There are no fiscal implications associated with accepting this report.
REASONS FOR RECOMMENDATION
The Public Safety and Justice Committee requested that County Counsel convene a group of County public safety and justice officials to review the Civil Detainer Policy and assess the public safety and other impacts of the Policy on the County since its adoption on October 18, 2011. The group met several times over the past few months to discuss the impacts of the Policy and the report and recommendation submitted by the Office of the District Attorney on November 7, 2012. The members of the group provided data, if available, that they had collected on the impact of the Civil Detainer Policy. The group also solicited input from interested community groups, and held a public meeting with these community groups on January 31, 2013.
The Civil Detainer Policy provides that the County will honor ICE detainer requests only if the County has a prior written agreement with ICE “by which all costs incurred by the County in complying with the ICE detainer shall be reimbursed,” and the individual subject to the detainer “is convicted of a serious or violent felony offense for which he or she is currently in custody,” or “has been convicted of a serious or violent felony within 10 years of the request, or was released after having served a sentence for a serious or violent felony within 5 years of the request, whichever is later.” The Policy provides that detainer requests will be honored for homicide convictions regardless of when they occurred, and that no detainer requests will be honored for individuals under 18 years of age. The Policy further states that, in the absence of a legitimate non-immigration-related law enforcement purpose, “ICE agents shall not be given access to individuals or be allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend County time or resources responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release dates.” Because ICE refuses to enter into a reimbursement agreement with the County, the County has honored no ICE detainer requests since October 18, 2011.
On November 7, 2012, the District Attorney submitted a report recommending that the Board amend the Civil Detainer Policy to: (1) eliminate the reimbursement contingency on the County’s cooperation with ICE detainer requests, and (2) expand the list of offenses triggering County cooperation with ICE to include those posing significant public safety concerns other than serious or violent felonies. The Public Safety and Justice Committee requested that County Counsel convene a group comprised of the Chief of Correction, Chief Probation Officer, Pretrial Services Director, Sheriff, District Attorney, Public Defender, Presiding Judge of the Santa Clara Superior Court, and a representative of the Santa Clara County Police Chiefs Association, to review and report back regarding the public safety and other impacts of the Civil Detainer Policy. Although the Presiding Judge of the Superior Court attended discussions regarding the public safety impacts of the Civil Detainer Policy, the Court was only an observer and takes no position regarding the Policy or recommendation.
The group focused on observations and data gathered since the implementation of the Policy in October 2011. That data reveals that the County has not honored ICE detainer requests for a number of individuals who have been: (1) convicted or arrested for felonies other than drug use or possession – including serious or violent felonies; (2) convicted for multiple driving under the influence charges; or (3) validated as gang members. A number of arrestees that the County released without honoring detainer requests have been re-arrested for new offenses as of December 4, 2012. This includes 19 individuals arrested for serious or violent felonies. But the Public Defender has noted that a November 22, 2012 San Jose Mercury News article found that none of the 110 individuals who would have been detained under the District Attorney’s proposed amendment to the Civil Detainer Policy had committed new serious or violent crimes. This may be due to existing safeguards in the criminal justice system such as bail schedules, pretrial service review, judicial discretion, charging practices of the District Attorney, and the right to a jury trial. Unconfirmed observations from County officials and anecdotes received by their offices suggest that ICE agents have been apprehending individuals in County courthouses.
The group also considered the implications of a number of lawsuits filed throughout the country challenging the constitutionality of detentions by local governmental entities pursuant to ICE detainer requests. Although some of these lawsuits have been settled with cash payouts, no court appears to have determined whether such detentions are unconstitutional. ICE, however, has recently modified its detainer policy and revised its detainer request form to address issues raised by the lawsuits. Lawsuits have also been filed alleging that a local governmental entity should be held liable for crimes committed by an individual who should have been held on an ICE detainer request but was not. California appellate courts, however, have dismissed such lawsuits, and one California Court of Appeal has issued a published opinion rejecting this theory of liability.
Finally, the group considered the input of interested community groups. As of March 15, 2013, the group had received two letters from the members of a coalition of community groups headed by the Santa Clara County Forum for Immigrant Rights and Empowerment Coalition; two statements from Justice for Immigrants San Jose; a letter from Ernesto, a local community leader; a statement from the American GI Forum of San Jose; and a letter from the American Immigration Lawyers’ Association Santa Clara Valley Chapter. As described in Part III below, all of these letters express support for retaining the current Civil Detainer Policy.
After considering the relevant data and input, the group requested by the Public Safety and Justice Committee to review the Civil Detainer Policy discussed possible amendments to the current Policy. However, the group was unable to reach consensus. Several members of the group support retaining the Policy in its current form. Other members remain supportive of the September 2011 recommendation made by the Civil Detainer Task Force. Under that recommendation, the County would have complied with ICE detainer requests under the circumstances set forth in the current Policy, but without conditioning its compliance on receiving reimbursement from ICE. A few members of the group voiced their concern that the reimbursement requirement is problematic and has had unintended consequences, including possibly contributing to ICE’s decision to place agents in County courthouses. Finally, other members of this group support specific revisions to the Policy. Those recommendations are discussed below.
The recommended action will have no/neutral impact on children and youth.
The recommended action will have no/neutral impact on seniors.
The recommended action will have no/neutral sustainability implications.
