- The Washington Times - Wednesday, February 25, 2009

UPDATED:

Margaret Rains and Haley Tepe were sitting down to enjoy ice cream at a Baskin-Robbins in Aurora, Colo., when a sport utility vehicle driven by an illegal immigrant sent two cars plowing into the shop, leaving three dead and the two women injured.

Now the women are taking action against the city of Denver, arguing that its sanctuary-city policy contributed to the Sept. 4 crash. The driver, 23-year-old Francis Hernandez, had been arrested numerous times by Denver police, but was never reported to federal immigration authorities.

“Despite these numerous arrests and the readily ascertainable illegal-immigrant status of Mr. Hernandez, at no time were proper procedures relating to the reporting, detention and handling of illegal immigrants followed by the law-enforcement agencies of the city of Denver,” said the claim, filed on behalf of Ms. Rains.

Her attorney, Stuart Morse, filed the claim Nov. 4 as a precursor to a lawsuit against the city of Denver. He has said that he also may file claims against other Colorado jurisdictions, including the city of Aurora, where Mr. Hernandez was arrested.

The odds aren’t in their favor. A handful of other victims of illegal-immigrant crime have filed similar claims and lawsuits in the past few years, without much success, mainly because of issues over standing, said Michael Hethmon, general counsel of the Immigration Reform Law Institute.

He pointed to two similar cases that were thrown out because they were filed in federal court. However, he said, as reports of such crimes proliferate and the case law grows, a court ultimately will side with the victims.

“The number of these cases is simply accelerating because of the growth in the number of illegal aliens and because of the havoc and tragedy they’re causing,” Mr. Hethmon said. “We’re on the cutting edge of the law, but it’s simply a matter of one case working its way through the court system, and as soon as one is successful, you’ll see the tort bar all over this.”

The most visible case pending centers on San Francisco’s sanctuary-city policy. Anthony Bologna and his two sons, Michael, 20, and Matthew, 16, were fatally shot in a traffic altercation June 22. Police have charged Edwin Ramos, 21, an oft-arrested Salvadoran native suspected of living in California illegally, in the killings.

Last year, widow Danielle Bologna filed a claim saying San Francisco’s sanctuary-city policy was a “substantial factor” in the deaths of her husband and sons.

The city rejected her claim, paving the way for a wrongful-death lawsuit that her attorneys are expected to file sometime this year. Mr. Ramos also faces three murder charges.

“The Bologna case is in many ways a definitive case for the rest of the country,” said Kris Kobach, a law professor and one of Mrs. Bologna’s attorneys.

“The city was very culpable in the events leading to the Bologna deaths. It was reasonably foreseeable that if you put Ramos back on the street, he would injure or kill someone else.”

The Bologna case has two elements critical to the success of such cases: an offender in the country illegally who had been arrested but never reported to federal authorities, and a city with a clear sanctuary-city policy.

Mr. Ramos was a member of the MS-13 gang and had been convicted twice of crimes committed as a juvenile. He also had been arrested three months before the Bologna shootings, but San Francisco authorities never referred him to Immigration and Customs Enforcement for deportation.

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