The July 1st murder of Kathryn Steinle has triggered a divisive national debate over the wisdom of local sanctuary laws and the effectiveness of the nation's immigration policies.
At least one presidential candidate cites the killing as a reason to increase border controls and crack down on undocumented immigrants. The extremes of the political spectrum have spoken of her murder when discussing hot button issues, such as building a wall along the U.S.-Mexican border or the need for stricter gun control.
By all accounts, Kate Steinle was young, beautiful, smart and vivacious. That her tragic, random and senseless death has become a political football must add to her family's unimaginable grief and despair.
The purpose of this post is to analyze the San Francisco ordinance that some say led to Steinle's alleged murderer being released from the county jail and on to the city's streets, rather than again deported to his native country of Mexico.
Juan Francisco Lopez-Sanchez, the man charged with Steinle's murder, "is a convicted felon with a long history of drug crimes who has spent about half his adult life serving time for illegally entering the country and has been deported five times to Mexico."
Earlier this year, Lopez-Sanchez was released from federal prison, where he had served a sentence for illegally re-entering the country after deportation, and turned over to the San Francisco Sheriff's Department on a drug-related warrant that was outstanding in San Francisco.
U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security (DHS), is responsible for enforcing federal immigration laws as part of its homeland security mission. While Lopez-Sanchez was in custody at the San Francisco jail, ICE issued an "immigration detainer" that notified the Sheriff that it intended to assume custody of Lopez-Sanchez upon his release from the jail. That ICE detainer stated, "IT IS REQUESTED THAT YOU: Maintain custody of the subject for a period NOT TO EXCEED 48 HOURS ... beyond the time when the subject would have otherwise been released from your custody to allow DHS to take custody of the subject."
The San Francisco District Attorney's office declined to prosecute the outstanding drug charge against Lopez-Sanchez. The Sheriff's Department thereafter released him from jail on April 15, without either notifying ICE of his release or honoring ICE's request to hold him for up to an additional 48 hours so that the DHS could take custody of him. Steinle's murder occurred 77 days later at Pier 14, less than two miles from the jail.
WHAT IS AN ICE DETAINER?
An ICE detainer is a notice issued to a federal, state or local law enforcement agency (LEA) to inform the LEA that ICE intends to assume custody of an individual in the LEA's custody. A key function of an immigration detainer is "to request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody." If ICE does not assume custody after 48 hours, the LEA is required to release the individual. The LEA may not lawfully hold an individual beyond the 48-hour period.
ICE notifies the LEA of the immigration detainer by use of what is known as a "DHS Form I-247," and the heading on that form states: "MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS ."
A federal regulation authorizes ICE to issue these detainers. 8 C.F.R. §287.7. Regulations are rules promulgated by officials working for federal administrative agencies to carry out the intent of legislation enacted by Congress. The courts generally give less legal weight to regulations drafted by unelected administrators, compared to the deference that courts show to statutes that are enacted by elected members of Congress. See, e.g., United States v. Mead Corp., 121 S. Ct. 2164 (2001).
Controversially, ICE detainers are not issued by a judge or magistrate, which for due process reasons typically must happen before someone may be kept in custody beyond a release date. Rather, the regulation authorizes a range of designated ICE officers, including border patrol agents, ICE aircraft pilots and deportation officers, to issue an ICE detainer. 8 C.F.R. §287.7(b). However, some review of the detainer can occur. A copy of the ICE detainer is to be given to the detainee and instructions on the back of the form advise the detainee to call ICE with complaints, or if he believes he is a U.S. Citizens or is the victim of a crime.
That regulation authorizing ICE detainers uses the word "shall" when referring to the 48-hour post-release detention of the detainee, which suggests that the LEA must honor ICE's request for such a hold. 8 C.F.R. §287.7(d) (upon issuance of a detainer, "such agency shall maintain custody of the alien for a period not to exceed 48 hours"). However, a federal district court in Oregon considered the claim of a detainee who contended that the county jail violated her constitutional rights when it kept her in custody beyond her release date based on an ICE detainer. The county contended there was no violation because it had a mandatory duty to honor the ICE detainer, but the court disagreed and interpreted the regulation to give the jail discretion to refuse to honor the ICE detainer. Miranda-Olivares v. Clackamas County (D. Or., Apr. 11, 2014) 2014 WL 1414305, at *8 ("jail at liberty to refuse ICE's request"). There is no record of an attorney representing the interests of the United States making an appearance in that case.