The Board adopted the Civil Detainer Policy on October 18, 2011 in response to the implementation of the “Secure Communities” program by U.S. Immigration and Customs Enforcement (ICE). Secure Communities created automated information-sharing technology through which fingerprints collected by law enforcement officers at booking are submitted by the California Department of Justice (California DOJ) to the FBI, which in turn shares those fingerprints with ICE. ICE compares the fingerprints obtained from the California DOJ with its civil immigration status database (IDENT) in an effort to identify and apprehend noncitizens who are not in compliance with civil immigration law. If ICE identifies such a person, the agency uses a “civil immigration detainer request” to ask the County to hold the individual for up to 48 hours after the individual would otherwise be released so that ICE can assume custody of the individual. The County is required by law to submit the fingerprints of all persons that it books to the California DOJ. As recently confirmed by the California Attorney General, however, the County is not required by law to honor ICE detainer requests.
ICE began activating Secure Communities on a county-by-county basis in California in May 2009. The County learned about the program in October 2009, and ICE activated the program in the County on May 4, 2010. The program is now active in all California counties.
Soon after the activation of Secure Communities in the County, the Board adopted a Resolution entitled “Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Civil Immigration Law.” Recognizing the deleterious effect of the program on community trust, this resolution prohibited any County department, agency, or employee from initiating any inquiry or enforcement action, or questioning, apprehending, or arresting any individual based on his or her suspected immigration status.
In September 2010, the Board voted to opt out of Secure Communities. ICE, however, stated that the program was mandatory and refused to allow the County to opt out. In response, the Board in December 2010 formed a Civil Detainer Task Force (Task Force) chaired by the Office of the County Counsel. In addition to the County Counsel, the Task Force consisted of the following officials or their designees: (1) District Attorney; (2) Public Defender; (3) Sheriff; (4) Chief of the Department of Correction; (5) Chief Probation Officer; (6) Director of the Office of Pretrial Services; (7) CJIC designee; (8) Director of the Office of Budget and Analysis; and (9) Presiding Judge of the Santa Clara Superior Court.
After meeting over a series of months and considering public comment, the Task Force submitted a report to the Public Justice and Safety Committee on September 7, 2011. The report recommended that the Board adopt a policy honoring ICE detainer requests for 24 hours for individuals: (1) convicted of a serious or violent offense for which he or she is currently in custody; or (2) convicted of a serious or violent felony within 10 years of the request or released after having served a sentence for a serious or violent felony within 5 years of the request, whichever is later. The Task Force also proposed an exception for “individuals younger than 18 years of age.” Under the exception, the County would not honor detainer requests for any of those individuals. The report, however, noted that its recommendation may impose a substantial administrative burden on the DOC because DOC staff would need to analyze the criminal history of all individuals subject to detainer requests in order to determine whether the request should be honored.
To address these administrative costs, Supervisor Shirakawa introduced amendments to the Task Force’s proposed policy. Under the amendments, the County would honor the detainer requests specified in the Task Force’s proposal only “so long as there is a prior written agreement with the federal government by which all costs incurred by the County in complying with the ICE detainer shall be reimbursed.” Supervisor Shirakawa also added a provision prohibiting County personnel from giving ICE agents access to individuals or County facilities and from expending County time or resources to assist ICE. On October 18, 2011, the Board adopted the policy with these amendments.
Following the adoption of the Civil Detainer Policy, the County notified the local ICE Field Office Director about the change. In its letter to ICE, the County highlighted that it would no longer: (1) provide ICE with notice of an individual’s release date, or (2) hold individuals beyond their release dates so ICE could assume custody even for periods less than 48 hours. The letter also noted that the County would spend no time or resources on ICE inquiries or otherwise assist in federal immigration enforcement without a reimbursement agreement. Because ICE has refused to enter into any reimbursement agreements with the County, the County is currently honoring no ICE detainer requests.
On November 7, 2012, the Office of the District Attorney submitted a report recommending that the Board amend the Civil Detainer Policy. On that same day, the Public Safety and Justice Committee requested that County Counsel convene a group of officials to develop a report regarding the impacts of the Civil Detainer Policy.
Since being convened by County Counsel, the group has met several times and has solicited input from interested community groups. The observations and data from County public safety and justice departments, as well as the perspectives of community groups, are presented in Parts II and III below.
I. Statewide/Nationwide Developments Since the Adoption of the Civil Detainer Policy
Since the County adopted the Civil Detainer Policy on October 18, 2011, the State, the Attorney General, other California cities and counties, and ICE have taken action relating to civil detainer requests. Those actions are described below.
A. The Transparency and Responsibility Using State Tools (TRUST) Act
In February 2011, Assembly Member Tom Ammiano introduced Assembly Bill No. 1081 (AB 1081), entitled the Transparency and Responsibility Using State Tools (TRUST) Act. The bill was co-sponsored by three immigrant advocacy organizations and supported by more than one hundred additional organizations and California elected officials. AB 1081 provided in relevant part that:
(a) A law enforcement official has the discretion to detain an individual on the basis of an immigration hold after that individual becomes eligible for release from criminal custody, if both of the following conditions are satisfied:
(1) The individual has been convicted of a serious or violent felony . . . or is currently in custody for a charge of a serious or violent felony by a district attorney.
(2) The continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy.
(b) If either of the conditions set forth in subdivision (a) is not satisfied, an individual shall not be detained on the basis of an immigration hold after that individual becomes eligible for release from criminal custody.
Although both the Assembly and Senate passed the bill, Governor Brown vetoed it on September 30, 2012. His veto message stated that “the list of offenses codified in the bill [was] fatally flawed because it omit[ted] many serious crimes[,] [f]or example . . . child abuse, drug trafficking, selling weapons, using children to sell drugs, or gangs.”
On December 4, 2012, Assembly Member Ammiano introduced a new version of the TRUST Act – Assembly Bill No. 4 (AB 4). Unlike AB 1081, AB 4 does not permit law enforcement officials to honor detainer requests for individuals in custody for a charge of a serious of violent felony by a district attorney. Instead, AB 4 only permits law enforcement officials to honor detainer requests for individuals who have been convicted of a serious or violent felony. Like the County’s Civil Detainer Policy, both versions of the TRUST Act define the terms “serious felony” and “violent felony” by reference to California Penal Code §§ 1192.7(c) and 667.5(c), respectively. Together, these categories encompass approximately forty offenses.
