We Can Do Better Than the Donald Trump Act

One month ago today, a horrible thing happened: a 32-year-old San Francisco woman named Kate Steinle was walking with her father and a family friend near Pier 14, a waterfront plaza a few blocks from where the Bay Bridge connects to the peninsula.  It was the early evening in a crowded street in one of the safest, most tourist-friendly areas of the city. Out of nowhere, three gunshots. What the hell? Here? Kate Steinle had been hit in the chest, piercing her aorta. Her father, standing next to her, suddenly found himself performing CPR on his daughter. She died a few hours later at San Francisco General.

A dizzying array of facts came out after that. Just a few hours later, police arrested a 45-year-old (or 52-year-old; officials cited to several conflicting age records) Mexican national named Francisco Sanchez. He claimed that he had found the gun under a park bench, wrapped a T-shirt, and that he had picked it up after taking an undisclosed number of sleeping pills that he had found in a trash can; apparently taking strange things from odd places was a habit for Sanchez. After firing the shots, he kicked the gun into the bay, lit a cigarette, and walked away. He claims not to remember the shooting at all and told police that the gun went off “on its own.” He did not rob Kate Steinle or otherwise indicate any motive for his actions. Press reports described his manner during jailhouse interviews as confused and incoherent, and he offered bewildered quotes like “They say I attacked someone” and “I only want to say that if the court wants to find me guilty, I wouldn’t get mad.” It was later reported that the gun was a government-issued weapon that had been stolen from a U.S. Bureau of Land Management ranger during a car prowl three days earlier; it’s not clear if Sanchez took it or if someone else left it under the bench for him to find. It doesn’t really matter. Sanchez was charged with first-degree murder on July 6. Kate Steinle’s parents had buried their daughter four days earlier.

The facts get worse. It turns out that Sanchez had been deported from the United States five times beginning in 1994 and as recently as 2009. He served several state and federal prison sentences for heroin possession, other drug-related charges, and illegal reentry. Only a few months after his fifth (fifth!) deportation, he was again caught attempting to cross the border in Texas; his sentencing court recommended that he be sent to “a federal medical facility as soon as possible.” In March of 2015, at the conclusion of Sanchez’s federal prison term for illegal reentry, the U.S. Bureau of Prisons transferred him from a California prison to law enforcement in San Francisco in order to face an outstanding drug charge there. After the 20-year-old allegations against him were dropped, however, San Francisco authorities, after confirming that there were no other outstanding warrants for Sanchez’s arrest, let him go free.

Why was Sanchez, an undocumented immigrant, allowed to walk? San Francisco has been a sanctuary city since 1989, which means that local law enforcement does not verify or inquire about an arrestee’s immigration status. Furthermore, federal Immigration and Customs Enforcement (ICE) authorities, upon learning that an undocumented immigrant is in the custody of local law enforcement authorities, will often issue an “immigration detainer,” a noncompulsory request that law enforcement hold on to the individual for 48 hours to allow ICE to assume custody. Sanctuary cities generally do not honor such immigration detainers, and if they no longer have a reason to keep the individual in custody, they are released; in other words, your treatment if you commit a crime in a sanctuary city is the same regardless of whether you are an undocumented immigrant or a fifth-generation Californian.

San Francisco and the hundreds of other U.S. cities with a sanctuary policy in place proffer a few justifications for their actions. First, it’s expensive; Miami-Dade County reported that it spent millions of dollars per year in unreimbursed costs holding on to detainees pursuant to an ICE request. Second, detainers unsupported by an arrest warrant are arguably illegal, and none other than the U.S. Department of Homeland Security has recently acknowledged the “increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment” provisions that protect against searches and seizures unsupported by probable cause. Finally, the detainer policy’s usage is suspect, and its implications are troubling; a number of cities have expressed concern at the proportion of detainees who have no criminal history, and local law enforcement tell of immigrant populations suddenly reluctant to cooperate with police and help them fight serious street crime due to fear that even talking to law enforcement would result in deportation. These cities, faced with their own budget shortfalls and the need to keep their streets safe, very sensibly decided that federal immigration authorities had no business making those tasks any harder than they already were.

