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Oakland Defies Washington, Part 2

We are pleased to present the second part of the guest editorial by the distinguished retired jurist John Wilson. 

Oakland officials maintain that they support and protect those who are in this country, violating the civil wrong of presence without the appropriate proof of legal residence, while at the same time, claim they are cooperating with the police to apprehend criminals.  Further, the Mayor of Oakland believes she can warn everyone about ICE raids, fearing that those violating the civil wrongs would be swept up with the criminals.

Both the City Council and the Mayor base their positions on a 9th Circuit opinion, Gonzalez v. City of Peoria (722 F2d 468), which dates back to 1983.  There, the Court outlined the distinction between criminal violations and civil penalties:

“We therefore conclude that state law authorizes Peoria police to enforce the criminal provisions of the Immigration and Naturalization Act. We firmly emphasize, however, that this authorization is limited to criminal violations. Many of the problems arising from implementation of the City’s written policies have derived from a failure to distinguish between civil and criminal violations of the Act. Several of the policy statements use the term “illegal alien,” which obscures the distinction between the civil and the criminal violations. In some instances, that term has been used by the City to mean an alien who has illegally entered the country, which is a criminal violation under section 1325. In others, it has meant an alien who is illegally present in the United States, which is only a civil violation. There are numerous reasons why a person could be illegally present in the United States without having entered in violation of section 1325. Examples include expiration of a visitor’s visa, change of student status, or acquisition of prohibited employment. Arrest of a person for illegal presence would exceed the authority granted Peoria police by state law.”

The opinion goes on to state ” nothing in federal law precluded Peoria police from enforcing the criminal provisions of the Immigration and Naturalization Act. Arizona law authorizes local officers to arrest for violations of 8 U.S.C. Sec. 1325 where there is probable cause to believe the arrestee has illegally entered the United States. However, enforcement procedures must distinguish illegal entry from illegal presence and must comply with all arrest requirements imposed by the federal Constitution”. (emphasis added).

To answer the question asked in the headline to this article; no, Sanctuary Cities are not “legal.”  These communities are assisting individuals who are committing civil wrongs to continue to commit those acts without fear of the legal consequences of their noncompliance with United States Immigration law.  But is that illegal act the same thing as committing  a crime?  In this context, the answer is, not necessarily.
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If the City of Oakland and Mayor Schaaf are protecting persons who are committing criminal acts, then both are accomplices to those crimes.  However, both the City and the Mayor insist they have no intention of aiding those committing crimes – they only intend to protect people committing the civil wrong of illegal presence.

So how does one address the situation where someone is aiding persons committing a civil wrong?

Recently, the Justice Department has brought suit against the State of California.  As described by the New York Times, California’s sanctuary city policies “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law.” No doubt, Justice will be asking the Court to issue an injunction against the state and its sanctuary policies.

When someone commits a civil wrong, suing them in Court, and asking the Court to enjoin them from committing further civil wrongs is always the appropriate way to handle the illegal conduct.

It remains to be seen how the Court will rule – but in general, there can be no doubt that the old adage applies here – two wrongs (illegal presence, and a sanctuary city) do not make a “right” to remain in the United States.

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Oakland Defies Washington

We are pleased to present a guest editorial by the distinguished retired jurist John Wilson

The Mayor of Oakland, California, Libby Schaaf, outraged many when she recently warned those living in Oakland that ICE was planning an enforcement action “within the next 24 hours.”    In issuing this warning, Mayor Schaaf acted in defiance of an Executive Order issued by President Trump on January 25, 2017, which empowers the “Attorney General (to) take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

However, enforcement of the President’s Executive Order was blocked by a District Judge of the Northern District of California in November of 2017.  Justice William Orrick, an Obama appointee, ruled that the directive was “unconstitutional on its face” since the Order blocked federal funding of sanctuary cities.

Mayor Schaaf’s actions are consistent with the wishes of the City of Oakland, which declared itself a sanctuary city by a unanimous Resolution issued on November 29, 2016.  In that document, the City Council stated that they reaffirm “the declaration that Oakland is a City of Refuge for immigrants from all countries,” and that “the Oakland City Council opposes immigration raids.”

In attempting to understand the legality of Oakland’s actions, it is important to note that in its Resolution, the City Council specifically stated that “members of the Oakland Police Department, shall not enforce Federal civil immigration laws and shall not use city monies, resources or personnel to investigate, question, detect or apprehend persons whose only violation is or may be a civil violation of immigration law.”  Further, “the Oakland Police Department will continue to cooperate with Federal immigration agencies in matters involving criminal activity and the protection of public safety.”

I have highlighted the words “civil” and “criminal” to emphasize a distinction made by the Oakland City Council.  Clearly, the Council has drawn a distinction between the enforcement of “civil violations” of the immigration law, and protecting the public from “criminal activity.”

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Part of the answer is actually very simple – it is not a criminal act to be in this country unlawfully.  However, whether Oakland’s Resolution is legal, is not as simple to answer.

