Lawsuits Challenge Sanctuary Policies

Valerie Richardson, Washington Times, February 25, 2009

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.”

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Mr. Kobach [Kris Kobach, a law professor] 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.

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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.

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