendant, it may be setting the Illinois Law in conflict with federal law and render it unconstitutional under the preemption doctrine. In particular, the Trust Act would be “standing as an obstacle to the accomplishment” and execution of the full purposes and objectives of Congress by limiting the DOJ’s statutory authority to contract with local law enforcement in Illinois to house federal detainees. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

The Trust Act is Unconstitutional.

The Trust Act is unconstitutional because: 1) it is preempted by federal immigration law; 2) it violates the Separation of Powers, legislative branch cannot dictate to the executive branch, of which the sheriff is a member, what laws to enforce; and 3) violates the prohibition on special legislation in that it only applies to a small number of people being held on civil detainers.
The State Deserves More Time to Research This Issue and Respond to the Defendant’s Motion.

The Trust Act, having gone into effect immediately on August 31, 2017, has not given the State time to fully understand the Act’s scope or parameters. We believe that the Trust Act as well as the Defendant’s Motion raise a number of complicated issues that require an extensive review of immigration and other federal laws, constitutional law, our responsibilities under the May 16, 2014 contract, and the Act’s legislative history. The State is, therefore, requesting two weeks to respond to the issues the Defendant has raised.

WHEREFORE and for the foregoing reasons, the State respectfully prays that this Honorable Court:

  1. Grant the State’s Motion to Strike; or
  2. Deny the Defendant’s Motion for Release; and/or
  3. Find the Trust Act Unconstitutional; or
  4. Grant the State two weeks to respond fully to the Defendant’s Motion.

Respectfully Submitted

Patrick Kenneally
Assistant State’s Attorney


McHenry County State’s Attorney Partick Kenneally Argues TRUST Act Unconstitutional — 24 Comments

  1. Whether or not he wins this case, Prim already won my vote.

    Trust act is unconstitutional and Rauner is a fleabag for signing it.

    Thanks Sheriff for standing firm.

  2. Where are all of those people who work in the field of preventing spousal abuse?

    Based on evidence brought forward to date, this is not a ‘nice’ guy!

    How many times has he been arrested for spousal abuse?

    To Turning Point: Why are you not posting about his spousal abuse?

    I do hope Rauner has sleep problems – he is responsible for the creation of more ‘monsters’.

  3. Well, thank you, Patrick!

    You were started to look not so good for a while there.

    This puts you back up there with our sheriff.

  4. Yesterday, yet again, I heard a Republican federal member of Congress describe U.S. immigration as “broken”.

    Immigration is NOT “broken”!

    Most, not all yet, LAW ENFORCEMENT in our country is broken.

    Firstly, if we had secure borders and ports of entry, this guy would not be here. Instead we could have processed someone else to come here LEGALLY.

    I took a look at the ‘case file’ for ‘Niceforo Macedo-Hernandez’.

    His first recorded ‘brush’ with the law was 11/30/2000 Reference 00TR051820.

    He should have been deported then!

    Next he was arrested 6/28/2014.

    Talk about a ‘broken’ system!

    First, he was DENIED – PUBLIC DEFENDER on 6/28/2014

    then, on 07/02/2014 CONTINUED – DEFENDANTS MOTION


    then, 08/13/2014 CONTINUED – AGREEMENT

    then, 08/27/2014, HELD – CONFERENCE 402 plus CONTINUED – AGREEMENT


    then, 03/04/2015 TERMINATED – SUPERVISION

    Based on the above, this illegal alien has been a burden on law enforcement and our phenomenally inefficient court system for a long time!

    Our broken inefficient court system has created a market for a plethora of attorneys who get elected to office to create more laws!

    Each law they pass makes for a more inefficient system which creates a market for more attorneys!

    Look at the expense already being created because Bruce Rauner signed legislation which tries to force every police officer in our state to violate their oath office!

    Shakespeare was correct!

    BTW Why is spousal abuse a Class A misdemeanor and not a felony?

    Prior to deporting this guy, we should find out who he has been working for and verify all of their I-9 forms!!