B. The Attorney General’s Bulletin
On December 4, 2012, Attorney General Kamala Harris issued a bulletin confirming that local jurisdictions are not required to honor ICE detainer requests because those requests “are not compulsory.” Instead, Attorney General Harris concluded that the detainer requests are “enforceable at the discretion of the agency holding the individual arrestee.” Attorney General Harris further stated that local jurisdictions have the authority to establish their own “protocol to assist them in determining how to respond to” ICE detainer requests. She explained:
After analyzing the public-safety risks presented by the individual, including a review of his or her arrest offense and criminal history, as well as the resources of the agency, an agency may decide for itself whether to devote resources to holding suspected unlawfully present immigrants on behalf of the federal government.
The Attorney General’s bulletin reinforces the Task Force’s earlier conclusion that the County may adopt its own policy regarding enforcement of ICE detainers.
C. Civil Detainer Policies Adopted by Other California Jurisdictions
Several other cities and counties in California have adopted policies regarding ICE detainer requests. Those policies are described below. This list is not exhaustive and does not discuss policies from jurisdictions outside California.
1. City and County of San Francisco (San Francisco)
San Francisco began honoring all ICE detainer requests in June 2010, when ICE instituted the Secure Communities Program there. In May 2011, however, then-Sheriff Michael Hennessey announced a new policy of honoring ICE holds only under certain circumstances. Pursuant to an updated policy guidance issued in October 2012, the San Francisco Sheriff’s Department honors detainer requests for: (1) individuals booked into custody on misdemeanor offenses not eligible for disposition by cite and release, or booked into custody on felony domestic violence offenses; (2) individuals convicted of any felony offense or two misdemeanor offenses not resulting from the same criminal case; or (3) individuals booked on a felony domestic violence charge that is dismissed during the initial booking process, if the individual has previously been arrested for any domestic violence offense or for violating a domestic violence protective order.
2. City of Berkeley
On October 30, 2011, the Berkeley City Council passed a policy stating that the Berkeley Police Department will not honor ICE detainer requests. Unlike county jails, Berkeley’s city jail does not hold inmates serving sentences following conviction, but rather only inmates who are in temporary pretrial custody. Thus, any inmates transferred out of Berkeley custody will be subject to the detainer policy of the relevant county.
3. City of Los Angeles
On December 11, 2012, the Los Angeles Police Commission approved a policy providing that the city will honor ICE holds only for documented gang members, persons with previous felony convictions, and persons arrested for all felonies, misdemeanors with bail exceeding $5,000, or vehicle violations with bail exceeding $2,500. The Los Angeles city jail also provides only temporary pretrial custody, so its inmates may later be subject to the detainer policy of the relevant county facility.
4. Los Angeles County
On December 5, 2012, in response to the bulletin issued by Attorney General Harris, Los Angeles County Sheriff Lee Baca announced his intention to cease honoring ICE detainers for persons arrested for “low-level crimes.” A formal policy has not yet been put into place.
D. ICE Policy Guidance
On December 21, 2012, ICE issued a policy memorandum announcing a change in its detainer policy. Previously, ICE policy permitted the issuance of detainer requests where ICE had “[i]nitiated an investigation to determine whether this person is subject to removal from the United States.” This language was removed from the updated form.
Under the new policy, ICE will issue detainer requests only where it has determined that “there is reason to believe the individual is an alien subject to removal from the United States” because he or she: (1) has been convicted of or charged with a felony; (2) has three or more misdemeanor convictions; (3) has a conviction or charge relating to certain misdemeanors, including sexual abuse, driving under the influence, unlawful firearm possession, and drug trafficking; or (4) has been convicted of illegal reentry, has an outstanding removal order, has committed immigration fraud, or poses a threat to national security. ICE has also revised its detainer form to list each of the above grounds. An ICE agent issuing a request must identify all applicable grounds “so that the receiving agency and the alien will know the specific basis for the detainer.” ICE detainer policy has undergone frequent revisions in response to critiques of Secure Communities throughout its implementation, and this new policy is slated for a six-month review as well.
II. Report from County Officials Regarding the Impact of the Civil Detainer Policy
A. Office of the District Attorney
On November 7, 2012, the Office of the District Attorney (District Attorney) submitted a report relating to the Civil Detainer Policy. The report – which is attached to this transmittal – recommended that the Board amend the Policy to:
1. Remove the requirement for a prior written agreement with the federal government for reimbursement of costs related to civil immigration detainers; and
2. Change the conditions for honoring detainer requests to include those: (a) convicted of all felonies except for drug use or possession felonies; (b) with multiple driving under the influence (DUI) convictions; (c) who are validated gang members; or (d) who have previously committed a dangerous felony.
In support of the proposed amendment, the report analyzed 788 detainer requests issued by ICE to the County during a four-and-a-half month period between October 2011 and February 2012. According to the report, 369 of those 788 defendants were released. Out of those 369 defendants, 110 qualified for detention under the District Attorney’s proposed amendment. Based on their criminal histories, which included bench warrants, stay-away orders, and dangerous felony convictions, the report concluded that those 110 individuals posed “a serious threat to public safety in our county.” The report further noted that 65 of those 110 defendants were ultimately placed on probation for 3 to 5 years at the County’s expense. If those 65 defendants had been deported by ICE, the report estimated that the County would have saved more than $200,000 during that four-and-a-half month period – which correlates to a savings of more than $530,000 for the full year. Finally, the report suggested that the County’s failure to notify victims when ICE holds are not honored violates Marsy’s Law.
