Costs and
Consequences:
The High Price of Policing
Immigrant Communities

A Report by the ACLU of Northern California

COSTS AND CONSEQUENCES:
THE HIGH PRICE OF POLICING IMMIGRANT COMMUNITIES

TABLE OF CONTENTS
EXECUTIVE

SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

METHODOLOGY

AND

CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . 2

THE IMMIGRATION LANDSCAPE. . . . . . . . . . . . . . . . . . . . . . . . . 3
	

Grappling with Immigration Trends and Policies. . . . . . . . 4

	

The Criminality Myth. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

	

Federal Failure, Local Choices. . . . . . . . . . . . . . . . . . . . . . 5

COSTS ASSOCIATED WITH LOCAL POLICING OF IMMIGRANT COMMUNITIES 8
	

Financial Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

	

Public Safety Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

	

Local Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

LEGAL LIMITS AND AVOIDABLE COSTS. . . . . . . . . . . . . . . . . . . 11
	

Stops and Arrests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

	

Case Study: Limiting Costs in Sacramento . . . . . . . . . . . 14

	

Vehicle Checkpoints and Forfeitures. . . . . . . . . . . . . . . . . 15

	

Costly Jail Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

AUTHORS:  Amalia Greenberg Delgado, Soros Justice Advocacy Fellow, and Julia Harumi Mass, Staff Attorney,
American Civil Liberties Union Foundation of Northern California
ADVISORY COMMITTEE:  We are grateful for the time and efforts of retired Sacramento Police Chief Art Venegas,
Kelli Evans, and Michelle Mendez, who reviewed and provided feedback on early drafts of the report and practice
recommendations.
CONTRIBUTIONS: Thank you to Daniel Galindo for his assistance in reaching out to community members and law
enforcement leaders. Many thanks to Marisa Omori for her technical assistance in analyzing the arrest data used in
this report.
EDITOR:  Miriam Gerace  PROOFREADER: Laura Saponara  DESIGN AND LAYOUT:  Gigi Pandian  PRINTING: Inkworks Press
PHOTOGRAPHY: ACLU of Southern California (p 7); Daniel Galindo (p 18, far right); Amalia Greenberg Delgado (p 15, 24);
Gigi Pandian (p 11); Alicia Roman (p 18)
This publication was supported in part by a grant from the Soros Justice Fellowships Program of the Open Society
Foundations.
This report was published by the ACLU of Northern California in February 2011.

EXECUTIVE SUMMARY

L

ocal police and sheriffs are facing some of the most difficult fiscal constraints in decades. At the same time,
federal immigration law and policy have not kept pace with our nation’s workplace needs and other global
causes of migration. The federal immigration failure creates both pressures and incentives for local police and
sheriff ’s deputies to act as immigration agents, but it also creates additional costs and burdens for local peace
officers and agencies who want to stay out of the immigration enforcement business.
This report explores the costs and consequences of local enforcement of federal immigration law. It addresses both
purposeful collaboration between local law enforcement agencies (LLEAs) and the U.S. Immigration and Customs
Enforcement (ICE), and the incidental costs incurred by LLEAs through discretionary enforcement decisions that
particularly impact immigrant communities. Because most LLEAs in northern California have policies against
enforcing civil immigration laws, our primary goal is to provide practical guidance to further those policies and
minimize the fiscal and social costs of incidental immigration enforcement.
The report begins with an overview of the immigration landscape in California, with myth-busting facts about
immigrants and an overview of the social and fiscal costs of local immigration enforcement. The price—often
hidden—of local police practices that lead to civil immigration enforcement is quite high: scarce resources are
diverted from pressing public safety needs, immigrant victims and witnesses fear reporting crime to the police,
criminal investigations are undermined by a lack of trust between police and immigrant community members, and
sometimes the rights of individuals (including U.S. citizens) are violated.
We also examine how every stage of police officers’ everyday interactions with individuals—from responding
to a 911 call or conducting a traffic stop to questioning an arrestee during booking—can lead to immigration
consequences, with an attendant cost to local agencies. Personal stories illustrate some of the dynamics at play, legal
analyses are provided, and proposals for local action suggest ways in which police can limit their hand in federal
immigration enforcement to redirect resources and enhance public safety. Proposals are embedded in the body of
the report. Detailed recommendations are available as a free-standing summary.
There can be no doubt that California residents have a responsibility to abide by the laws of the state and the
country at large and that local police and sheriffs play an essential role in protecting the public safety of all
communities. By considering new ways in which police and community members can move ahead together in a
climate of great fiscal and social pressures, we can more accurately gauge and control the costs of local policing
in immigrant communities and direct our efforts toward public safety priorities that are cost-effective, helpful to
crime-fighting, and fair to all.

