Sweet Melissa

SF found to have played no role in Bologna deaths

The City Attorney’s Office scored a grim victory Monday when a Superior Court judge tossed out the lawsuit filed by two members of the Bologna family. You may recall that convicted criminal Edwin Ramos allegedly shot and killed Anthony Bologna and his sons Michael and Matthew in June 2008.

The suit against The City claimed that the repeated re-release of Ramos by city police and probation authorities, plus the failure to turn Ramos (who is not a legal U.S. citizen) over to federal immigration officials, meant that San Francisco was legally responsible for the deaths of the three Bologna family members. Among other things, the judge held that Ramos might have posed a general threat to others, but because authorities didn’t know specifically who Ramos would target, The City had no duty to protect the Bolognas.(Judge's Order PDF here Download Bologna Case.)

Just three months ago, anti-immigration activist Kris Kobach joined the suit as an attorney for the Bologna family, so you can bet this case will be appealed.

Sanctuary Update: Can Mistermayor Refuse the Law?

On Nov. 10, the Board of Supervisors overrode Mistermayor’s veto of a new sanctuary policy that protects undocumented juveniles who are arrested on suspicion of felonies from federal immigration authorities. As of today — 30 days later — that law is officially in effect.

The Juvenile Probation Department now has 60 days (until Feb. 8) to “modify its policies and practices to comply with the provisions of this Ordinance to the extent permitted by state and federal law.”

In the meantime, Mayor Gavin Newsom’s position hasn’t changed: Because federal law prohibits shielding undocumented juveniles from federal authorities, no change in policy is expected anytime soon. Campos maintains that the mayor does not get to decide whether the ordinance conflicts with federal law. According to Campos, state law requires that the mayor fully enforce any local law that is not illegal on its face, and this one is not because it’s legally defensible.

Ultimately, this dispute has landed in the office of City Attorney Dennis Herrera. Matt Dorsey, press secretary for the city attorney, told me Herrera “is working cooperatively with attorneys from the immigrant rights community to forge a legal strategy to enable the law’s fullest possible force and effect.” Now that’s all very neighborly, but unless Mistermayor changes his mind, Herrera will eventually have to address the legality of Newsom’s approach to the sanctuary ordinance.

I asked mayoral spokesman Joe Arellano whether Mistermayor would follow Herrera’s advice if it meant enforcing the new law. His answer? “We’ll cross that bridge when and if we see a memo from the City Attorney’s Office.”

Monday Q&A: Sanctuary City, Healthy San Francisco and Friday Vids

Constant Readers,

Don't forget that today is Muni Crime Story Day down at City Hall. Also, there will be a rally in support of saving SEIU City jobs at 5 p.m.  According to this morning's email on the demonstration, "Last week we took over the Mayors’ office, on Monday, Nov. 23, 2009 we take it to the next level..."

Whoa! Should be interesting.

I try to answer your questions as emails come in, but sometimes I get the same questions over and over again. I figured it might be worth answering some right here.  

1) What is the status of new Sanctuary City law?

The law was finally passed over Mistermayor's veto on November 10. It takes 30 days to go into effect. (December 10) In the meantime, City Attorney Herrera has asked that the United States Attorney for Northern California, Joseph Russoniello, promise not to prosecute any law enforcement officials who fail to report undocumented juveniles at the time of arrest. Herrera's letter asks for a response by December 7. 

Despite the fact that Russoniello said he would give no assurances, he has not answered Herrera's letter in writing (note that he does not have to). In the meantime, the Herrera's office is waiting until December 7 to see how and if Russoniello formally responds. 

2) What is the status of Healthy San Francisco?

Right now the lawsuit claiming that the employer contribution requirement violates federal law is pending at the United States Supreme Court. On October 5, the Supremes asked the United States Solicitor General to weigh in on whether the Supreme Court should hear the case

While there is no time limit on how long the Solicitor General can take to get back to the court, usually such opinions are dispatched withing 30 days. It has been longer than 30 days, of course, so the opinion could come at any time.