Similarly, a decision of the Third Circuit Court of Appeal - the federal appeals court for Delaware, New Jersey and Pennsylvania - held that the ICE "detainers are not mandatory." Galarza v. Szalczyk (3d Cir. 2014) 745 F.3d 634, 642. In that case, Ernesto Galarza is a U.S. citizen who was arrested for a drug offense, posted bail, and instead of being released, was held in custody by Lehigh County under an ICE detainer. Three days after Galarza posted bail, ICE officials learned that he was a U.S. citizen. The detainer was withdrawn and Galarza was released. Galarza then filed a civil rights action against Lehigh County, contending that it had detained him without probable cause for more than 48 hours, without notice of the basis of his detention or the ability to contest it. The district court dismissed the complaint against county on the basis that it could not be held responsible for Galarza's detention because it was compelled to follow the ICE detainer. On appeal to the Third Circuit, Galarza argued that under a plain reading of the regulation ICE detainers were permissive. Two of the three circuit judges assigned to hear the case agreed, and held that ICE detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal. The third judge disagreed, noting that he was troubled that no one representing the United States' interests was involved in the litigation. His dissent rings tragically prophetic after Ms. Steinle's death:
The conclusion reached by my friends in the Majority that immigration detainers ... do not impose any obligation on state and local law enforcement agencies to detain suspected aliens subject to removal, but are merely requests that they do so, has enormous implications and will have, I predict, enormous ramifications.
Id. at 646.
The California "Trust Act" Vests STATE LAW ENFORCEMENT OFFICERS With BROAD Discretion Whether TO Honor ICE Detainers
On October 5, 2013, the California Legislature passed AB 4, also known as the Trust Act, and the Governor signed the bill that same day. The law, which took effect on January 1, 2014, prohibits state law enforcement officials from detaining an individual pursuant to an ICE detainer "unless, at the time that the individual becomes eligible for release from custody, certain conditions are met, including, among other things, that the individual has been convicted of specified crimes." The Bill's preamble observes that the ICE detainer procedure lacks due process safeguards and describes a purported need for the law:
[ICE] detainers harm community policing efforts because immigrant residents who are victims of or witnesses to crime, including domestic violence, are less likely to report crime or cooperate with law enforcement when any contact with law enforcement could result in deportation. The program can result in a person being held and transferred into immigration detention without regard to whether the arrest is the result of a mistake, or merely a routine practice of questioning individuals involved in a dispute without pressing charges.
Nevertheless, the text of the statute shows that the Legislature intended to vest California law enforcement agencies with significant discretion when it comes to honoring an ICE detainer. "A law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold" when any of a long list of circumstances are present, including:
· The detainee has been convicted of a serious or violent felony.
· The detainee has been convicted of a misdemeanor that could have been charged as a felony.
· The detainee has been convicted at any time within the past five years of: assault, battery, use of threats, sexual abuse or exploitation, child abuse, burglary, robbery, theft, fraud, felony DUI, obstruction of justice, possession of a deadly weapon, felony possession, sale, distribution, or trafficking of controlled substances, vandalism, gang-related offenses, false imprisonment, hate crimes, stalking, rape and kidnapping.
Government Code § 7282.5.
THE CALIFORNIA TRUST ACT PERMITTED SAN FRANCISCO TO HOLD LOPEZ-SANCHEZ FOLLOWING HIS RELEASE DATE
Lopez-Sanchez reportedly has seven felony convictions, including four for drug offenses. As noted above, the Trust Act permits a local law enforcement officer to honor an ICE detainer when a detainee has been convicted of a felony drug charge within the past five years. Therefore, if the San Francisco Sheriff had followed the California Trust Act, then he likely would have had discretion to honor the ICE detainer issued on Lopez-Sanchez. The Trust Act would have permitted the Sheriff to notify ICE of Lopez-Sanchez's release date and to hold him for up to 48-hours after his release date so that the DHS could take custody of him. We know that neither happened.
SAN FRANCISCO PROHIBITS ITS LAW ENFORCEMENT OFFICERS FROM HONORING ICE IMMIGRATION DETAINERS
The very same week that the California Legislature enacted the Trust Act, the San Francisco Board of Supervisors passed its own law, known as the "Due Process Ordinance on Immigration Detainers." San Francisco went much further than the state in terms of defying ICE requests. The ordinance flat out prohibits San Francisco police and sheriff officers from honoring ICE detainers in almost all situations.
The ordinance, passed unanimously by the 11-member Board of Supervisors and signed into law by the Mayor, prohibits San Francisco law enforcement officers from detaining an individual in response to an ICE detainer, unless both of the following criteria are met: (1) the individual was convicted of a violent felony within the past seven years; and (2) a magistrate has determined that there is probable cause to believe the individual is guilty of a violent felony and has ordered the individual to answer to the same. San Francisco Administrative Code § 12I.3.(a) & (b).
In other words, the Sheriff can only hold a detainee for ICE if he has a recent conviction for a violent felony and is also under arrest for another violent felony with a determination by a judge that the he likely committed that crime. This effectively eliminates almost all discretion by San Francisco law enforcement officers as very few detainees who meet both criteria will make bail and be given a release date. Perhaps tellingly, an earlier version of the proposed ordinance prohibited compliance with an ICE detainer in all instances. ("A law enforcement official shall not detain an individual on the basis of an immigration detainer after that individual becomes eligible for release from custody.")
Moreover, in those rare instances where the detainee does meet both criteria of the ordinance, San Francisco law enforcement officers must also consider additional criteria before honoring an ICE detainer and holding the detainee beyond the release date. The additional criteria is stunningly vague:
[L]aw enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.
San Francisco Administrative Code § 12I.3.(c).
