Problems arise from Due Process for All amendments

|
(9)

At today's (Tue/1) meeting, the San Francisco Board of Supervisors is expected to grant final approval to Sup. John Avalos’ historic legislation, Due Process for All, which limits cooperation between local law enforcement and federal immigration authorities under the Secure Communities program (S-Comm). But now that amendments have been incorporated in an effort to fend off a mayoral veto, the San Francisco Sheriff’s Department has raised questions about whether the law can actually be implemented as written.

With the aim of reducing deportations and extending the Constitutional right to due process to all San Francisco residents, the legislation prohibits local law enforcement from complying with requests by Immigration and Customs Enforcement officials to detain individuals who are otherwise eligible for release from custody. The requests are made under S-Comm, an information-sharing program between ICE, the California Department of Justice and the FBI that allows authorities to check fingerprints against immigration databases.

ICE issues civil detainer requests, which aren’t mandatory, asking local agencies to hold individuals for up to 48 hours to make time for the detainee to be taken into immigration custody. While warrants must be supported by probable cause, there is no such requirement for a detainer request.

An earlier draft of Avalos’ legislation barred the Sheriff’s department from ever honoring such requests. But now that the legislation has been amended with “carve-outs” directing the sheriff to comply with the ICE requests in certain cases, Sheriff Assistant Legal Counsel Mark Nicco is uncertain about whether his staff will actually be able to do the things the law requires of them.

"I ask that there be a consult about operational concerns. It’s the unintended consequences which brings me here before you today," Sheriff Ross Mirkarimi told supervisors at the Sept. 24 meeting.

“The sheriff does want to comply with the intent and details of this legislation,” Nicco told us. But as things stood late last week, there were “concerns about whether we’d be able to implement certain aspects.” Nicco said his office has been meeting with the City Attorney and Avalos since the Sept. 24 meeting, in an effort to iron out some of those problems. “We want guidance on what their intent is, and for them to understand our physical roadblocks and operational issues," he said.

The amended legislation directs the sheriff’s department to detain someone in response to an ICE request in cases where that person has been “convicted of a violent felony in the seven years immediately prior.” But the definition states, oddly, “the date an individual is convicted starts from the date of release.”

That’s confusing, Nicco told us. For one thing, there’s a big difference between the date someone is convicted of a crime, and the date they’re released after having served time as punishment for that crime. Unless the person was arrested and held in San Francisco, Nicco said, “The date of release from a prior conviction is not something … we can easily determine.”

The second criteria for when a person can be detained for ICE presents another obstacle, Nicco said. According to the amended law, someone can be held if “a magistrate has determined that there is probable cause to believe the person is guilty of a violent felony and has ordered the individual to answer to the same.”

But Nicco said the Sheriff’s department has no ready access to this information. “We do not have access to whether a person has been held to answer a certain charge,” he explained. “We would have to go to Superior Court and request information.”

The carve-outs were added, in part, to garner enough votes for a veto-proof majority approval. Mayor Ed Lee had threatened to veto the law as it was previously written, and police chief Greg Suhr had expressed concerns that it would shield violent felons from deportation.

But those exceptions to the rule have resulted in a lack of clarity and obstacles to implementation, Nicco said. “If it were flat-out, no ICE detainers, it wouldn’t be an issue,” he noted.

A coalition of advocates from immigrant communities plans to attend the Tue/1 meeting to celebrate the final approval of the law, even though it is a compromised version.

“The amendments, unfortunately, do allow potentially unconstitutional immigration ‘holds’ under very limited circumstances,” advocates with the California Immigrant Policy Centered noted in a media advisory. “But the ordinance will protect most San Franciscans from the abusive requests.” 

Comments

Whether they are illegals or not?

Posted by Guest on Oct. 01, 2013 @ 12:13 pm

Now you can get raped by a felon in the name of fairness!

Posted by Chromefields on Oct. 01, 2013 @ 12:33 pm

you are innocent until proven guilty, so DUE PROCESS is basic!

this has nothing to do with us women getting abused or raped but with making sure we all feel comfortable and unafraid to report. we don't want to be afraid that we might get caught up in some database that will have victims in jail.

get your facts right and then comment!

-c

Posted by women against S-Comm! on Oct. 01, 2013 @ 5:24 pm

citizens. Moreover, those guilty of crimes routinely lose some of their rights.

Violent felons who are also illegals should be punished for their felonies, and then detained until deportation.

Posted by Guest on Oct. 01, 2013 @ 5:36 pm

this is simply a troll barrier

it is a signpost to indicate to the reader that other anonymous posters on this thread are beginning to purposely diminish the conversation into reactionary hyperbole and/or petty, mean spirited, personal attacks and irrelevant bickering

the barrier is put in place to signal that there is probably little point in reading more replies in the thread past this point

proceed at your own risk

Posted by troll barrier on Oct. 01, 2013 @ 5:45 pm

this is simply a troll barrier

it is a signpost to indicate to the reader that other anonymous posters on this thread are beginning to purposely diminish the conversation into reactionary hyperbole and/or petty, mean spirited, personal attacks and irrelevant bickering

the barrier is put in place to signal that there is probably little point in reading more replies in the thread past this point

proceed at your own risk

Posted by troll barrier on Oct. 01, 2013 @ 5:44 pm

Due Process is a basic right because the criminal system is set up so that there needs to be evidence to prove someone is guilty. This has nothing to do with letting people out of jail when they are found guilty in court so GET YOUR FACTS RIGHT!

Posted by women against S-Comm! on Oct. 01, 2013 @ 5:25 pm

this is simply a troll barrier

it is a signpost to indicate to the reader that other anonymous posters on this thread are beginning to purposely diminish the conversation into reactionary hyperbole and/or petty, mean spirited, personal attacks and irrelevant bickering

the barrier is put in place to signal that there is probably little point in reading more replies in the thread past this point

proceed at your own risk

Posted by troll barrier on Oct. 01, 2013 @ 5:47 pm

My comment was more satirical than factual. If you turn down the shrillness a notch, people might be more inclined to endure your Miami Vice version of our legal system.

Posted by Chromefields on Oct. 02, 2013 @ 6:40 am

Post new comment

The content of this field is kept private and will not be shown publicly.

Related articles

  • On the line

    Undocumented young activists risk arrest to block a deportation bus and call for immigration reform

  • SF supervisors urge city to defy federal immigration holds

  • Breaking the fast

  • Also from this author

  • Police provide explanation of Bernal Heights Park shooting at emotional town hall meeting

  • San Francisco's untouchables

    Is San Francisco trying to help the homeless -- or drive them away?

  • Draining the tank

    Students push UC system to divest from fossil fuels, joining an international movement gathering soon in San Francisco