After considering the observations and data from the group, as well as the input from interested community groups, the District Attorney believes that the Civil Detainer Policy should be amended to conform to the provisions of AB 1081 (the TRUST Act).
B. Office of the Public Defender
On January 7, 2013, the Office of the Public Defender (Public Defender) issued a memorandum entitled “Response: Public Safety Impact of Detainer Policy.” The memorandum is attached to this transmittal. In the memorandum, the Public Defender observed that:
· The data “shows no increase in crime committed by individuals released because of the” Civil Detainer Policy. In support, the Public Defender cited a November 22, 2012 San Jose Mercury News article noting that none of the 110 individuals who would have been detained under the District Attorney’s proposed amendment had committed new serious or violent crimes.
· Law enforcement resources that would have been expended to comply with ICE detainer requests are currently devoted to public safety.
· The Civil Detainer Policy has saved the County the pre-trial housing costs that the County previously incurred by holding individuals who would otherwise have been released until their pending actions were resolved. Before the adoption of the Policy, the County would hold those individuals for 60 days or more.
· The Policy has likely reduced the County’s litigation costs by reducing the incentive of persons subject to ICE detainer requests to proceed to trial.
· The Policy has improved public safety by increasing immigrant communities’ trust in and cooperation with law enforcement.
· The criminal justice system has mechanisms in place to ensure public safety, including bail schedules, pretrial service review, judicial discretion, charging practices of the District Attorney and the right to a jury trial.
The Public Defender supports a Board policy that does not honor civil detainer requests. The criminal justice system has an effective method of determining who should be held in custody which includes evidence-based assessment tools, bail schedules, judicial review, charging practices of the District Attorney, victim input and defense counsel advocacy. This system contains checks and balances, and is blind to immigration status, as it ought to be.
C. Office of the Sheriff
Although the Office of the Sheriff (Sheriff) did not entirely concur with the Civil Detainer Task Force’s 2011 recommendation, the Sheriff joined that recommendation because she did not “want to withhold consensus.” Consistent with her original position, the Sheriff does not support placing detainer holds on low level offenders, but does support placing holds for persons who commit serious or violent felonies. In doing so, the Sheriff recognizes that the Civil Detainer Policy has improved community trust in law enforcement, which benefited the Sheriff’s investigation of a high-profile kidnap and murder of a young girl. The Sheriff also recognizes that honoring ICE detainer requests can negatively impact families and communities. However, the Sheriff believes that the current Policy – in which no detainer requests are honored – is faulty because it hampers the ability of County law enforcement officials to protect crime victims and the community from perpetrators of serious and violent crimes. Accordingly, the Sheriff recommends that any detainer policy adopted in the County should include, at minimum, the following:
1. Honoring detainers for those arrested for serious and/or violent felonies where the judge has reviewed the affidavit and found probable cause.
2. Honoring detainers for those with prior convictions for serious and/or violent felonies.
3. Allowing the Sheriff the discretion to either honor or deny any detainer request.
In support of her recommendation, the Sheriff notes that of the 1,806 detainer requests issued between October 18, 2011 and December 4, 2012, at least six involved murder charges, two involved attempted murder charges, seven involved child molestation charges, eight involved armed robbery charges, seven involved assault with a deadly weapon charges, and seven involved rape charges. Those cases include the following individuals who could have been detained but were not:
· Some of the murder charges mentioned above involved suspected Sureño gang members who allegedly shot four innocent teenage girls, killing one. Some of those charged in that murder had no adult criminal records. ICE detainer requests were received and not honored.
· In early 2012, a subject was held in custody on an assault with a deadly weapon charge. His only prior felony conviction was for carrying a concealed firearm, an offense not codified as a serious or violent felony. A detainer request was received and not honored. The subject posted bail and was released. Less than a week before this arrest, there were reports alleging that the subject entered his ex-girlfriend’s home through an unlocked door and held her at knifepoint throughout the night. He fled the scene before the police arrived. The subject also allegedly broke his ex-girlfriend’s nose approximately six months before this incident.
Two days after the subject was released on bail, he allegedly entered his ex-girlfriend’s home by forcing entry through a side door. He then allegedly kicked and punched her in the face, causing moderate injuries. He allegedly forced her upstairs to the bedroom, held a knife to her throat, ripped off her clothing, and raped her. The District Attorney charged the subject with rape, assault with a deadly weapon, burglary and threats of death or great bodily injury. He was convicted and sent to state prison.
Had an ICE detainer request been honored for this subject while he was in custody, the later rape and assault with a deadly weapon would not have occurred.
D. Department of Correction
The DOC collected data on arrestees booked in the County from October 18, 2011 (the date the Civil Detainer Policy was passed) through December 4, 2012. The raw data underlying the following summary is voluminous, and accordingly is not attached to this transmittal. The data will be provided upon request.
For those arrestees, DOC only knows the arresting charge. It did not keep track of their criminal histories and does not know the ultimate disposition of the arresting charges. From October 18, 2011 through December 4, 2012, there were 53,655 bookings of arrestees in the County. Out of those 53,655 bookings, ICE issued detainer requests for 1,806 arrestees, meaning that ICE detainers were issued in approximately 3% of bookings. Under the current policy, none of those arrestees were detained by the County. Those 1,806 arrestees are analyzed below.
The original Civil Detainer Task Force recommendation called for honoring detainer requests only for persons with certain felony convictions. Because conviction data for the relevant time period is not available, however, the following discussion is based on available arrest data for the 14-month time period mentioned above. That data does not indicate how many of those arrested were eventually convicted.