8 USC Sec. 1325 describes the crime of “improper entry” into the United States.  This is a federal misdemeanor, punishable by no more than 6 months of incarceration, and a fine of no more than $250.  Thus, an individual actually caught entering the country illegally, such as a person observed jumping over a border wall, would be committing a misdemeanor.

However, not every illegal immigrant entered the United States illegally.  Some have overstayed their visas, or become ineligible for continued residence.  8 USC Sec. 1227 outlines the various classes of deportable and inadmissible aliens.  These include those convicted of various crimes, those who made fraudulent statements on their applications, and those involved in terrorism-related activities.

8 USC Sec. 1229 describes the penalty for being one of the classes of persons described in 8 USC Sec. 1227 – deportation after removal proceedings.  But deportation is not, and I repeat this, NOT a criminal penalty – it is a CIVIL penalty.  Thus, to put this as clearly as possible, it is a crime to enter the country illegally – but it is a civil wrong to be present in the country without proper documentation.

Truly, these are distinctions only a lawyer could love.  But if we are to understand just what those who claim to be a sanctuary city are espousing, we must understand this hair-splitting difference.

The Report Concludes Tomorrow.

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THE KATE STEINLE VERDICT – WHAT WENT WRONG

The New York Analysis of Policy and Government is honored to present this guest editorial by retired Judge John H. Wilson.

On July 1, 2015, Kate Steinle, a 32 year old native Californian, was shot and killed with a bullet fired from a gun held by Jose Garcia Zarate.  This incident occurred on Pier 14 in San Francisco, a popular tourist attraction in the Bay area.  Mr. Garcia Zarate was arrested and tried for this offense, and was recently acquitted of murder.  The jury found him guilty of only one count of felony gun possession.

Not since the acquittal of OJ Simpson for the murder of his wife Nicole has a verdict caused such controversy.  “A disgraceful verdict” President Trump tweeted. (as noted in the LA Times)  “I definitely feel the system failed her,” a woman in San Francisco said.  Others felt that the trial had been fair, and the jury knew the evidence better than they

But did they?  Let us put aside the political issues involved in this case – whether Garcia Zarate was a previously deported illegal alien, and a previously convicted felon has no bearing on whether or not he was guilty of the murder of Kate Steinle.  Legally, letting a jury know about factors such as the defendant’s previous convictions and immigration status have a prejudicial effect, and may blind a jury to their task – the review of the facts, and only the facts.  Rather than convict a defendant for the crime alleged, hearing of the background of the accused, the jury may convict them for being a bad person – something which would be abhorrent to our system of justice.

Instead, let us focus on the evidence that was presented to the jury, and determine just what might have “gone wrong.”

Garcia Zarate states that he found a gun, and was either shooting at a Sea Lion, or the gun went off accidentally (he had told both stories) while he was handling the unfamiliar weapon.  However the gun came to be fired, the bullet struck Ms Steinle in the back, causing her death, while she was in a public place.

“The prosecutor presented evidence that the pistol that killed Steinle required a firm pull of the trigger to fire and that Garcia Zarate threw the firearm into San Francisco Bay after Steinle fell, according to the San Francisco Chronicle. A crime-scene inspector also testified that the defendant had to have aimed the gun at Steinle for the bullet to follow the path it did.”

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However, “the defense called an expert who testified that an unintentional ricochet shot killed Steinle. They argued that the weapon went off in their client’s hands in what was a tragic accident.”    To unintentionally cause the death of another human being is the standard definition for involuntary manslaughter.

Thus, most legal experts in Criminal Law would believe that the Prosecution had attempted to show that Garcia Zarate had intentionally caused the death of Kate Steinle, while the defense sought a verdict with a lesser degree of culpability – he may have fired the gun, but he didn’t intend to kill the victim.

So, again we ask – what went wrong?  Under any reasonable view of the evidence, at the least, the verdict should have been one of involuntary manslaughter.  The defendant fires a gun in a public place, and predictably enough, the bullet hits another person, causing their death.

One could blame the prosecution for failing to effectively counter the defense claim that Garcia Zarate was just a hapless fool, playing with an unfamiliar gun.  But this is a matter of trial strategy.  The prosecution played to a view of the facts that would result in a conviction for the most serious charge, and in turn, a maximum sentence from the Court.  One could also blame the defense, but this would not be reasonable.  The defense attorneys did their job.

The only reasonable conclusion leaves the blame with the jury.  Under the California pattern jury instructions, a defendant is guilty of Murder when a person intentionally commits an act, the natural and probable consequences of the act were dangerous to human life, and the person acted with conscious disregard for human life. The California jury instruction for involuntary manslaughter states that to be guilty of this charge, a person is aware of the risk to life that their actions created and consciously disregarded that risk.  Either standard would seem to apply, depending on your view of Mr. Garcia Zarate’s ability to appreciate the risk to human life of firing a gun in a public place.

Under no reasonable view of the evidence, then, could the jury have found this defendant not guilty of either Murder or Involuntary Manslaughter.  Clearly, the jurors have their own reasons, and possibly their own agenda, for this verdict.