SF sheriff wants to use new immigration policy to comply with city's Sanctuary law

[Jeanfromfillmore]

SF sheriff wants to use new immigration policy to comply with city's Sanctuary law
If the San Francisco sheriff's plan becomes reality, illegal immigrants arrested for petty crimes won't be held in jail longer than necessary, even if federal immigration agents may want them detained for possible deportation.
Instead, starting Wednesday, deputies will treat those eligible for release just like U.S. citizens: They will be cited to appear in court.
City officials, however, aren't so sure about Sheriff Mike Hennessey's plan.
The new policy is his attempt to comply with a city law that prevents police from aiding federal authorities in non-felony crimes and a U.S. law that requires authorities to share fingerprints with immigration agents.
"I'm in a position where I'm trying to enforce a local law as well as not violate the federal law and this is the `in-between,'" he said. "It's a difficult area to tread on because emotions run very high here in California and throughout the country on immigration issues."
Under Hennessey's policy, illegal immigrants who commit misdemeanors, such as disorderly conduct, trespassing or shoplifting, will not be held while the U.S. Immigration and Customs Enforcement (ICE) checks their status through a fingerprinting monitoring program.
Hennessey said the change is meant to coincide with the city's "Sanctuary City" law, which aims to provide refuge for illegal immigrants.
Mayor Ed Lee's office did not receive advance notice of the policy change, said Christine Falvey, Lee's press secretary, in a prepared statement.
"We have reached out to federal authorities to determine if this new policy contradicts federal law," Falvey said. "We are awaiting clarification."
The sheriff's new policy comes as the California Assembly on Thursday approved a bill to revise the state's agreement on using the federal Secure Communities program. The measure, which would allow counties to opt out, now moves to the state Senate.
San Francisco and nearby Santa Clara county have sought permission from the federal government to opt out of Secure Communities.
Hennessey said his policy is similar to San Miguel and Taos counties in New Mexico. He said San Francisco's policy will protect public safety because immigrants would be more willing to report crimes if they didn't fear arrest and possible deportation.
ICE Spokeswoman Virginia Kice said Hennessey's decision is "unfortunate." In San Francisco County, ICE has taken custody of 731 deportable immigrants since Secure Communities began in June 2010, Kice said.
Nearly 40 percent had prior criminal convictions for felonies or multiple misdemeanors, she added.
Angela Chan, an attorney with the Asian Law Caucus and a San Francisco Police Commission member, said 68 percent of the people deported under the Secure Communities program in California did not commit serious crimes.
"That puts a lot of people at risk," Chan said. "That's why there's such uproar over this program."
Hennessey said he learned that keeping immigrants with ICE detainers behind bars is a courtesy and not mandatory after meeting with Secure Communities director David Venturella late last year.
Hennessey's move is drawing some sharp criticism.
"The borders will never be secure as long as places like San Francisco lay out the welcome mat," said Tom Fitton, president of Judicial Watch, a Washington, D.C.-based legal advocacy group that is suing the city over similar immigration issues.
"These policies put illegal immigrants above the law," Fitton said.
Fitton cited a 2008 incident in San Francisco where three members of a family were shot to death by a gang member who was an illegal immigrant and had been released from custody as a juvenile.
"I can guarantee you people will die by this decision," Fitton said.
Addressing the Assembly before its vote last week, San Francisco Assemblyman Tom Ammiano said immigration officials were well aware of the gang member's status.
"In fact, that assailant was reported to ICE, and you know what happened? ICE did not act on that complaint. That's what happened. Because they were probably out busting a crossing guard, or arresting a mother on her way to work at a hotel," Ammiano said.
Secure Communities began in 2008 as an initiative to identify and deport illegal immigrants who have committed serious crimes as local authorities share their fingerprints with the Department of Homeland Security.
The program operates in over 1,300 jurisdictions in 42 states. ICE has since removed more than 77,000 criminal aliens including more than 28,000 offenders with prior convictions for serious or violent offenses, such as murder, rape and child sexual abuse, Kice said.