1

METHODOLOGY AND CONTRIBUTIONS

W

e are indebted to many people and communities for helping us to gather the information and personal stories
and develop the analysis and proposals that form this report. Through meetings with immigrant community
members and leaders, service providers, and immigrants’ rights advocates, we have learned of policing trends and
collected stories that describe the impact certain police practices have on immigrants, as well as suggestions for
improving interactions between immigrant communities and local law enforcement agencies (LLEAs). We are
especially grateful to the immigrant community members and leaders whose courage and personal experiences
helped us illustrate the need to develop proposals for improving public safety and protecting civil rights.
We are also indebted to the men and women who devote their careers to keeping our communities safe—both
for their ongoing daily work and for sharing the experiences and perspectives that inform the practices we discuss
in this report. Law enforcement agencies have played an integral role in the development of our proposals. Over
twenty local agencies have shared information with us through meetings, conversations, and responses to our
Public Records Act requests. In response to our inquiries, many local law enforcement leaders opened their doors
to dialogue and to building relationships with immigrant community members. Law enforcement leaders and
associations have published much on this topic, providing important insights that support many of our proposals.
Police and local law enforcement leaders have diverse perspectives on these issues, and we have learned from
their experience even when we disagree. Special thanks to Alameda County Sheriff ’s Department, Gilroy Police
Department, Rancho Cordova Police Department, Sacramento County Sheriff ’s Department, Sacramento Police
Department, Santa Clara County Counsel, Santa Rita Jail, Santa Rosa Police Department, San Francisco Police
Department, San Francisco Sheriff ’s Department, San Mateo Sheriff ’s Office, Tehama County Sheriff ’s Office and
Truckee Police Department.
The financial cost analysis of local police practices found throughout the report is based on a number of sources. The
Sacramento County Sheriff ’s Office provided arrest data that included information such as arresting agency, race,
violations charged, and whether immigration detainers were placed on arrestees. Sacramento County, representing
a moderately large and diverse population, illustrates the costs of incidental immigration enforcement and potential
savings available through the adoption of alternative policies.
Cost calculations throughout the report are based on the following: Sacramento County sheriff deputy hourly rate
of $31.72 from the Sacramento County Department of Personnel Services; per diem jail costs of $88 from the
Sacramento County Office of Inspector General Jail Staffing Study; booking costs of $250 provided in an interview
with Santa Rita Jail Lieutenant Garrett O. Holmes1; checkpoints operation estimated at $12,000 in Los Angeles
Police Department mini-grant application to the Office of Traffic Safety.2 Comparable booking and jail costs were
provided through our interviews with local law enforcement agencies throughout northern California. We used an
estimate of three days for the average length of holds based on immigration detainers.3

2

THE IMMIGRATION LANDSCAPE

In 2008, almost 30 percent of California’s 37 million
residents were foreign born.
Of these, 45 percent had become naturalized U.S.
citizens.4
California is home to about 24 percent of the
nation’s undocumented population—about 2.6
million people as of January 2009.5
75 percent of non-citizen Latinos and about 60
percent of Asian non-citizens lived in “mixed
status” households with U.S. citizens. 6
Almost half of California’s children have at least
one immigrant parent.7

On average, immigrants pay $539 more taxes per household than U.S.-born
households (a total of $5.2 billion in state taxes in 2009).8
Immigrants comprise more than one-third of California’s labor force
(34 percent).9
Immigrants contribute 32 percent of the state’s Gross Domestic Product,
particularly in core industries such as farming, fishing, forestry and textile
production.10
Immigrants are more than one and a half times more likely to be selfemployed.11
More than half of California’s 10.3 million immigrants became homeowners
after 18 years of residence in the United States.12

3

GRAPPLING WITH IMMIGRATION TRENDS AND POLICIES
Law enforcement officials, immigration advocates, and regular Californians can agree that our country’s immigration
policy has not kept pace with America’s workforce needs or the family-based factors that draw immigrants to our
nation. The Pew Hispanic Center reported that undocumented workers occupied 9.9 percent of California’s labor
force and 5.4 percent of the nation’s labor force in 2008.13 California is home to about 24 percent of the nation’s
undocumented population—about 2.6 million as of January 2009 according to the Department of Homeland
Security (DHS).14 Yet the opportunities for legal migration are limited: visas to the United States for family
members of naturalized citizens from Mexico and the Philippines, for example, are subject to backlogs of 18 and 17
years respectively.15 Market demands for both low- and highly-skilled immigrant labor often go unmet by current
employment-based visa programs.16
The large population of undocumented immigrants in the U.S.—an estimated 11.8 million in 2007—led President
George W. Bush and the U.S. Chamber of Commerce to support a bipartisan bill that would have combined tough
border and workplace enforcement with a path to citizenship for certain undocumented immigrants.17 The bill
did not pass.
The U.S. Congress’s failure to act added to the
pressure felt by state and local governments to
A LITTLE LEGALESE
address the reality of unauthorized immigration.
A staggering 206 laws related to immigration
were passed in 2008 alone.18 Many of the laws
Unlawful presence in the
were punitive, from limiting drivers’ licenses and
United States is not a crime,
public benefits for undocumented immigrants to
making employers and landlords accountable to
and illegal entry is not a
check for immigration status. Other laws have
felony offense and therefore
been passed to protect undocumented immigrants
from arbitrary enforcement, such as the initiation
cannot form the basis for
of municipal ID card programs in Oakland and
an arrest by state or local
San Francisco.
Perhaps the best-known local attempt to grapple
police after it has been
with immigration was the signing of SB 1070 in
Arizona in the spring of 2010. Over objections
completed. 20
by local law enforcement leaders, Arizona’s SB
1070 mandates the participation of local officers
in federal immigration enforcement.
SB 1070 has been challenged by both civil
rights groups and the federal government and
spurred a heated debate in California over whether
local law enforcement agencies should engage in
immigration enforcement.

“Although illegal immigration has an undeniable impact
on Arizona, requiring local police already strapped for
resources to act as immigration agents is not the answer.”
—Tucson Police Chief Roberto Villaseñor, Arizona Daily Star,  
July 27, 201019
4