1. Felony Arrest Statistics
Of the 1,806 detainer requests at issue, 1,104 (61%) were issued for felony charges. If the County had a policy of honoring detainer requests for persons arrested on serious or violent felony charges, that policy would have covered 209 detainer requests during the 14-month study period, i.e., 12% of the detainer requests issued and 0.4% of the total number of bookings. Out of those 209 detainers, 160 involved individuals who had been released from County custody as of December 4, 2012. Thus, if the County had honored detainer requests for persons booked on serious and violent felonies, the County would have detained those 160 individuals.
If the County had a policy of honoring detainer requests for persons arrested on all felony charges excluding drug use and possession, 940 booked individuals would be covered, i.e., 52% of the detainer requests issued and 2% of the total number of bookings. Out of those 940 individuals, 797 were released from County custody as of December 4, 2012. If the County had honored detainer requests for persons charged with felonies other than drug use or possession, the County would have detained those 797 booked individuals.
Simple possession offenses were included in the above calculation, as were use offenses such as violations of Cal. Health & Safety Code § 11550(a). Possession for sale or transportation offenses, however, were excluded.
2. Rearrest Statistics
The 1,806 detainer requests issued from October 18, 2011 through December 4, 2012 actually pertain to 1,611 individuals. This is because 166 of the booked individuals were arrested more than once during the study period. These individuals are responsible for 361 detainer requests. These 166 individuals establish a re-arrest rate of 9.2% during the study period among persons subject to ICE detainers. Nineteen of these individuals (1% of the total number of individuals subject to ICE detainer requests) were charged with serious or violent felonies, released from County custody (either pre-trial or post-conviction), and subsequently arrested on a new charge during the study period. Eighty-three individuals (5% of those subject to detainer requests) were charged with a felony other than drug use or possession, released, and re-arrested on a new charge within the study period.
E. Office of Pretrial Services
As of December 20, 2012, the Office of Pretrial Services (Pretrial Services) serves 1,178 individuals on pretrial release. Approximately 3% of those individuals are arrested or issued a citation for a new offense while awaiting trial. But Pretrial Services does not collect data on the immigration status of the individuals it supervises and does not know whether those individuals are subject to ICE detainer requests.
Pretrial Services has seen a decrease in its appearance rate – i.e., the percentage of individuals who make all scheduled court appearances – from 87.6% in 2010-2011 to 84.3% in 2012. Although the extent to which this decrease is due to the Civil Detainer Policy is unknown, Pretrial Services believes there may be a link based on its officers’ observations and anecdotes it has received from community groups.
Pretrial Services has received unconfirmed reports from its officers that ICE agents wait outside County courtrooms with laptop computers containing booking photos of undocumented defendants. The agents purportedly use the photos to identify defendants and take them into custody when they appear for their criminal court proceedings.
A counselor at a community-based organization that serves defendants on pretrial release reported that several of his clients have been arrested by ICE when they appeared for their criminal court proceedings. According to the counselor, “the word is out” in the immigrant community that appearing for court may risk deportation. The counselor asked a Pretrial Services officer whether defendants can resolve their criminal matters without actually appearing in court, and was informed that this is not possible.
Anecdotes from defendants on pretrial release or their families relay a similar story. In one instance, a defendant did not miss a single appointment or check-in with his officer for ten months. He then missed a court date and a bench warrant was issued. Pretrial Services sent a letter to his last known address to inform him of the bench warrant and the need to appear in court to resolve it. A week later, the defendant called his officer from Mexico. According to the defendant, he was apprehended by ICE when he entered the courthouse for his sentencing hearing. He was taken to a detention facility where he signed some papers. A few days later, he was dropped off in Mexico. The family members of two other defendants, who were also doing well on pretrial release, recently reported that the defendants were taken into custody by ICE agents when they appeared for their criminal court hearings. Bench warrants were issued for both defendants. The sole charge for one defendant was misdemeanor driving under the influence.
These unconfirmed observations and anecdotes suggest that ICE is using scheduled criminal court appearances to target individuals for arrest and deportation because the County will not honor any ICE detainer requests. As a result, some immigrant defendants are not making their court appearances.
F. Office of the County Counsel
The Office of the County Counsel has surveyed litigation over civil detainer policies adopted by jurisdictions across the county, and the legal issues raised in these lawsuits are discussed below. Numerous lawsuits have been filed against local governments that have honored ICE detainer requests. These lawsuits have challenged the constitutionality of the Secure Communities Program or individual detentions conducted pursuant to an ICE request. Lawsuits have also been filed against local governments that have refused to honor ICE detainer requests. Those lawsuits typically allege that the entities should be held liable for crimes committed by individuals that would have been detained if the entity had cooperated with ICE and honored its detainer requests.
1. Lawsuits Challenging Detentions
Individuals had filed lawsuits challenging local enforcement of ICE detainers even before Secure Communities began, but the implementation of Secure Communities appears to have increased the number of lawsuits filed. Some plaintiffs have only challenged the legality of Secure Communities. Other plaintiffs have sued local governmental entities for detaining them based on an ICE detainer request.
In many of those lawsuits, the local governmental entity detained the plaintiffs for more than 48 hours. Several of these cases were settled with a cash payout by the local governmental entity. But in at least one lawsuit, the plaintiff sued law enforcement officers in Rhode Island who detained the plaintiff for only 24 hours.