My guess is that the battle over federal health care system changes has muddied the water on this issue, so we probably won't see the letter until after the final reform bill can be examined by the Solicitor General. 

3) What happened to Friday videos?

Having so many videos on the screen was slowing down people's mobile devices, so I'm working on a separate tab that will open up to a page of videos.

So, there you go.

Feel free to send your political questions to melissagriff@gmail.com

Also, constructive criticism about the new page design is welcome. I'm still tweaking it.

Happy Monday!

-Melissa

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.”

Santuary City Fight Won't Really Get Dicey Until The Holidays

In news of the expected, the Board of Supervisors passed a new sanctuary city law proposed by Supervisor David Campos.

Under the ordinance, law enforcement will be required to notify federal immigration authorities about suspected undocumented youths only after conviction of a felony or grand jury indictment as an adult for a felony. Presently, such notification takes place at the time of arrest.

The measure passed with a vote of 8-2, with Supervisors Sean Elsbernd and Carmen Chu voting no. (Supervisor Michela Alioto-Pier was not at Tuesday’s meeting, but had voted against the ordinance in committee.)

People on both sides of the sanctuary city debate are all fired up about this development, but no one should expect a policy change any time soon.

First, board rules require that the law be voted on a second time next Tuesday. (Don’t ask why — just trust me on this.) Second, Mistermayor has 10 days to veto the ordinance, which his spokesman Joe Arellano confirmed he will do. The board then has 30 days to override that veto, and with eight solid votes in favor of the ordinance, you can bet that will happen well before the deadline. Finally, local laws go into effect 30 days after a veto override, so it will be around mid-December before any changes could happen. (Board Rules 2.18, 2.18.3, and 2.20 referenced. pdf. of Board Rules here: Download Board of Supervisors Rules of Order.)   

Given the mayor’s stated opposition to enforcing the law once it is finally on the books, there will surely be fireworks. Just in time for the new year.

QUOTE OF THE MEETING:

While we have done what we could on plastic bags so far at this tier, I believe that we now need to tackle paper bags.

- Supervisor Ross Mirkarimi is introducing legislation to require a 10 cent rebate for each person who uses their own bag when purchasing items from those stores already subject to the plastic bag ban. Tackling paper bags sounds fun! I smell a flash mob...

[No, I don't know why this got so effed up in the print version]

-Melissa

With Friends Like These...UPDATED

UPDATE: Not that I thought otherwise, but Supervisor Daly issued a statement to the Bay Area Reporter (which reported this story before I did) saying "I also take this opportunity to denounce the homophobic comment reported in your column, as I denounce the many racist and anti-immigrant comments that I have received." Look for the full response at the BAR this week.

Constant Readers,

When I wrote about the public hearing on the proposed new Sanctuary City law, I mentioned that there were two people who spoke against the proposed ordinance and each was mightily and continuously hissed. (Supervisor Chiu should have brought that shit to order, but didn't. I'm just saying: Peskin would never have let that happen.)

But it turns out that hissing was only the beginning...

Let me set the stage here: At the hearing, people kept comparing the legal mess we are about to get The City into with the sanctuary city ordinance to the legal limb we went out on for gay marriage.

So, a dude named Colin Gallagher got up and said something like: I'm gay and it's not a choice. People who come here illegally are making a choice. Don't compare my struggles with theirs. (I looked for his exact statement in the captions from the meeting and it is all jacked up and incomprehensible - prolly on account of the hissing.) He said some other stuff about how this all beyond the jurisdiction of the Supes.

While I didn't see it, Campos later said that a bunch of reporters breathlessley chased Gallagher down to get quotes. Mission Local confirmed this.

This all went down on Monday, October 5.

On Wednesday, October 7, this letter from Gallagher ran in The Examiner:

As soon as the Board of Supervisors votes to prohibit the reporting of illegal immigrant youth felons to ICE, Mayor Gavin Newsom should announce that the reporting will continue as before and that he will not condone firing or disciplining any public safety officer for complying with federal law. 