THE CRIMINALITY MYTH
Proponents of increased policing of immigrant communities frequently allude to the “illegality” of undocumented
immigrants, confusing unlawful presence with criminality. Take for example the following statements by Fox News
personality Glenn Beck: “Every single illegal immigrant is guilty of a crime, every single one... Every undocumented
worker is an illegal immigrant, a criminal and a drain on our dwindling resources.”21
The reality—and the law—is that unlawful presence in the United States is not a crime. While illegal entry is
a federal misdemeanor, nearly half of our nation’s undocumented immigrants arrived on a valid visa and violate no
criminal laws by overstaying.22 Many of California’s undocumented residents were brought to the United States as
young children. They are not responsible for the decision to enter illegally or overstay their visas, and have no other
country they could truly consider home.
Available data also fails to support a nexus between immigrants and criminal activity in the United States. As cities
have experienced increases in immigrant populations, crime rates have fallen. Violent crimes, including homicides,
rape and robbery, dropped by 55 percent and property crimes decreased by 29 percent between 1991 and 2008.23
U.S.-born men are institutionalized for crimes at a rate ten times higher than that of foreign-born men in California.24
These trends are consistent throughout California, even in border regions touted as being the most dangerous. In
fact, El Paso, Texas, with its large immigrant population and close proximity to the border, was recently named the
second safest city with 500,000 or more people in the United States.25
The stereotype of the immigrant as criminal also conflicts with the serious repercussions that criminal detention
and prosecution have for immigrants. The stakes are high for undocumented immigrants who commit crimes.
Criminal convictions, and sometimes just suspicion alone, can lead to their deportation and the loss of jobs,
families, and local investments. For many, deportation also means a return to countries they do not know, whose
language they do not speak, or where they face persecution or death at the hands of a government or groups
that motivated their flight to the United States. Without immigration reform, few, if any, avenues exist to allow
undocumented immigrants to regularize their status and become fully responsible participants in civil society.

FEDERAL FAILURE, LOCAL CHOICES
Given the failure of immigration reform, both localities and federal immigration authorities must make choices
about how to address our large undocumented population. From the federal perspective, it would be logical
to begin by establishing enforcement priorities rather than taking on the unworkable and costly alternative of
deporting millions of people en masse.
In a 2010 memo, U.S. Immigration and Customs Enforcement (“ICE”) director John Morton did just that.
He noted that ICE “only has resources to remove approximately 400,000 aliens per year, less than four percent of
the estimated illegal alien population in the United States.”26 Morton’s memo described ICE’s highest enforcement
priority as arresting and removing noncitizens “who pose a danger to national security or a risk to public safety.”
“Recent illegal entrants” and persons who have already been ordered deported were listed as the next two priorities,
respectively.27 However, statistics reveal a failure to follow these priorities. Between 2008 and 2010, of all those deported
nationwide under a new DHS program called “Secure Communities” (S-Comm), only 28 percent were convicted of
crimes under ICE’s “Level 1 Priority” group and 25 percent were “non-criminals.”28
While some local law enforcement officials seek to help ICE deport all immigrants, regardless of ICE’s stated
enforcement priorities, others refuse to play any role in immigration enforcement, citing public safety and resource
concerns.
Given that at least 50 percent of California residents are Asian or Latino and 9.9 million are foreign-born,
police and sheriff ’s departments that participate in federal immigration enforcement risk isolating large portions
of the population through unlawful racial profiling. Determining a person’s immigration status is “indisputably
complex,” and officers who are not trained as immigration agents all too often rely on skin color, foreign-sounding
accents, or other unlawful and unreliable predictors of immigration status to make unnecessary stops and arrests in
the hopes of identifying undocumented immigrants.29

5

IMMIGRATION ENFORCEMENT: A FEDERAL RESPONSIBILITY
States and localities are generally preempted from engaging in civil immigration enforcement, but Congress
has carved out limited exceptions. The Criminal Alien Program (CAP) allows ICE to identify and apprehend
immigrants in state and county detention facilities. Section 287(g), added to the Immigration and Nationality Act
in 1995, creates an opportunity for local agencies to train with and be certified by ICE to enforce immigration
laws on the streets and in the jails.31 The program has been harshly criticized as leading to racial profiling and other
constitutional violations by participating LLEAs. In March 2010, the U.S. Office of the Inspector General audited
the 287(g) program. The Inspector General noted widespread problems and recommended that ICE establish data
collection and reporting requirements to address civil rights concerns.32
Local law enforcement agencies across the country have heavily criticized ICE for entangling them in the dirty
business of immigration enforcement and in some cases rescinded agreements with ICE that implemented the 287(g)
program. Only 71 out of 17,876 state and local law enforcement agencies in the fifty United States participate in
the program, despite the fact that ICE’s funding related to 287(g) has grown from $5 million to $68 million over
the last 4 years.33
There are no 287(g) agreements in northern California. Federal law prohibits state and local police from enforcing
civil immigration violations without such an agreement, and state law prohibits LLEAs from arresting individuals
for civil immigration violations like unauthorized presence. LLEAs nevertheless experience considerable pressure
from ICE to assist in civil immigration enforcement, and local law enforcement practices are severely impacted by
the legal limbo in which so many community members live.

This tendency toward racial profiling is supported by statistics: the Chief Justice Earl Warren Institute
on Race, Ethnicity and Diversity at Berkeley Law School found that immediately after the initiation of a
local immigration screening program at the Irving, Texas jail, officers in the field began to arrest Hispanics
for low-level offenses at increased rates. 30 Even with intensive training, officers can still make critical
mistakes that lead to the deportation of wrongfully targeted individuals, as in the case of Peter (Pedro)
Guzman, a U.S. citizen who was wrongfully deported through the Los Angeles Sheriff ’s Department’s
collaboration with ICE.
Collaboration between ICE and LLEAs undermines both federal immigration and local criminal
enforcement priorities. Practices by LLEAs such as sharing information and joining operations with ICE,
enabling ICE access to jails or checkpoints, stops for the purpose of investigating drivers’ licenses, and
arrests for citable infractions, indirectly result in the deportation of individuals who pose no threat to
public safety. Since 2008, ICE has deported 30,000 immigrants stopped by LLEAs for common traffic
violations.34
Many local law enforcement leaders call for federal immigration reform as they push back against pressures
to engage in immigration enforcement. Los Angeles Police Department’s (LAPD) ex-Chief William J.
Bratton explained, “Americans want a solution to our immigration dilemma, as do law enforcement officials
across this nation. But the solution isn’t turning every local police department into an arm of Immigration
and Customs Enforcement.”35 Bratton agrees with an April 2009 Police Foundation report conclusion that
“to optimize public safety, the federal government must enact comprehensive immigration reform.”36 Many
California county and city ordinances and resolutions as well as LLEAs’ internal policies, like those in San
Francisco, Santa Clara, Richmond, Berkeley, and Oakland, call for fair and humane immigration reform
and instruct officers to refrain from spending local resources to enforce civil immigration laws. 37
6

Peter Guzman and his mother,
Maria

Carbajal. Peter,

a

U.S.

citizen with cognitive limitations,
was

mistakenly

identified

deportable immigrant
Angeles

County

as  a

by

Sheriff

Los
and

federal ICE personnel pursuant to a
287(g) agreement. The government
then wrongfully deported him to
Mexico where he wandered for
months and barely survived given
his

mental

limitations.

