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Lawsuits challenge sanctuary policies

- 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.

San Francisco passed a sanctuary ordinance in 1989 that barred city employees, include police, from asking about immigration status or cooperating with immigration investigations and arrests unless required by warrants. In April, Mayor Gavin Newsom began an $83,000 public-awareness campaign aimed at promoting San Francisco's sanctuary-city status.

Mr. Kobach said sanctuary policies fall into two categories: "don't ask" and "don't tell." A "don't ask" ordinance prohibits city workers from inquiring about an individual's immigration status. A "don't tell" policy prevents them from reporting a suspected illegal immigrant to immigration authorities.

The San Francisco ordinance falls under the more extreme "don't tell" category, he said. In Denver, the case may be tougher to prove because city officials have repeatedly denied the presence of sanctuary status.

"Denver is not - and has never been - a so-called sanctuary city," said Sue Cobb, a spokeswoman for Mayor John Hickenlooper.

In 2006, the Colorado legislature passed a law prohibiting jurisdictions from enacting sanctuary policies. Those that do would become ineligible for state grants.

Critics argue that two executive orders approved in Denver give the city de facto sanctuary status. The first, Executive Order 116, approved in 1998, forbids discrimination against legal foreign nationals in the delivery of services.

The second, Executive Order 119, issued in 2002, allows Denver agencies to accept consular identification cards for identification purposes. In 2003, however, the legislature approved a law restricting the use of such cards, and "Denver accepts identification consistent with state law," according to the mayor's office.

Denver came under fire in 2005 after it was learned that Raul Gomez-Garcia, convicted of murdering a police officer, had never had his immigration status questioned even after being issued traffic tickets. Gomez-Garcia, a Mexican national, was in the country illegally and did not have a valid driver's license.

"It doesn't have to be a written policy. Federal law also prohibits informal policies," said Mr. Kobach. "They [attorneys] can establish a pattern and practice."