Certainly any public safety officer disciplined for reporting an illegal alien to immigration authorities would have grounds for a civil suit against The City that could lead to the sanctuary ordinance being struck down. This represents an opportunity for the mayor to demonstrate that, unlike the majority of supervisors, he takes seriously the safety of all San Franciscans from violent gangs like MS-13, which exploits the well-intentioned local sanctuary policy.

At some point after that letter ran in the paper, Gallagher got a voicemail message. (Full disclosure: I haven't heard the message, though he offered to let me listen to it.)

Yeah pick up the phone Colin Gallagher - I'm calling and leaving this message for you. It's always yuppie fags like you, yuppies like you, who are ruining this city. The city [unintelligible] justification for the people who have attitudes and ideologies like you. Who walk around in fear of gangs and stuff like that - that has nothing to do with you - OK - You understand what this is doing. The sanctuary policy is not even helping. You don't even have your facts straight with this silly fucking editorial that you put in the paper. I'm gonna call you every single day hour on the hour until you pick up. It's yuppies like you with your fucking ideology  that's ruining the city. Chris Daly is more of a San Franciscan than anything you can possibly know. Don't say San Franciscan here when you weren't even born in this city. You don't hear people from New York saying they were New Yorkers. Fucking yuppie scum is what you are. Pick up the phone asshole.

My usual complaint about politics in this city is that people are humorless. But this is just a whole 'nother level. (Granted this is just one crazy person - there are thousands of people who didn't call Gallagher.)

The sanctuary ordinance will be before the full Board tomorrow where it will pass.

And everyone can calm down for a minute.

-Melissa

ALSO: You can read the Bay Area Reporter's piece on this incident here.

Sanctuary City Fight Hasn't Really Begun

An overflow room had to be set up in the North Light Court at City Hall on Monday because Room 250 was bursting with people interested in the Public Safety Committee hearing on Supervisor David Campos’ proposal to change San Francisco’s sanctuary policy. Under Campos’ amendment, law enforcement officers would no longer have to report potentially undocumented youth to federal immigration officials at the time of arrest — they would only have to notify the feds after a juvenile is actually convicted of a felony or after a grand jury indicts the juvenile as an adult.

For some three hours on Monday, members of the public spoke in favor of the amendment. Only two people made statements against the proposal, and both were met with hissing from the audience. Supporters of the new policy spoke about the need to make sure young people receive full “due process” before being subjected to deportation to a country where they may not have any family or other support.

I have written here before about my doubts that the city attorney will issue rules that prohibit officials from reporting undocumented juveniles who are arrested for felonies. I had a chance to speak with Supervisor Campos after the hearing and asked him about the enforceability of his proposal.

He correctly pointed out that the amendment doesn’t stop city employees from reporting juveniles to the federal authorities at any stage of the criminal process; instead, it simply moves the point at which city employees must inform the feds from the time of felony arrest (where it is now) to the point of indictment as an adult or conviction. According to Campos, “this change is a policy decision that the board is entitled to make.” (Proposed law here in pdf  Download Campos Sanctuary City.)

So, why do we currently have a policy requiring law enforcement to report juveniles to immigration officials at the time of arrest and not after a conviction? For starters, California courts have held that the right to due process is not violated when information about undocumented arrestees is conveyed to the feds. (Fonseca v. Fong, 167 Cal.App. 4th 922, 938, n.15 (2008).) In other words: because we can. Whether we must is trickier.

Federal law says that The City cannot punish government employees who want to give information to immigration authorities. (8 U.S.C. sec. 1373.) Also, state law actually requires law enforcement officials to notify federal immigration at the point of arrest (not conviction) whenever a person is picked up for certain drug crimes. (Health & Safety Code sec. 11369.) These factors, plus some old-fashioned executive decision-making by the mayor, led to the current sanctuary policy.

Deciding whether and how this policy can legally be moved around to protect juveniles will fall to City Attorney (and mayoral hopeful) Dennis Herrera, who told me, “We’ll consider what the board ultimately passes and we’ll advise our clients accordingly with respect to how that interacts with state and federal law.”

And if Herrera’s office does not advise clients to be more lenient on juveniles who are arrested for felonies?

“The board will have to find a way to deal with that,” Campos said.