Following

his deportation and his mother’s
months-long

search

for

him

in

Mexico, Peter filed a  civil rights
lawsuit for damages against the
Los Angeles Sheriff’s Department
and ICE and won a favorable
settlement.

“We need to remember that there are at least 12 million people
out there who are unauthorized to be in this country, and
they’re our neighbors. ... We need to start putting faces and
names to these 12 million people because this is not an issue
where you can deport people away. It doesn’t solve the issue.”
—Sacramento Police Chief Rick Braziel 38

7

COSTS ASSOCIATED WITH local policing of
immigrant communities
financial COSTS
Local law enforcement agencies engage in policing of immigrant communities mostly on their own dime. The
Major Cities Chiefs Police Association (MCC) explained that “[s]ince the creation of the Homeland Security
Department, federal funding for major city police departments has been greatly reduced.” “Local communities and
agencies have even fewer resources to devote to such an effort than the federal government given all the numerous
other demands on local police departments.”39 MCC asserts that “[e]nforcement of federal immigration laws would
be a burden that most major police agencies would not be able to bear under current resource levels.”40
Meanwhile, many LLEAs continue to suffer budget cuts and decreases in officer hours and staffed positions. The
International Police Chiefs Association (IACP) wrote in 2007 that more than 76 percent of all police agencies in
the United States had twenty-five or fewer sworn officers for populations of up to 25,000.41 With a statewide $25.4
billion budget deficit, LLEAs are cutting staff and sometimes shutting down.42 In the City of Oakland, where crime
rates are among the highest in the country, the Police Department laid off 80 officers, almost a 10 percent cut in
its workforce, in July 2010.43
Even the many LLEAs in northern California who claim not to engage in immigration enforcement incur costs
through policy choices that incidentally assist in the identification and detention of individuals believed—sometimes
wrongly—to be illegally present. One key to these costs is the immigration detainer, or “hold,” which ICE issues to
LLEAs to request that the jail maintain custody of certain detainees beyond when they would otherwise be released
from local custody—solely for civil immigration enforcement purposes. The existence of the detainer relationship
also impacts policing decisions in the field, making some patrol officers more likely to arrest a person believed to
be undocumented. The costs associated with incidental immigration enforcement include patrol resources and
overtime associated with stopping, arresting, and booking individuals who are targeted based on their immigrant
appearance or who lack state-issued identification. Finally, counties incur extended detention costs—including
food and medical services—for arrestees whose detention is extended for the purpose of immigration enforcement,
all without federal reimbursement.44
ICE provides limited reimbursement only for immigrant detainees who have been convicted of one felony or two
misdemeanor offenses and who are held for at least 4 consecutive days.45 Therefore, available reimbursements do
not cover the actual costs of holding pre-conviction immigration detainees. In Sacramento County, screening and
arraignment, including pretrial jail booking and incarceration, averaged $1,948 per arrestee in 2005 and 2006.46
Santa Rita Jail in Alameda County estimates a cost of approximately $100 per day to hold inmates and charges $250
for booking individuals in its facilities.47 While localities expect to cover these hefty costs for most of their inmates,
agencies that choose to respond to ICE detainers for inmates not convicted of a felony (or two misdemeanors) must
bear the additional cost.

“My officers can’t prevent or solve crimes if victims or witnesses are
unwilling to talk to us because of the fear of being deported. . . When
officers can speak freely with victims and witnesses, it goes a long way
toward making every American neighborhood much safer.”48
—Ex-Chief William Bratton, Los Angeles Police Department

8

CASE IN POINT: DOMESTIC VIOlENCE SURVIVORS
During a party, Veronica had a serious argument with her brother when he refused to let her leave a
party with her daughter. Veronica called the police and waited outside for officers to arrive. The police
questioned Veronica briefly and then arrested her. The officers would not tell her why they were arresting
her. At the jail, they fingerprinted and held her for 3 hours. A fingerprint check indicated that she had
legal status in the U.S. and no charges were pressed. Veronica says that she would never call the police
again, even if she were in an accident.
Hun, a Japanese national, called 911 for help after one of many physical altercations with her husband.
When the police arrived, Hun could not speak English and defend herself when her husband accused her
of instigating the fight. The police arrested Hun and turned her information over to ICE. While Hun was
in ICE custody, her one-year-old daughter was placed in foster care.