And the program will be mandatory for every state and county by 2013, Homeland Security secretary Janet Napolitano recently said.
However, several other states including Illinois, Maryland, Massachusetts, New York, and Washington have complained that Secure Communities doesn't just deport convicted felons. Crime victims and witnesses could be swept up, too.
Earlier this month, Illinois Gov. Pat Quinn announced that the state intends to withdraw from the program, calling it "flawed." He said nearly a third of all illegal immigrants deported under the program were not convicted of any crimes.
In Minnesota, legislators are currently debating on whether to become the 43rd state to join Secure Communities.
Kice, the ICE spokeswoman, said 71 percent of the illegal immigrants removed or returned through Secure Communities had criminal convictions. She said 29 percent were non-criminal immigration violators, including those who had been removed earlier and visa violators.
Hennessey said his policy has received mixed public reaction. While he expects some harsh feedback, he doesn't see it stopping.
"Believe me, if I've done something wrong, the federal government will sue to stop me. And I'm not hearing anything on that level," Hennessey said. "I don't want to break the law."
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Limit on Illegal-Immigrant Law Suits Faces Test.
As an Arizona rancher faced a court order earlier this year to pay $87,000 to illegal immigrants he caught on his land, the Legislature set out to right what many considered a wrong.
The Legislature passed a law to make retroactive to 2004 a 2006 referendum banning courts from awarding punitive damages to illegal immigrants. The rancher, Roger Barnett, had lost a civil lawsuit alleging that he held the immigrants at gunpoint in the 2004 incident, assaulted them and caused emotional distress.
But opponents of the law say it's unconstitutional. They say the Legislature lacks authority to overturn court decisions and that lawmakers can't pass a law to benefit only one person.
"It makes a mockery of the separation of powers," said Jaime Farrant, policy director for the immigrant-rights group Border Action Network.
The first test of the law's constitutionality could come as early as Tuesday. A Cochise County judge will decide how to proceed with a request from a different rancher who says a judgment against him in a similar civil lawsuit should be overturned.
Barnett case
In March 2004, Barnett apprehended a group of illegal immigrants on his ranch and turned them over to law enforcement. The immigrants alleged that Barnett held them at gunpoint and kicked one of the women. Barnett, who claimed to have apprehended thousands of illegal immigrants crossing through his ranch, disputed the allegations.
A year later, a Texas-based civil-rights organization, the Mexican American Legal Defense and Educational Fund, filed a civil lawsuit against Barnett on behalf of the immigrants and sought $32 million in damages.
Barnett was never criminally charged in the case.
The case garnered national attention and outraged many in the Legislature. Lawmakers in 2006 passed a measure asking voters to change the state Constitution to forbid Arizona courts from awarding punitive damages to illegal immigrants. Prop. 102 passed with 74 percent approval.
But lawmakers realized later that the measure was too late to help Barnett because it wasn't retroactive.
In 2009, a federal court jury found that Barnett didn't violate the civil rights of the immigrants but ordered him to pay $77,000 to the victims for the claims of assault and causing emotional distress.
Barnett appealed. This February, the U.S. Court of Appeals for the 9th Circuit upheld the lower-court ruling. With interest the amount came to about $87,000.
Less than a week later, Republican lawmakers tacked an amendment onto an unrelated bill that would put the constitutional restriction created under Proposition 102 into state statute and make that state statute retroactive to Jan. 1, 2004.
It's illegal for the Legislature to change a voter-approved measure without getting permission from voters. Creating the state statute and changing it instead of the voter-approved constitutional provision may get the Legislature around that problem. It's not uncommon for the Legislature to repeat things in the state Constitution in state statute.
Legislative action
During committee hearings on House Bill 2191, Rep. Jim Weiers, R-Phoenix, said the issue dated back to Barnett's case. He said Prop. 102 was intended to help Barnett and this bill would fix the timing mistake.