    Anyone found to have employed or who currently employs an illegal alien should be fined $12,000 per illegal alien (approx. cost to process a deportee) and a jail sentence of one week.

    Those who claim I am anti-immigrant, let it be known, I am one.

    The U.S.A. is the MOST immigrant friendly country in the world and pay attention to this statement:

    “In 2015, 1.38 million foreign-born individuals moved to the United States, a 2 percent increase from 1.36 million in 2014. India was the leading country of origin for recent immigrants, with 179,800 arriving in 2015, followed by 143,200 from China, 139,400 from Mexico, 47,500 from the Philippines, and 46,800 from Canada. In 2013, India and China overtook Mexico as the top origin countries for recent arrivals.”

    Anyone who supports the presence of illegal aliens in the U.S. is in my opinion a selfish traitor or very, very, stupid!

  5. Does Patrick have expertise in Constitutional law?

    Since this county is the testing ground for another goofy IL law, is Patrick consulting with another Constitutional lawyer?

    Is that lawyer doing it pro bono or charging tax payers?

    Are there more lawyers as a percentage working as compared to carpenters working in this county?

  6. We live in a county with high property taxes every one here seems to complain about so that comment is disingenuous as hell.

    Of course if you are talking about yourself, well OK Hun!

  7. That is the dumbest comment I have ever seen you make, it rings like your backing for the “Constitutional scholar” Oblablah. The funny thing is that you think you are a deep thinker and making such salient points while you are just showing your pure ignorance. Then you back up that ridiculous comment with off the wall nonsense that is pure non sequitur. The other really funny thing is that morons have no ability to understand that they are morons. Tag! You’re it!

  8. So IYO spending on lawyers that aren’t qualified is now ok when you have criticized over spending in the past?

    Tag means you enjoy the game doesn’t it Sweetheart?

  9. You are putting words in my mouth that I have NEVER said. (Morons that cannot understand language like to do that.) I have never mentioned spending except for stating that this turnip has no more blood to give. I don’t like lawyers at all. Period. Have no use for them. Think they are all liars. Period. The whole system is corrupt. In this corrupt system we are forced to go with people that actually think they are doing some good and are morally upright and intellectually honest and responsible. (Not those fools that are the do-gooders that can’t reason their way out of a paper bag.) I see also that sarcasm is lost on you, Mr. Bogart. TOTALLY!

  10. He was a great American actor, so thanks for the compliment.

    Have a great afternoon Mommy Dearest.

  11. Well Cindy, your pal Jesus, (the big jc ) and his 12 homosexual buddies won’t be real happy with your nasty attacks on nob. Better get the good book out and start reading it or just find some old comics. By the way did you mean to say the states attorney is a liar when you wrote your lawyer rant Above? Or maybe it’s just a bad time of the month

  12. President Obama was a constitutional lawyer nob so what expertise are you looking for?

  13. Just Saying, when did he ever practice law?

    It has been know for a long time that he and his wife are not licensed to Practice Law.

  14. No licence needed to teach, just the paper that says PHD.

    Besides like with any Doctors degree, the word Practice not necessary know.

  15. Obama was never a Constitutional Lawyer as he never tried Constitutional cases.

    He was a lecturer, hired under an Affirmative Action Program to give him a job so his wife Michelle could be hired to interface with Chicago city government to minimize the number of uninsured South Side trauma victims to be brought to University of Chicago Hospitals by Chicago Fire department.

    They were routed to Stroger, several miles away.

    It can only be speculated that Michelle’s “work” killed more poor black people than the Ku Klux Klan.

    Charles Nelson
    B. A. University of Chicago, 1973

  16. Chuck your post is a wheelbarrow full of B.S..

    And your citing of your “b.a. University of Chicago” is just hysterical.

  17. Cal:

    Would you please verify to Mr. Joek the veracity of my undergraduate degree?

    Mrs. Obama’s position at the University of Chicago has been exposed in several media outlets, including the Chicago Tribune.

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