“Since the creation of the U Visa . . . my office has been successful in
prosecuting many violent criminals with the cooperation of undocumented
immigrant victims who had the courage to come forward and assist in the
detection, investigation or prosecution of these crimes.”
—Kamala Harris, then-District Attorney of San Francisco, in a letter dated
October 23, 2007 to U.S. Citizenship and Immigration Services.59

PUBLIC SAFETY COSTS
Public safety suffers when local police and sheriffs isolate the immigrant community.49 IACP warns that “law
enforcement simply cannot function adequately without the support and cooperation of the populations it serves.
An adequate law enforcement outreach and response to prevent fear, crime and disorder requires cooperation
and understanding of all.”50 Community policing models that depend on fostering relationships of trust between
immigrant groups and law enforcement agencies, are undercut by the underreporting of crimes by immigrant
victims and witnesses who fear their interactions with police officers may lead to deportation.51 Mayor Phil
Gordon of Phoenix, Arizona, connects Maricopa County’s investment in immigration enforcement to its failure to
investigate crimes and the corresponding increase in the county’s crime rates.52 Gordon’s jurisdiction, which limits
involvement with ICE, has achieved a decrease in crime rates.53
When immigrant domestic violence victims believe that local officers act as immigration officers, their distrust
and fear destroy relationships developed through community policing efforts. When the victim of a crime is arrested
with the perpetrator and ends up in immigration proceedings, community members learn from the incident and
think twice before making a call to the police.
Congress understood the important role undocumented victims and witnesses play in crime fighting. The Violence
Against Women Act of 1994 and the Victims of Trafficking and Violence Protection Act of 2000 created visa
programs, including the U Visa, for such victims in order to “strengthen the ability of law enforcement agencies to
detect, investigate and prosecute cases of [crimes] while offering protection to victims.”54 The FBI predicted that
these programs would increase the apprehension of violent criminals, reduce recidivism crimes, and save police
resources.55 Many LLEAs also understand the role that these visa programs play in their own ability to fight crime56,
and support victims by certifying to the U.S. Citizenship and Immigration Services that they cooperated in the
investigation or prosecution of a crime.57 But, even incidental local immigration enforcement creates a climate of
fear for immigrant communities that thwarts the intent of such programs.58
9

LOCAL LIABILITY
Local immigration enforcement may lead to abuses of power, corruption, and extortion, and incite anti-immigrant
prejudice and discrimination among officers. When individuals fear deportation of themselves or household
members, they are less likely to complain about an officer’s misconduct, leaving such cases unchecked.60 The
Warren Institute found that shortly after the initiation of CAP in Irving, Texas, Latino arrests for petty offenses
began a “steady upward trend” and that CAP “tacitly encourage[d] local police to arrest Hispanics for petty
offenses.”61 In the city of Maywood in Southern California, then-Attorney General Jerry Brown found evidence of
police abuse and unlawful conduct by Maywood police officers, including stopping drivers without probable cause
and impounding their vehicles in violation of the law.62 In Sonoma County, the Sheriff ’s Department has faced
litigation since 2008 for working with ICE to arrest and detain individuals without a criminal basis and solely on
the suspicion of undocumented status.

A Sample of Cases Against Local Agencies for Actions Related to
Immigration Enforcement
Barrera v. Boughton, U.S. District Court, Connecticut, 2010, challenging joint operation between police and ICE
targeting Latino day laborers.
Cerrillo v. Buck, Colorado Supreme Court, 2009, challenging county deputies’ search and seizure of tax preparer’s
records in relation to investigation targeting undocumented immigrants for potential violations of state identity
theft or criminal impersonation laws.
Committee for Immigrant Rights of Sonoma County et al. v. County of Sonoma et al., U.S. District Court,
Northern District of California, 2008, challenging sheriff department’s joint operations with ICE for racial
profiling, Fourth Amendment violations, and detainer violations.
Daniel T. v. Bd. of County Commissioners of Otero, U.S. District Court, New Mexico, 2007, challenging sheriff ’s
department raids of Latino homes for immigration enforcement purposes.
Melendez Rivas v. Martin, U.S. District Court, Northern District of Indiana, 2010, challenging county’s failure to
release young mother from custody more than 48 hours after beginning of immigration detainer period.
Santos v. Jenkins, U.S. District Court, Maryland, 2009, challenging discriminatory arrest by county deputies for
immigration enforcement purposes.
Villegas v. Metro. Gov’t of Davidson County/Nashville, U.S. District Court, Middle District of Tennessee, 2009,
challenging county deputies’ immigration-based detention and shackling of pregnant woman after arrest for driving
without a license.

10

LEGAL LIMITS AND AVOIDABLE COSTS:
From Traffic Stops to Jail Budgets

T

he ongoing failure of the federal government to reform the immigration system has put pressure on LLEAs to
examine their enforcement priorities in light of their need to conserve resources and maintain relationships
with vulnerable communities. This section provides legal background and police practices proposals for each point of
contact officers have with members of the public, from the beginning of a traffic or pedestrian stop through booking
and detention. Many of these proposals are already reflected in the policies of police and sheriff’s departments in
northern California, and all are supported by the goal of targeting limited law enforcement resources to public
safety goals.

Efrain’s story
Efrain,

a

twenty-

year-old
national,

Mexican
came

to

the United States as
a young boy with
his family. He works
with

his

father

a

mechanic

is

finishing

as
and

courses

to get his GED. His
family had applied
for U Visas (available
under federal law for
crime victims) after
suffering

a

violent

incident.
One afternoon Efrain
and his father drove
to a friend’s house
to pick up a car part
they needed that day. As Efrain pulled out of his friend’s driveway, a police car turned around and began to follow
them closely, pulling them over after a mile. When Efrain parked the car, the officer rushed to Efrain’s window with his
gun drawn. The officer handcuffed and searched Efrain and asked him for his license. Efrain explained that he did not
have a license and had left his ID at home. When six more officers arrived as back-up, Efrain overheard the arresting
officer tell the others he had stopped Efrain for driving without a license. Although Efrain’s sister and husband arrived
to identify Efrain as their family member and offered to get his ID only 2 blocks away, the officer refused. Efrain was
arrested, booked, and eventually released after receiving citations for driving without a license, having an “obstructed
view,” and damaged registration tags.