"It would have been a lot easier if the Legislature had been smarter at that time and made the date retroactive," Weiers said during committee hearings. "When (Prop. 102) was introduced, it was for the intent of that exact incident, nothing more and nothing less. This is an attempt to right a wrong."
Farrant of Border Action Network was the only one to testify against the bill. He said the bill was unconstitutional for at least two reasons: It was intended to benefit a single person, and it sought to change a voter-approved measure.
He said he also was concerned about the precedent the new law sets.
"This person was accused in civil court of assaulting over 16 immigrants, and the court determined he assaulted them and sentenced him to pay," Farrant said. "And now we're going to pass a law to help him?"
Weiers said during committee hearings that he had vetted the bill with several attorneys and that they all determined it to be constitutional because it changes the new statute and not the voter-approved constitutional provision.
"I've been assured by attorneys that by doing it this way, it is extremely constitutional," he said.
As for helping a single person, Weiers said during committee, it's not the first time the Legislature has done so.
In 2009, the Legislature passed a measure that helped Harold Fish, who was convicted of second-degree murder in the 2004 shooting of a hiker near Payson. The measure required a 2006 change in self-defense law, made amid Fish's trial, to be applied retroactively. The change shifted the burden of proof from the defendant to the prosecution, and the retroactive date allowed it to apply to Fish.
Based on the new law, Fish was released from prison and not retried.
House Rules attorney Tim Fleming in February deemed HB 2191 constitutional, though he admitted at the time that he didn't understand why it was retroactive and wasn't sure how effective it would be at reversing a judgment.
"I haven't done a lot of research on it," he told the House Rules Committee, which is charged with evaluating the constitutionality of proposed legislation.
Another case
Although the debate over the law focused on the Barnett case, another Arizona rancher believes the new law will help him as well.
In 2003, Arizona rancher Casey Nethercott and several other members of a volunteer border-patrol group called Ranch Rescue stopped two illegal immigrants on a ranch they were patrolling in Texas. The immigrants alleged that Nethercott threatened them and pistol-whipped a male immigrant in the head. Nethercott was criminally charged with aggravated assault, unlawful restraint and unlawful possession of a firearm by a felon. He was ultimately convicted of the unlawful possession charge and sentenced to serve several years in a Texas prison.
A year after the incident, the Southern Poverty Law Center filed a civil lawsuit against Nethercott and several of the other men on behalf of the immigrants. The Texas state court in 2005 issued a civil judgment of $850,000 against Nethercott. A Cochise County judge later signed over Nethercott's ranch to the immigrants to cover some of the judgment.
The ranch was divided up and sold.
Nethercott called the passage of HB 2191 an "absolute victory."
"I hope everybody in America knows that they stole my home," Nethercott said. "Now, nobody else can go through this."
What's next
Barnett said he didn't have much to say about the new law. He said he and his attorney are still deciding whether to appeal the U.S. Court of Appeals ruling.
His attorney, David Hardy of Tucson, did not return calls for comment. Representatives of the Mexican American Legal Defense and Educational Fund also did not return requests for comment.
Emboldened by the new law, Nethercott has filed a motion in Cochise County Superior Court to vacate the judgment against him. A hearing is scheduled for Tuesday morning in Bisbee.
Mary Bauer of the Southern Poverty Law Center is the lead attorney on the case. She said she is looking forward to trying the matter in the courts. She said she doesn't believe it is constitutional for a state Legislature to overturn a court ruling.
"The Constitution prohibits things called bills of attainder aimed at particular individuals or individual cases like this," she said. "And the Legislature can't come in and undo something that a court has done."
Bauer said the property has long since been sold, so even if Nethercott did win his argument, he won't get his ranch back.
Nethercott, who is representing himself, said he would not try to take the ranch from its new owners. He wants money, he said, and he believes the new state law will help him get it. He plans to ask for $10 million in punitive damages against the Southern Poverty Law Center.
"It's law now," he said. "You have to go by it."

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