Despite the unanimous vote of the Board, there is evidence in the record of some opposition to the ordinance, including an email that states:
Allowing illegal immigrants with multiple felony convictions to take harbor in our city is just wrong. The true intention of immigration reform is being undermined, this reform was meant to help families who contribute, who work, who want to participate in school, work and city government without fear of retribution.... Allowing convicted felons (not DV related), gang members and fugitives from other states to reside here carte blanc is a shame.
Lopez-Sanchez was not under an active charge for a violent felony at the time of his release from the jail on April 15, 2015. San Francisco's ordinance, therefore, clearly prohibited the Sheriff from honoring the ICE detainer issued in his case. Indeed, the Sheriff's Department offered this explanation for why it did not comply with his ICE detainer: "Once Mr. Lopez-Sanchez's local criminal charges were dismissed [a San Francisco ordinance], approved by the Board of Supervisors and signed by Mayor Ed Lee in October 2013, deemed him ineligible for extended detention. This also comports with the San Francisco Sheriff's Department Policy on immigration detainers."
Many police officers oppose local policies like the one embodied in the San Francisco ordinance on the ground they can lead to the release of habitual, violent criminals onto American streets when they should instead be deported to their native countries. (See, e.g., statement of the San Francisco Police Officer's Association on Steinle homicide.) However, San Francisco's elected Sheriff, Ross Mirkarimi, avidly supports San Francisco's reticence in honoring ICE detainers. Last May he boasted "effective Immediately, the San Francisco Sheriff's Department will no longer honor [ICE] detainers unless they are supported by judicial determination of probable cause or with a warrant of arrest.... In early 2013, [I] revised the Sheriff's Department ICE detainer practice, significantly limiting holds eligible for release to ICE authorities. This revision reduced the number of individuals released to ICE authorities by 62 percent. Only one other county in California had a policy of similar strength."
Moreover, on September 8, 2014, Sheriff Mirkarimi issued a superseding order, effective immediately, stating that he personally had to authorize any "detention and release of an individual to ICE authorities."
SAN FRANCISCO'S POTENTIAL CIVIL LIABILITY FOR THE KATE STEINLE DEATH
The author of this post was a Deputy City Attorney for the City and County of San Francisco before he joined a private law firm in 2001. He also had the privilege and responsibility of representing the surviving members the Bologna family, the victims of a similarly horrific tragedy that happened in in 2008. Tony Bologna, 48, and his sons Michael, 20, and Matthew, 16, were gunned down while that sat in their car on a San Francisco street by Edwin Ramos. A third son Andrew, 16, survived the attack. Ramos was a known member of the violent "MS 13" gang and an undocumented immigrant. The Bologna's were a hard-working, blue collar, law-abiding family. Ramos purportedly attacked them because they looked Hispanic and he believed they belonged to a rival gang. Ramos had been arrested on numerous prior occasions for violent crimes and was suspected of committing at least one murder, but San Francisco law enforcement officials, relying on their interpretation of another San Francisco sanctuary ordinance, had not referred him to ICE for possible deportation. That ordinance restricted San Francisco officials from cooperating with federal crackdowns on illegal immigrants.
On behalf of Andrew Bologna, Tony's widow Danielle Bologna and a surviving minor daughter, we filed a lawsuit against San Francisco, alleging that the ordinance violated a state law that required San Francisco authorities to notify federal authorities about the immigration status of drug arrestees. We also contended that the ordinance violated a federal law that invalidated all restrictions on the voluntary exchange of immigration information between local law enforcement officials and ICE. To prevail on these claims, we had to proof that the laws were enacted to prevent the type of harm that befell the Bolognas. We scoured the legislative history of both laws and, unfortunately for the Bologna family, there was no evidence that either law was enacted to prevent such acts of violence. The trial court threw out the lawsuit on these legal grounds. That decision was affirmed by the California Court of Appeal. Bologna v. City and County of San Francisco (2011) 192 Cal.App.4th 429.
San Francisco will vigorously defend any lawsuit brought by the Steinle family. Despite the striking factual similarities, there are meaningful legal distinctions between the two cases. First and foremost, a different San Francisco ordinance would be at issue in the Steinle case. That ordinance, enacted after the Bologna killings, appears to violate a federal law in that it prevents law enforcement officers from even having the discretion to honor an ICE detainer. The ordinance also conflicts with a state law, which would have vested the Sheriff with the discretion to hold Lopez-Sanchez pursuant to the ICE detainer. Second, there is likely evidence in the legislative record that the federal regulation and the state law were enacted, at least in part, to prevent violent criminal acts that are committed by a small percentage of undocumented immigrants following their release from custody. It is therefore not surprising that San Francisco officials are now pointing their fingers at ICE and others when asked why Lopez-Sanchez was released.
If a the Steinle's lawsuit survived San Francisco's anticipated legal challenges and the matter went to trial, then jurors might be outraged and could very well issue a verdict that sends an unmistakable message to the San Francisco officials who enacted the ordinance. Anyone who is interested in learning more about this subject is welcome to contact Matt Davis at firstname.lastname@example.org.
 Uniquely, San Francisco is both a city and a county. As such, it operates both the police department - a city function - and the Sheriff's Department - a county function.