11

STOPS AND ARRESTS: Unnecessary, Sometimes Unlawful
Patrol officers have discretion to stop cars for a wide range of traffic infractions and suspected criminal conduct.
California’s state law prohibiting undocumented immigrants from obtaining drivers’ licenses adds to the burden
on LLEAs and has led to many discretionary arrests of safe, but unlicensed, drivers. By limiting stops that do not
further local priorities, departments can conserve public safety resources and minimize their participation in civil
immigration enforcement—a burden that should not be borne by local commuities.
Sometimes, as with Efrain, the most plausible explanation for a stop is that the driver or passengers “look” undocumented
and may therefore be unlicensed.63 Immigrant community members regularly report being targeted for minor mechanical
violations such as having items hanging from their rearview mirrors or burnt out license plate lights.64
California’s choice, since 2003, to require proof of legal residency on driver’s license applications means that
even drivers who are licensed in other states or countries cannot obtain a valid state driver’s license. Individuals
continue to drive out of necessity to go about their daily lives—attending school, going to work, and caring for their
families—particularly in areas with poor or non-existent public transportation. LLEAs are burdened with enforcing
traffic laws without a local solution to the driver’s license issue.
Police practices that target people for “driving while undocumented” raise serious concerns about racial profiling and
other constitutional violations. Traffic and pedestrian stops for minor mechanical matters (or for the unstated purpose of
investigating immigration status) are unnecessary and costly, and undermine community policing efforts. Even greater
resources are expended when people are arrested instead of cited, based on a lack of state-issued identification.

THE LAW—Unlicensed Driving
While driving without a license is a violation of state law, the California Vehicle Code prohibits officers from
stopping a vehicle “for the sole reason of determining whether the driver is properly licensed.”65 The Vehicle Code
also provides that “a peace officer may not detain or arrest a person solely on the belief that the person is an
unlicensed driver, unless the officer has reasonable cause to believe the person driving is under the age of 16 years.” 66

 PROPOSAL FOR LOCAL ACTION: Create Enforcement Priorities
•	

Limit stops for minor mechanical violations unless there are also moving violations or reasonable suspicion of
criminal activity.

•	

Adopt a policy against questioning individuals in the field about their origin, immigration status, or citizenship.

•	

Train officers that California law prohibits stops for the purpose of verifying that a driver is licensed except
when there is reason to believe the driver is under 16 years of age.67

Personal opinion and political positions on immigration differ widely among individual officers, and LLEAs must
provide clear training and procedures to ensure uniform application of department policies. LLEAs should monitor
compliance with enforcement priority policies by tracking indicators including the name of the arresting officer, the
place of the stop or arrest, the stated reason for the stop, the violation charged or ticketed, the race of arrestee, and
the disposition of charge to ensure the uniform application of its priorities and guidelies.

“Without effective enforcement priorities, discretionary arrests for citable
infractions or other pretextual reasons will continue to divert taxpayers’
money from programs that would effectively provide for public safety.”
—Retired Sacramento Police Chief Art Venegas68
12

THE LAW—To Arrest or Not to Arrest?
The California Supreme Court noted in 1972 that the Vehicle Code “presumes that in the vast majority of cases the
violator will not be taken into custody.”69 With limited exceptions, Vehicle Code violations are infractions for which
an officer must issue a citation and release a person, rather than make a custodial arrest.70
While the majority of Vehicle Code violations should result in a ticket rather than an arrest, another provision of the
Vehicle Code allows officers to arrest individuals for citable offenses when the person does not present a driver’s license or
other “satisfactory” evidence of identity.71 Officers may use any reliable information—including eyewitness testimony—
to verify a driver’s identity for purposes of issuing a citation.72

 PROPOSAL FOR LOCAL ACTION: Verify Identity Through Available Evidence
•	

Expand the definition of “satisfactory evidence of identity” to include foreign and out-of-state identity documents;
school, employer, and business membership cards; municipal ID, library, or other local government-issued cards; and
testimony of witnesses.

•	

Prohibit the use of a foreign identity document as proof or evidence of an individual’s immigration or citizenship
status for other departmental purposes.

Any documents bearing a photograph and/or physical description of the person, a signature, a current mailing
address, and/or a serial number should be included as possible sources of identity evidence. A utility bill, car
registration, insurance card, and other documents with the individual’s name and address can confirm the accuracy
of less traditional ID cards. Only when the officer doubts the veracity of such alternative forms of identification,
or discovers evidence of fraud, should an arrest take place to verify identity.73 Officers can and should use an
individual’s thumbprint on the infraction as proof that he or she will appear at a hearing within 10 days of the
infraction or notice to avoid arrest in the field.74

COSTS AND CONSEQUENCES
Our proposals for action—follow law enforcement priorities and verify identification to avoid unnecessary or
unlawful arrests—would have had a clear impact on Efrain’s situation. Here’s how:

$ Budgetary Costs
•	

The initial stop for suspected unlicensed driving was improper under Vehicle Code Section 14607.6 and would have
been avoided with clear local law enforcement priorities. Cost: (7 officers x 1 hour) $222.04.

•	

Efrain was booked and jailed needlessly after the improper stop, and after officer’s failure to use available evidence to
verify identity. Cost: (Booking costs ($250) + per diem jail costs ($88)) $338.

•	

Total savings if no stop had been made: (7 officers x 1 hour ($222.04) + booking costs ($250) + per diem jail costs
($88)) $560.04.

•	

Total cost to cite and release: (1 officer x 30 minutes) $15.86.

•	

Total savings if cited and released: ($560.04 – $15.86) $544.18.

 Human Consequences
•	

Precious public safety resources were squandered. Without the initial stop, the six officers called for back-up
would have been free to pursue actual threats to public safety or to investigate criminal activity.

