Fear of Criminal Prosecution May Hold Up New Sanctuary City Law

"To the extent permitted by state and federal law," reads the final nine words of San Francisco’s new sanctuary city ordinance. (pdf. here: Download Campos Sanctuary City.) This phrase, which is now at the heart of the sanctuary city controversy, is simply a statement of what is legally obvious: When local law conflicts with federal law, federal law wins.

Sounds simple enough, right? Sadly, the shadowy shape of federal immigration law makes it hard to know when the line into federal territory has been crossed. Supervisor David Campos has made it clear that he means to push the boundaries of federal law with his newly approved ordinance that will prevent city resources from being used to report undocumented juveniles accused of felonies to immigration officials.

In the course of speechifying about this issue, Campos and others have compared the fight to protect undocumented juveniles to The City’s fight for same-sex marriage. In both cases, the argument goes, The City dared challenge the law in the name of equality. That comparison only goes so far, though, because when it comes to sanctuary city laws, there is a possibility of criminal liability.

Remember that in May of last year, it came to light that The City had been sending some undocumented juveniles out of the country. The Mayor’s Office scrambled to get a new policy in place and by July 2008, and The City began notifying the feds whenever juveniles were arrested for felonies.

The City’s pre-July 2008 shenanigans, however, have not been forgotten. Joseph Russoniello, the U.S. Attorney for the Northern District of California, is investigating whether the former policy constituted a violation of federal law making it a crime to harbor or transport illegal immigrants. (8 U.S.C. sec. 1324(a)(1)(A)(ii)-(iii).) If Russoniello is successful, city officials can be held personally criminally liable and subject to fines and/or imprisonment for up to five years. (8 U.S.C. sec. 1324(a)(1)(B)(ii).) Mind you, there is not a lot of precedent for Russoniello’s case, but just to be safe, The City is paying for several (unnamed) city officials to have their own criminal defense attorneys. (See City Attorney memo Download Sanctuary Memo.)

It is against this backdrop that the new sanctuary city law appears. Law enforcement officials already fearful of criminal prosecution for “harboring” undocumented persons will be loath to withhold any information from federal immigration officials and neither the mayor nor City Attorney Dennis Herrera wants to expose employees to such liability.

Thus, Herrera sent a letter to Russoniello on Tuesday asking for assurances that no new criminal charges will be brought against individuals who follow Campos’ law. (.pdf of letter here: Download Russoniello Letter .) Of course, Herrera won’t get any such assurance. The more likely scenario is that the new ordinance will be put on hold until Herrera can ask a judge to take a look at it and decide whether it is “permitted by state and federal law.”

Comments

[kwk]

(wtf, M, you've got this hot button topic and Zero Comments!?! Are all your CRs in Cancun or Puerto Vallarta?).

One big justification for Sanctuary is that undocumented people will not be afraid to interact with the SFPD. So in the twenty years of Sanctuary how many people have been convicted of human trafficking, e.g., of forcing Hispanics to deal drugs, forcing Asian women into prostitution, forcing Pakistani women into being indentured servants, etc?

Kamala Harris must have some numbers, yes? So what are they? Such would give a very good metric for evaluating effectiveness of the policy.

[Venerable Bede]

Russoniello responds: "We cannot, as a general matter, promise not to prosecute for violations of federal law,” Russoniello said in a statement. “Our decisions are based on the facts presented, not on hypotheticals.”

“I don’t think it’s enforceable,” said Mr. Russoniello of the new bill. Speaking in a telephone interview, he added, “If there’s any attempt by the city to prevent people to provide information to I.C.E.”—the federal Immigration and Customs Enforcement agency—“those persons face the possibility of prosecution.”

[OMG]

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