Most of the cases filed to date are ongoing. Those cases that have been resolved involved private settlement agreements or mooted habeas claims after the detainee was released from custody. There are no reported decisions addressing the potential liability of a local governmental entity for complying with an ICE detainer request. The constitutional issues raised by these cases are described below.
a. Unlawful Arrest/Violation of Substantive Due Process
Persons detained pursuant to ICE detainer requests have alleged that their detentions are unlawful arrests in violation of the Fourth and Fourteenth Amendments. Those persons contend that any detention beyond their scheduled release date is a re-arrest, requiring probable cause. “The standard for arrest is probable cause, defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.’” Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). Typically, local officials who detain a person pursuant to an ICE detainer request do so based solely on the I-247 civil detainer request notice received from ICE. Thus, the constitutionality of the detention depends on whether the I-247 notice is sufficient to establish probable cause. Previously, most I-247 notices stated that the person should be detained because ICE had “[i]nitiated an investigation to determine whether this person is subject to removal from the United States.” But in Arizona v. United States, the United States Supreme Court stated that “[d]etain[ing] individuals solely to verify their immigration status would raise constitutional concerns.” Arizona v. United States, 132 S.Ct. 2492, 2509 (2012). To date, no court appears to have resolved the merits of this constitutional issue.
In an apparent response to these constitutional claims, ICE revised its I-247 form in December 2012. The new form now states that ICE has “determined that there is reason to believe the individual is an alien subject to removal from the United States.” The checkboxes following this statement allow ICE agents to specify the grounds for the determination or belief and may establish probable cause for the detention. However, two possible grounds for detention found in the new form remain vague – i.e., the individual (1) “otherwise poses a significant risk to national security, border security, or public safety,” or (2) “other (specify).”
b. Violation of Procedural Due Process
Persons detained pursuant to an ICE detainer request have also argued that their detentions violate the Fifth and Fourteenth Amendments because they are not given notice or a meaningful opportunity to challenge their detention. When an individual is arrested without a warrant, that individual is entitled to a hearing before a neutral decision-maker within 48 hours of arrest. Contending that their ICE detention constitutes a re-arrest, these persons argue that they are entitled to notice and a hearing before a neutral decision-maker to challenge the detention. Because local officials often do not provide detainees with a copy of the I-247 civil detainer request form, and transfer detainees to ICE without providing a hearing before a neutral decision-maker, these detainees contend that their detentions violate due process.
Releasing the detainee or transferring the detainee to ICE within 24 hours, however, arguably makes ICE – and not local law enforcement officials – liable for any due process violations. ICE has also attempted to address due process concerns by adding procedural safeguards. Recent changes include providing the subject with a copy of the I-247 form, which now includes more specific information about the reasons for the detainer request and a multi-language notice of a toll-free hotline to address individual concerns and complaints.
2. Legal Challenges to the Failure to Honor ICE Detainer Requests
a. Victim Lawsuits
The County may also face litigation for refusing to honor ICE detainer requests. In at least two well-publicized incidents, individuals who were released in accordance with standard criminal procedures notwithstanding ICE detainer requests subsequently committed violent crimes. The families of the victims sued the local governments that had declined to cooperate with ICE. But in both cases, the local government prevailed. And one of those cases resulted in a published California Court of Appeal decision. Thus, the risk of liability appears to be low. The relevant cases are described below.
i. Bologna v. City and County of San Francisco
In 2008, an undocumented immigrant in San Francisco with a prior criminal record shot and killed three men while they were stopped in traffic. The men’s family members sued the City and County of San Francisco for negligence and breach of a mandatory duty due to San Francisco’s “sanctuary city” status. The trial court ruled in favor of San Francisco, and the Court of Appeal affirmed in a published decision. Bologna v. City and County of San Francisco, 121 Cal. Rptr. 3d 406 (Cal. Ct. App. 2011).
ii. Shaw v. County of Los Angeles
In 2008, an undocumented immigrant with known gang affiliations committed murder within 24 hours after his release from a Los Angeles County jail without notification to ICE. In an unreported decision, the California Court of Appeal held that local law enforcement agencies have the discretion to determine which individuals in their custody should be reported to ICE, and cannot be held liable for their discretionary decision to release a particular individual from custody without notifying ICE. Shaw v. County of Los Angeles, 2012 WL 207020 (Cal. Ct. App. Jan. 25, 2012).
b. Potential Federal Lawsuit to Compel the County to Comply with ICE Detainer Requests
At least one federal regulation – 8 C.F.R. § 287.7(d) – suggests that ICE detainer requests are mandatory and must be honored. But other federal regulations state otherwise, and ICE has repeatedly stated that its detainer requests are not mandatory. Moreover, even if federal regulations did require the County to honor detainer requests, those regulations would likely violate the Tenth Amendment, which prohibits the federal government from requiring state or local officials “to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 989, 935 (1997). Because the refusal by local governmental entities like the County and Cook County, Illinois to honor ICE detainer requests has not been challenged even though those policies have been in place for over a year, the likelihood of such a legal action appears low.
III. Community Responses
The group solicited written input regarding the Civil Detainer Policy from interested community groups, and received additional input at a public meeting held on January 31, 2013. The views of participating community groups are summarized below, and any written input received as of January 31, 2013 is attached to this transmittal.
A. Written Input
1. Santa Clara County Forum for Immigrant Rights and Empowerment Coalition – National Letter
A group of nearly 70 community organizations and individuals from around the country, headed by the Santa Clara County Forum for Immigrant Rights and Empowerment Coalition (SCC FIRE), submitted a letter recommending that the County make no change to the Civil Detainer Policy. According to the letter, the Policy enhances public safety by separating local law enforcement from federal immigration enforcement, and by building trust between local authorities and immigrant communities. SCC FIRE states that the Policy has made the County a national leader by enacting “an intelligent and value-driven response to immigration detainer requests,” which is fitting given the strong immigrant presence in the County. SCC FIRE believes that any change to the Policy “will be viewed as a failure of leadership,” because the Policy was enacted only a year ago after extensive deliberation and with strong community support.
