Tuesday, September 24, 2013 · by Tamara Aparton
By Jeff Adachi
Three years ago, a new federal deportation program promised to make us safer. Instead, it has made the U.S. a more dangerous country for innocent people.
By eroding trust between immigrants and law enforcement, the inaptly named “Secure Communities” program, or S-Comm, has intimidated victims and witnesses of crimes from coming forward. It has blanketed entire communities with a fear of calling 911. It has undercut community policing efforts and violated the due process rights of hundreds of thousands across the nation.
It’s past time for action. The damage to public safety and basic constitutional principles is growing by the day.
California Governor Jerry Brown should sign a bill currently on his desk called the TRUST Act (AB 4) to create a bare-minimum standard across the state guarding against some of the worst abuses of this program, including in conservative counties where immigrants are routinely subject to questionable arrest practices.
And here in San Francisco, we must go a step further.
As a city that prides itself on being inclusive and accepting of our diverse communities, we should join with Santa Clara County, Calif., Washington, DC, and Cook County, Ill. in enacting the strongest protections possible against improper detentions sparked by this failed program.
That means the San Francisco Board of Supervisors must pass the pending Due Process for All Ordinance this coming Tuesday, without carve outs. The Ordinance would essentially disentangle local law enforcement from our broken immigration system by prohibiting the prolonged detention of immigrants based on only their immigration status.
As San Francisco’s Public Defender, I’ve witnessed first-hand how this program has damaged public safety and sabotaged efforts both to defend innocent people wrongly accused of crimes and to rehabilitate people with longstanding ties to the community who, like many of us, may have made mistakes.
Even in progressive San Francisco, innocent people hurt by Secure Communities are not hard to find. Agopito Hernandez is among them. Mr. Hernandez is a devoted family man — a beloved husband, father and grandfather. He had no criminal record when he was arrested March 4, 2012 after his SUV plunged into the frigid waters of the San Francisco Bay.
Mr. Hernandez, his two teenage sons and their friend were inside the vehicle but escaped injury. The foursome had finished a late-night crabbing trip near the Gashouse Cove Marina when Hernandez tried to back out of his parking space. When the car wouldn’t move, Hernandez hit the gas harder and the SUV spun out of control. His brakes, which had given him minor problems in the past, failed to work. Hernandez spun the car in one-and-a-half circles to avoid hitting anything, then lost control. The SUV went over the sidewalk and into the water.
Mr. Hernandez told responding officers that he had been having brake trouble, but police never investigated the mechanical mishap. He was charged with reckless driving, child endangerment, and giving false information to an officer.
At the two-day trial, a witness who helped the family out of the water as well as Mr. Hernandez’s passengers testified in his defense. His public defender presented physical evidence that that the incident was an accident, not reckless driving.
Jury members deliberated less than two hours before finding him not guilty of all charges. But Mr. Hernandez was anything but free.
It didn’t matter that Mr. Hernandez had been completely exonerated. It didn’t matter that he had been falsely arrested. His detention was enough to trigger an ICE hold and eventual deportation. The law-abiding grandfather was ripped away from the family he raised in the city that he loved.
It’s worth reviewing how we got into this mess. Back in June 2010, the controversial “S-Comm” was activated in San Francisco without the permission of city leaders and against the will of then-Sheriff Michael Hennessey.
This program automatically checks the immigration status of every individual at the point of arrest by sharing fingerprint data with ICE. If there is a match in ICE’s flawed database, a civil immigration detainer request, also known as an “ICE hold,” is sent to detain an individual for extra time in the local jail beyond when the criminal matter requires release. That means an individual can be held for ICE even if their charges are dismissed, they are found innocent, or they have served their time. It is through this constitutionally suspect process that almost 800 San Franciscans have been deported as of May 2013.
As Attorney General Kamala Harris explained in a December 2012 memo, ICE holds are merely requests, and are not mandatory, because local law enforcement cannot be required to carry out the federal government’s job of immigration enforcement. Several months later, her successor as SF District Attorney, George Gascón, made an even stronger point: since these holds fail to meet even the most basic due process standard and damage community trust in law enforcement, law enforcement agencies should stay out of the “ill-conceived process “altogether.
I’m proud to stand with DA Gascón and San Francisco Sheriff Ross Mirkarimi in supporting an ordinance which ensures our city will not waste any local resources on responding to these burdensome and likely unconstitutional requests.
Despite the misinformed claims of some critics, the Ordinance will not lead to individuals with violent convictions being released. In California, people charged with violent offenses are denied bail or held on very high bails. If convicted, they are turned over to the state prison system to serve their time. Responding to ICE hold requests generated by S-Comm on a local level imperils only those arrested for minor offenses, many of whom will never be convicted of a crime. And it puts immigrant victims and witnesses of crime at risk of deportation.
Holding San Franciscans in local jails based purely on their immigration status is an inefficient use of limited public safety resources. Let’s pass the SF Due Process for All Ordinance and get our great city out of the deportation business.
Jeff Adachi is the elected Public Defender of San Francisco and has been a public defender and trial attorney for more than 20 years. Adachi’s office enjoys a nationally recognized reputation for its innovative programs, including its Clean Slate expungement programs, prisoner reentry services, and expanding juvenile representation to include holistic, family and educational-based support.