•	

This and similar incidents reinforce immigrant community members’ fear and distrust of local police,
jeopardizing the effectiveness of local law enforcement agencies.
13

Case Study: Limiting Costs in Sacramento County

S

acramento County law enforcement agencies have responded wisely to recent budget constraints, tightening
enforcement priorities by arresting fewer individuals for citable infractions. Since January 2002 driving
without a license, a citable infraction listed under California Vehicle Code Section 12500 (“VC 12500”), has
been the second most frequent citable offense leading to the arrest of Latinos since January 2002. These arrests
have averaged 480 arrests per year and resulted in more than 160 immigration holds since January 2002.
In the last couple of years, arrests for unlicensed driving have dropped significantly. Sacramento County
Sheriff ’s Office reported that only 185 individuals were booked in its jail when arrested primarily for a VC
12500 violation between January and November 2010. The county’s notable decrease of VC 12500 arrests from
an average of 503 per year between 2002 and 2009 saved the county and its tax payers over $168,000. Citing
and releasing all VC 12500 violations in 2010 would have saved the County an additional $95,000.
In the past year alone, 40 immigration holds were placed on individuals arrested primarily for VC 12500
violations. These immigration holds, based on an average 3-day period after local charges were dismissed,
increased costs to the County by nearly $11,000 in 2010, and by an average of $5,000 per year between 2002
and 2009.

VC 12500 Arrests

Cite and
Release:

Stop and
arrest:

Officer Salary *

$15.86

$190.32

Booking costs **

$0

$250

Jail costs (est.)***

$0

$88 / day

Total

$15.86

$528.32

Primary Arrest Violations for VC 12500
Jan 2002 - Nov 2010

* Sacramento County Sheriff’s Office Deputy Sheriff hourly rate
of $31.72, Sacramento County Dept. of Personnel Services.
** Estimate provided by Alameda County Santa Rita Jail.
*** Office of Inspector General, Sacramento County Jail
Staffing Study, June 22, 2010

COSTS
Driving Without a
License Arrests
(Jan - Nov)

14

Actual:
Arrests for
2010
(185 arrests)

Yearly Average:
Arrests for
2002 - 2009
(503 arrests)

SAVINGS
Actual:
Arrests 2010
(318 fewer
arrests)

Unrealized:
Cite and
Release for 2010
(185 arrests)

Officer Salary

$35,209.20

$95,730.96

$60,521.76

$32,275.10

Booking costs (est.)

$46,250

$125,750.00

$79,500.00

$46,250

Jail costs (est.)

$16,280

$44,264.00

$27,984

$16,280

Sub-total

$97,739.20

$265,744.96

$168,005.76

$94,805.10

Immigration Holds

$10,560.00

$5,359.20

unknown

$10,560.00

TOTAL

$108,299.20 $271,104.16

$178,565.76

$105,365.10

VEHICLE CHECKPOINTS AND FORFEITURES: Human Costs
and Company Profits
CHECKPOINTS
Vehicle checkpoints have taken on new meaning for California’s immigrant communities, which increasingly
report the presence of ICE agents, car impoundments for sober drivers stemming from drivers’ license checks,
and the seemingly strategic location of “sobriety” checkpoints in immigrant communities, near churches and
community events.

eber’s story
Driving home late one night, Eber approached a sobriety checkpoint. The officer motioned for the car in
front of him to keep moving and then motioned for Eber to stop and roll down his window. The officer asked
Eber for his license and registration. In return, Eber asked whether the officer thought he was driving under the
influence. The officer told Eber that although he did not appear to be impaired he still needed to show his
license.
When Eber refused, citing his
constitutional right to be free
from

unreasonable

searches

and seizures, a second officer
told Eber, “You don’t have any
constitutional rights here.” The
officers ordered Eber to pull
off to a secondary inspection
area, where they again asked
him for his license and also
opened Eber’s car door. Afraid
of what might happen next,
Eber stepped out of the car and
gave the officers his license.
The officers placed Eber in
handcuffs and searched his car
and trunk without his consent.
When Eber objected to this
improper search, the officers
arrested him and kept him at
the county jail for four hours.
A naturalized U.S. citizen with
no criminal history, Eber was
charged
crimes

with
of

misdemeanor

resisting

arrest,

interfering with an officer, and
obstructing officer duty.

15

In February 2010, reporter Ryan Gabrielson of California Watch, a project of the Center for Investigative Reporting,
conducted extensive data gathering about checkpoints in a number of California counties and concluded:
•	

Sobriety checkpoints frequently screen traffic within, or near, Hispanic neighborhoods. Cities where
Hispanics represent a majority of the population are seizing cars at three times the rate of cities with small
minority populations.

•	

In 2009, officers impounded more than 24,000 cars and trucks at checkpoints. That total is roughly seven
times higher than the 3,200 drunk driving arrests at roadway operations. The percentage of vehicle seizures
has increased 53 percent statewide compared to 2007.

•	

Departments frequently overstaff checkpoints with officers, many of whom earn overtime. The Moreno
Valley Police Department in Riverside County averaged 38 officers at each operation last year, six times
more than federal guidelines recommend. Nearly 50 other local police and sheriff’s departments averaged
20 or more officers per checkpoint—operations that averaged three DUI arrests a night. 

•	

Police do not typically seize the cars of motorists arrested for drunken driving, meaning the owners can
retrieve their vehicles the next day, according to law enforcement officials.

•	

California has more than doubled its use of sobriety checkpoints in the past three years.