Beneath the surface, too, there’s a certain level of stay-in-your-lane resentment. Congress has spent decades failing to enact comprehensive immigration reform that would, among other things, provide a path to citizenship for the millions of law-abiding undocumented immigrants in the United States and just maybe, I don’t know, change a few incentives in the immigration system to ensure that a greater proportion of immigration is of the safe, smart, and legal varieties. Instead, we get occasional asinine calls to build a higher wall. In the U.S. system of federalism, Congress has authority to set immigration policy and the police the borders, but it is state governments (and components thereof, including local governments) that are charged with the so-called “police power”: to legislate and regulate for the betterment of their residents’ health, safety, morals, and general welfare. In other words, states have to do the day-to-day dirty work of keeping people safe, healthy, and happy. Thus, in addition to the Fourth Amendment issues noted above, some courts have noted that detainer requests may run afoul of the Tenth Amendment’s anti-comandeering principle, which prohibits the federal government from forcing state or local government officials to enforce federal law or assume federal responsibilities. Here, where Congress can’t or won’t enact a sensible immigration policy, many state governments understandably feel no particular imperative to spend their limited time and valuable resources to enforce a broken system that isn’t even their responsibility in the first place.

With this backdrop, enter the horrifying, tragic, senseless murder of Kate Steinle by an undocumented immigrant who would have been up for his sixth deportation. It turns out that ICE indeed had placed a detainer on Sanchez after the federal prison system released him to the custody of San Francisco law enforcement, and that San Francisco authorities indeed had promptly filed Sanchez’s detainer in the trash can. Perhaps absent the sanctuary city policy, Kate Steinle would still be alive today. House Republicans promptly introduced H.R. 3009, the “Enforce the Law for Sanctuary Cities Act” (or the “Donald Trump Act,” as it was dubbed by House Minority Leader and San Francisco congresswoman Nancy Pelosi), which would withhold several important sources of federal law enforcement funds from cities with sanctuary policies in place. The House passed it easily last week, and the Senate is not far behind.

If you’re confused, it’s for good reason. Kate Steinle’s death is a horrible tragedy and a senseless crime. But the connection between an alleged murder by an undocumented immigrant and the policy response of stripping municipal police forces of funding they need to fight crime is, to put it generously, tenuous. Twenty mayors from some of the largest cities in the U.S., including New York City, Chicago, Philadelphia, Washington, Seattle, and Pittsburgh, sent a hasty letter to Congress pleading with them to not hamstring their efforts to keep their cities safe, but to no avail.

As tempting as the made-for-social-media soundbite may be, it’s important to point out that Kate Steinle’s death does not mean that San Francisco’s sanctuary city policy failed at ensuring public safety. Sanchez did not attack Kate Steinle because of his status as an undocumented immigrant. He was a man with a history of mental illness and drug use who, of all things found a gun under a park bench while he was high. I want to be very clear that none of these factors excuse his actions. However, he would have been no less high, no less unstable, and no less armed with a gun in the middle of a crowded downtown park if he were a documented immigrant or the aforementioned fifth-generation Californian. If a U.S. citizen had pulled the trigger, we would call it a tragedy, but there would be no flurry of Congressional activity to pass gun control legislation or limit the availability of over-the-counter drugs. But because of the shooter’s status — not his behavior or his actions in this particular instance, but his status — suddenly Capitol Hill can’t act fast enough.

Again, the murder of Kate Steinle was a horrible and senseless act, and Sanchez should go to jail, or be deported, or both. Congress may want to take a hard look at the way that the components of the federal judicial system coordinate to deal with undocumented immigrants who repeatedly turn to crime (remember, it’s not as if this was Sanchez’s first stint in federal custody). But the Donald Trump Act is the laziest form of policymaking, a disingenuous, knee-jerk response that does nothing to address the myriad other factors that contributed to Kate Steinle’s death: an antiquated national immigration policy, the general proliferation of firearms and the occasionally-dubious steps taken to secure them, the failure to diagnose or treat inmates who demonstrate repeated signs of mental illness, the aforementioned treatment of undocumented felons, and the sickening happenstance of an unstable person in a drug-induced haze who picked up a loaded handgun that he happened to find under a city park bench. Instead, the Donald Trump Act politicizes Kate Steinle’s death in the name of attention-grabbing headlines, anti-immigrant sentiment, and political grandstanding, and all Congress will have to show for it is a host of cash-strapped cities that will be less safe places to live, work, and play for immigrant and non-immigrant communities alike. The Senate should not pass it.

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