2. SCC FIRE – Local Letter
SCC FIRE also submitted a letter on behalf of the following local community groups: ACLU Mid-Peninsula Chapter; ACLU of Northern California; Asian Law Alliance; Domestic Violence Consortium of Santa Clara County; Community Agency for Resources, Advocacy, and Services (Gilroy); Immigrant Legal Resource Center; Justice for Immigrants Steering Committee, Diocese of San Jose; Justice for Palestinians; MAIZ Cihuatl Tlatocan; People Acting in Community Together (PACT); Sacred Heart Community Service; San Jose Peace and Justice Center; Services, Immigrant Rights, and Education Network (SIREN); Silicon Valley Alliance for Immigration Reform; Silicon Valley De-Bug; Students for Quality Education, San Jose State University; and Unite Here Local 19. The letter states that the current Civil Detainer Policy was passed as a result of “thoughtful consideration through input from elected decision-makers, law enforcement officials, legal experts, community advocates, and the immigrant community,” and should not be amended. The signatories believe that the current Policy protects public safety, and that amending the Policy to allow the honoring of detainer requests for certain criminal offenses would undermine public safety by:
· Eroding immigrant communities’ trust in and willingness to cooperate with local law enforcement officials.
· Eliminating the opportunity to receive rehabilitative services, such as probation supervision, for those offenders who are transferred to ICE but are ultimately released back to the community after winning their immigration case or receiving bond from an immigration judge.
· Focusing scarce County resources on engaging in immigration enforcement at a time when realignment is already placing pressure on the County jail system.
The letter includes the following responses to the District Attorney’s report:
· The report overstates the seriousness of the offenses committed by some of the 110 persons who would have been detained under the District Attorney’s recommendations. For example, some of the individuals with bench warrants may have failed to appear in court due to the presence of ICE agents, and persons with stay-away orders are not necessarily a danger to the community at large.
· The report fails to consider many costs associated with honoring detainer requests, including the human cost of separating families; continued probation costs even for persons who are transferred to ICE custody and ultimately deported; legal costs if the County is sued for honoring detainer requests; and daily housing costs for periods that, in practice, often exceed 48 hours.
· The report recommends honoring detainer requests for persons who are “validated gang members” or have been convicted of a “dangerous felony.” These terms are vague and over-inclusive, and will impose administrative burdens on DOC staff.
· Contrary to the District Attorney’s view, the current Policy benefits crime victims by safeguarding their ability to collect court-awarded restitution, child support, and/or alimony from defendants who may be outside the reach of the court if they are deported. Additionally, while Marsy’s Law protections remain in place during criminal proceedings, it does not apply during immigration proceedings.
3. Justice for Immigrants San José
Justice for Immigrants (JFI) San José submitted an impact paper describing the positive impact of the Civil Detainer Policy on community relations, as well as a position statement opposing any amendments to the Policy. In its impact paper, JFI states that the current Policy has promoted trust between the immigrant community and local law enforcement. According to JFI, “immigrants feel much more emboldened to speak to local law enforcement knowing there is a bright red line separating local law enforcement and federal immigration deportation policy.” JFI points out that the trust instilled by the current Policy helped encourage community members to cooperate with the Sheriff in investigating the disappearance of a young woman in the County. JFI also states that the current Policy enhances community trust in law enforcement by eliminating the risk of racial profiling, particularly of Latino youth.
In its position statement, JFI opposes amendment of the County’s Civil Detainer Policy because:
· The criminal justice system, not the civil immigration system, should determine who may and may not be released back into the community;
· Detainers deprive immigrants of their right to fair judicial proceedings and result in much harsher punishment;
· Detainers separate families;
· Detainers promote the misconception that immigrants are responsible for the majority of crime in this country;
· Deportation forecloses the opportunity for rehabilitation and passes crime and violence on to other countries; and
· The current Civil Detainer Policy increases community trust by making it clear that local law enforcement officers are not ICE agents. This improves public safety by encouraging victims and witnesses to report crime.
4. American GI Forum of San Jose Civil Rights Committee
The American GI Forum of San Jose Civil Rights Committee (GI Forum) submitted a written statement encouraging the County to retain its current Civil Detainer Policy. The GI Forum further proposed an annual review of the Policy based on “statistics to prove or disprove the policy’s success.” Relevant statistics would include the rates of re-offense and rates of court appearances for inmates released despite an ICE detainer request. The GI Forum believes that juveniles and those charged with misdemeanors or other non-violent, non-serious offenses should not be held on detainer requests, particularly if they have ties to the community. The GI Forum believes, however, that violent felons “should have their immigration status reviewed with ICE.”
5. American Immigration Lawyers Association Santa Clara Valley Chapter
The American Immigration Lawyers Association (AILA) Santa Clara Valley Chapter submitted a letter requesting that it be considered a signatory to SCC FIRE’s Local Letter. AILA further argues that the Civil Detainer Policy has not prevented ICE from doing its job, has preserved local law enforcement resources, has enhanced immigrant communities’ trust in local law enforcement, and has become a “beacon of hope” throughout the country. AILA argues that non-citizens deserve equal constitutional protections, but instead suffer harsh punishment solely because of their immigration status.
