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Hey, Donald Trump: Stop Lying About Illegals and the Murder in S.F.

An innocent woman minding her own business was killed by a convicted felon in the country illegally who was on the streets of San Francisco because the local jail had ignored a “detainer” from Immigration and Customs Enforcement (ICE). Ignoring the detainer was required by San Francisco’s “sanctuary city” policy.

The usual xenophobic suspects raise a hue and cry against all sanctuary cities or proposals to declare sanctuary cities. What is different in the San Francisco case is that people who should know better—including both of California’s Democratic senators---have joined the mob with the torches and pitchforks. You know an argument is going mainstream when Hillary Clinton adopts it.

They are all wrong, and wrong for reasons that affect all people, not just the undocumented.

I confess that from my time as a magistrate, I do have some sympathy for the undocumented. Since I read history, I consider all the colonists to be undocumented but, unlike The Donald Trump, I understand that most of them are decent people as individuals.

Until I was able to stop it temporarily, the Austin jail honored requests by the federal agency not then called ICE to “hold” brown people speaking Spanish who had no papers with them when arrested. Note that I did not say the people were in the country unlawfully. I set out every fact that kept them in jail after they should have been free to go on state charges:

1. They were brown.

2. They spoke Spanish.

3. They had no immigration papers with them when arrested.

Based on these criteria, I watched, for example, a young construction worker kept in jail in spite of the tears of his U.S. citizen wife who asked me how she could feed his U.S. citizen baby if he could not get out and work? His crime? He ran a red light and got put in jail because he had a warrant from a previous traffic ticket he had not paid.

There were no laws like the ones in Arizona and Alabama that required people to carry proof of identity and the right to be in the country. It’s only fair to note that some Western European countries have such laws, so they are not invariably artifacts of the old Soviet Union, which had internal passports.

“Internal passports” mean you can be stopped at any time and forced to “show your papers” and you would need the government’s permission to move from, say, Wisconsin to Mississippi. Assuming anybody were fool enough to make that move.

The U.S. went though a flirtation with internal passports during the Dust Bowl, when California wanted to fence the Okies out. Woody Guthrie ridiculed the idea and the courts finally shot it down, leading to the documentary anarchy that still prevails. Nobody has to have papers but American Indians, who get a card from the Bureau of Indian Affairs and another from tribal government, but even most Indians do not carry them.

The bottom line is, or was, that it was entirely possible for a brown person speaking Spanish with no papers to be a U.S. citizen. As we speak, it is possible to live your whole life in Spanish from San Antonio south, and I am told there are similar border zones in New Mexico, Arizona, and California. In the Kickapoo Traditional Tribe of Texas, English is the third language after Kickapoo and Spanish. It would be good to remember that the people did not move; the border moved.

There are still tribal peoples who did not recognize Spanish sovereignty, did not recognize Mexican sovereignty, and do not recognize U.S. sovereignty. U.S. hegemony is a fact on the ground created by military force applied against another occupying power, Mexico, after Mexico fought to detach itself from Spain as the U.S. fought to detach itself from England.

State courts have no jurisdiction to try immigration cases, which are beastly complicated. Put more simply, I was not in a position to know whether a brown person speaking Spanish sin papeles was lawfully present in the U.S. or even a citizen.

This might form the beginnings of an excuse why Texas state courts routinely engage in wholesale violation of the Vienna Convention on Consular Relations of 1963. The reason the U.S. signed the treaty was to assure that Americans detained in foreign countries would be allowed to call the U.S. Consulate. The duty to allow that call is reciprocal.

The Vienna Convention kicks in if the brown person speaking Spanish claims to be a Mexican citizen. Without that claim, I presume we don’t want to be lining up every brown person to call the Mexican Consulate?

So what do ICE detainers have to do with people who are not brown and don’t speak Spanish? Plenty. The problem is with the whole idea of “detainer.”

In the U.S., the general rule is that your freedom can’t be taken away without a judge’s order. Keeping people locked up because a police officer says so is a textbook definition of “police state.”

An arrest is not, in English Common Law (which forms the basis of most state law), a taking to jail. It’s a taking to the judge, who will then decide what to do. The judge who makes that decision is called a magistrate, and I did that for about five years.

People get “booked”—photographed and fingerprinted---by indulging the fiction that “the judge is not available.” The Supreme Court has held several times that an arrested person must be brought before a judge, who will decide whether the person can be held and, if so, usually set bail.

Police departments often issue “holds” that are nothing more than a police officer calling the jail and saying not to free X when X’s business is done. This is unlawful unless coupled with “I’m on my way to get a warrant.” The warrant is the judge’s order, “bring X to me to answer Y charge.”

The Department of Homeland Security issues immigration detainers that sometimes are based on a judge’s order but sometimes not. Read the detainer form here.

When the detainer form shows on its face that there is a court order being enforced, any state agency should honor it, sanctuary city or not. San Francisco has been trying to say to anybody who will listen that, given the record Juan Francisco Lopez Sanchez had racked up of at least seven felony convictions and five deportations, getting a judge’s order to hold him should have been a piece of cake.

Police seldom want to involve judges in decisions because judges are trained to demand something more than a hunch and at least some judges will not countenance a general rule of discrimination against brown people who speak Spanish.

The shooting of Kathryn Steinle in San Francisco is a tragedy regardless of whether Juan Sanchez killed her accidentally (as he claims) or on purpose. In lawyer-speak, an event may have many proximate causes, causes of a foreseeable evil that would not otherwise happen.

The San Francisco sanctuary city policy, at least as implemented, was a proximate cause of Kathryn Steinle’s death. It was foreseeable because Homeland Security prioritizes criminals for deportation and those criminals that don’t get held will probably commit crimes.

But Kathryn Steinle was also killed, if San Francisco is telling the truth about the nature of the ICE detainer, because the ICE officers could not be bothered to seek a judge’s lawful order.

One narrative makes this about the danger to us all from undocumented persons committing violent crimes, when undocumented persons in fact have much lower violent crime rates than U.S. citizens. When The Donald Trump started this crime scare, Politifact rated his remarks “Mostly False.” Personally, I’d go with “Pants on Fire.”

The narrative that ought to concern us is about danger to us all from the practice of locking people up based on nothing but the say-so of a law enforcement officer. That narrative is true in most of the country and affects everybody.

If ICE actually had a warrant, then shame on San Francisco, but every ICE detainer not backed up by a judge’s order needs to be put on ice and left there. In the quaint words of the Fourth Amendment:

The right of the people to be secure in their persons … against unreasonable … seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the … persons … to be seized.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.