B. Input at Public Meeting
The following speakers presented their views at a public meeting held on January 31, 2013:
· Nick Kuwada, Asian Law Alliance/SCC FIRE
· Jazmin Segura, SIREN/SCC FIRE
· Jerry Schwarz, ACLU/SCC FIRE
· Donna Wallach, SCC FIRE
· Raj Jayadev, Silicon Valley De-Bug/SCC FIRE
· Charisse Domingo, Silicon Valley De-Bug
· Gail Noble, Silicon Valley De-Bug/Albert Cobarrubias Justice Project
· Betsy Wolf-Graves, Silicon Valley De-Bug
· Jill Malone, PACT/JFI
· Patti Basulto, JFI
· Virginia Ballantyne, Santa Clara County Domestic Violence Consortium/Next Door Solutions to Domestic Violence
· Patricia Castorena, Santa Clara County La Raza Lawyers’ Association
· Grisel Ruiz, Immigrant Legal Resource Center
· Greg Nichols, GI Forum
· Alberto Carrillo, Sr., GI Forum
· Marci Gerston, Jewish Community Relations Council
· Michelle Pujol, San Jose State University MEXA
· Drina Collins, Santa Clara County Democratic Forum
· Spencer Graves, statistician and County resident
No speaker expressed support for amending the Civil Detainer Policy. The specific points raised by the speakers are set forth below.
· Community Trust
A number of speakers stated that the Civil Detainer Policy has improved immigrant communities’ trust in local law enforcement officials, and argued that changing the Policy will undermine this trust. Indeed, Raj Jayadev asserted that the mere possibility that the Policy will be amended has already begun to erode community trust.
Virginia Ballantyne commented that amending the Policy to honor even some detainer requests will make victims of domestic violence less likely to report abuse due to a fear of deportation. Spencer Graves, a County resident and statistician, stated that amending the Policy to honor some detainer requests would have an unknown impact on future reporting of crimes. He stated that for every crime committed by a person who has been released despite a detainer request, there is an unknown number of crimes that occur because victims or witnesses do not trust law enforcement and are afraid to come forward.
Jill Malone read a letter submitted by a man named Ernesto, who immigrated to the United States from Mexico in 1995 and is a local PACT leader. In the letter, Ernesto describes living in fear of arrest and feeling as though he is “under social attack” due to his immigration status. He states that he knows U.S. citizen children of undocumented parents “who have already had bad experiences with the police and lose the image of protection when they see a cop.” Ernesto states that the Policy has improved immigrant communities’ trust in law enforcement, and that amending the Policy would erode this trust. He states, “We need this good relationship to combat the problem of gangs and other problems.
· The County’s Civil Detainer Policy vs. the TRUST Act
Several speakers stated that the Civil Detainer Policy has made the County a national leader on separating local law enforcement from federal immigration enforcement. Relatedly, several speakers expressed opposition to amending the Policy in accordance with the TRUST Act, which Governor Brown vetoed. Jerry Schwarz stated that the County should not backtrack by adopting a policy in line with the TRUST Act. He explained that many community groups supported the TRUST Act as a means of limiting the enforcement of ICE detainer requests by local law enforcement in the state. According to Mr. Schwarz, the TRUST Act was intended to set an upper limit for enforcement of detainer requests, and the TRUST Act contained a specific provision allowing local governments like the County to go further and refuse to enforce all detainer requests. Mr. Schwarz argued that the County should retain its current Policy in view of its unique circumstances, such as its strong immigrant presence and the success of the Policy. Raj Jayadev asserted that the County’s adoption of the Policy was the impetus behind state legislature’s willingness to consider the TRUST Act. He stated that if the County amends the Policy, the state legislature will take notice. He also expressed his group’s hope that the entire state will adopt a policy like the County’s, and noted that community groups supported the TRUST Act as a first step in the right direction.
· Ethics and Public Safety
Several speakers questioned the ethics of detainer requests and deportation, as well as their use as public safety tools. Jazmin Segura stated that deportation should not be used to back-up state and local criminal law enforcement mechanisms. She also asked the group to consider the ethical implications of deporting violent offenders to their countries of origin, where they may commit crimes. Charisse Domingo shared an anecdote about a 13-year-old boy who was held on an ICE detainer request in San Mateo County and subsequently transferred to an ICE detention facility in Virginia, where he remained for 42 days before being reunited with his family. His deportation proceedings remain in process. Michelle Pujol questioned the efficacy of deportation as a public safety tool, noting that 70% of persons who have been deported in California under ICE’s Secure Communities program were not violent offenders.
Grisel Ruiz explained that an ICE detainer request is not the only time a person’s immigration custody status is considered. If a detainer request is honored and the individual is picked up by ICE, he may: (1) remain in custody for the entirety of his immigration proceedings; (2) be released by ICE; or (3) be released by an immigration judge.
Gail Noble stated that detainers are not moral or just, and analogized honoring ICE detainer requests to the forced return of freed slaves to plantations when they could not produce their papers.
· Legal Implications
A number of speakers commented that ICE detainer requests single out immigrants for unequal treatment. Grisel Ruiz stated that immigrants are “not inherently more dangerous” than non-immigrants, yet ICE detainers treat them as though they are, creating a two-tiered justice system based on immigration status. She noted that ICE’s immigration enforcement spending last year exceeded the spending of all other federal criminal justice agencies (e.g., the DEA and the FBI) combined. Donna Wallach and Patricia Castorena stated that ICE detainer requests raise a number of constitutional issues, including due process, Eighth Amendment cruel and unusual punishment, and Tenth Amendment federal commandeering. Jazmin Segura noted that honoring detainer requests has subjected other local governmental entities (e.g., Los Angeles County) to litigation.
· Community Involvement
Many speakers commented that further community input on the Civil Detainer Policy is critical. Jill Malone noted that many undocumented workers were unable to attend the meeting due to work obligations, and asked that they be given an opportunity to participate. Raj Jayadev also requested greater community involvement going forward. Finally, several speakers expressed appreciation toward the Public Defender, the Chief of Probation, and the Director of Pretrial Services for voicing their support for the current Policy. Several speakers also expressed appreciation toward the Sheriff for her partnership with local community groups in supporting the TRUST Act.
The group recommends that the Public Safety & Justice Committee consider the information provided above and forward the transmittal and attachments for consideration by the full Board.