•	

In 2009, towing fees and police fines generated an estimated $40 million in revenue that cities divided with
towing companies.75

“Sobriety checkpoints in California are increasingly turning into
profitable operations for local police departments that are far more likely
to seize cars from unlicensed motorists than catch drunken drivers.”
—Ryan Gabrielson, California Watch,  
February 13, 201076

THE LAW—Constitutional Limits on Checkpoints
State and local law enforcement agencies are permitted and funded to perform vehicle checkpoints specifically
to enforce driving-under-the-influence (“DUI”) laws. Under U.S. and California Supreme Court cases however,
the stop and seizure of individuals and their vehicles at sobriety checkpoints must be limited to only a reasonable
intrusion on individuals’ liberty, and checkpoints may not be valid if their primary purpose is something other than
protecting highway safety.77
Investigating a crime or the immigration status of drivers are not permissible purposes for vehicle checkpoints. An
officer may question the driver and passengers as long as it does not prolong the stop beyond the intended purpose of
the checkpoint.78 As noted in the previous section, California law prohibits peace officers from stopping vehicles for the
sole purpose of determining whether a driver is licensed.79 Given statistics that suggest checking for licenses is a primary
aspect of what are touted as DUI checkpoints, a good number of checkpoints may be on shaky legal ground.

16

 PROPOSAL FOR LOCAL ACTION: Target Dangerous Drivers
LLEAs should opt out of conducting sobriety checkpoints. While well-publicized checkpoints can have a deterrent
effect,80 they also subject individuals to detention without individualized suspicion of illegal activity.
LLEAs that continue to use sobriety checkpoints should follow guidelines supported by state and federal case law
and the California Office of Traffic Safety:
•	

Supervising officers must plan and approve a designated checkpoint with a neutral pattern for stopping vehicles so
that a particular class or group is not disproportionately targeted.81

•	

Checkpoints should occur at night, in areas where drunk driving is more likely to take place, and where the
checkpoint is highly visible for approaching drivers without causing significant intrusion to drivers on the highway.82
LLEAs must post advance notice of the checkpoint and may not detain drivers who safely turn away to avoid a
checkpoint.83

•	

The California Highway Patrol recommends only 30 seconds for the initial stop.84 Only if the officer finds signs of
impairment should the officer ask the driver to pull into a secondary screening zone where the officer can request a
driver’s license, registration, and proof of insurance.85

•	

Only in the near vicinity of an international border can Border Patrol officers conduct fixed immigration
checkpoints.86

•	

To best implement these policies, LLEAs should provide language assistance to limited English proficient (LEP)
individuals they encounter at checkpoints when necessary.

17

Chronicles of Vehicle Confiscations
The young Garcia family, upon starting their two-hour journey home after a long day at work and school, were
stopped by a local police officer for a broken license plate light. The officer found that the driver did not have a valid
driver’s license and ordered the vehicle impounded. The driver offered to leave the van parked safely on the side of
the road or to call someone to pick it up. The officer refused. The family gathered its belongings—baby seats, tools from
work, and groceries—and piled them on the side of the road. The family’s two young boys wrapped themselves in the
blanket to shield themselves from the 45-degree night air. When they asked the officer to help them get home, he said
it was not his problem and left them on the side of the road.
Luis was driving with his daughter, a disabled adult, in a specially modified mini-van. The van was towed when he could
not produce a driver’s license. The officers did not offer assistance, and the father was forced to carry his daughter
down a busy road.
José and Maribel had just parked in front of their home when an officer approached the driver’s window. The officer
told the driver he had driven through the stop sign at the corner in front of the home and asked for a driver’s license.
When Jose failed to produce a license, the officer ordered a thirty-day impound of the vehicle, despite the fact that it
was parked in a safe place.
The fees for the impoundment amounted to almost $2,000. This was more than the value of the car and more than José
or his family could afford. Although the tow company promptly auctioned the vehicle, claiming most of the profit, the
company continues to harass José by repeatedly attempting to recover the $500 impoundment fee.

18

VEHICLE IMPOUNDMENT
Several California law enforcement leaders have recently reformed their impoundment policies in light of the
administrative burden to their departments as well as the practical burden on individuals and families. San Jose
and Berkeley police chiefs decided to limit 30-day impoundments to unlicensed drivers with prior serious driving
convictions with the purpose of “balanc[ing] safety and a reasonable level of law enforcement.” 87 These law
enforcement leaders understand that many cannot afford to pay the towing and impoundment fees, leading to a
virtual forfeiture of their vehicles. Berkeley City Manager Phil Kamlarz said in a memo to city staff that “[t]his
policy will prevent those who simply cannot get a driver’s license, in many cases due to their immigration status,
from having their vehicles impounded …” 88 Other departments allow drivers to park the vehicle in a safe place, to
call a validly licensed driver to take the car from the place of the stop or the tow lot, or to instruct the tow company
to tow the car to the owner’ home.89

THE LAW—Legal Limits on Vehicle Impoundment
Officers have some discretion to impound a vehicle when its driver is unable or unauthorized to drive it away.
However, there are several limits to that discretion that are frequently disregarded by LLEAs in northern California.
Under the U.S. Constitution’s “community caretaking” doctrine, officers may impound a vehicle only where 1) the
vehicle presents a traffic or public safety concern, and 2) the driver cannot lawfully operate the vehicle to move it
to a safe location.90 The need to deter a driver’s unlawful conduct is by itself insufficient to justify a tow under the
Fourth Amendment’s protection against unreasonable seizures.
Despite its broad use, California’s mandatory 30-day impoundment provision targets only the most dangerous
drivers: those who have had their licenses suspended or revoked and persons who have never been issued a license.
Under the California Vehicle Code, the term “driver’s license” includes licenses issued by California and other state
or foreign jurisdictions.91 A 30-day impoundment is improper if the driver was ever issued a driver’s license (and the
license was not revoked or suspended) by any jurisdiction.92

“I… felt people were being treated unduly harshly for minor traffic
offenses . . . . If someone has never been arrested, but got stopped and
lost their car for a month, I felt that was harsh, and did not make our
city any safer.”

93

—Berkeley Police Chief Michael Meehan

19

 PROPOSAL FOR LOCAL ACTION: GUIDELINES FOR FAIRNESS IN SECURING
VEHICLES
Adopt policies that minimize the unjust and disproportionate impact on certain members of the community:
•	

Give drivers an opportunity to secure the vehicle in a safe place or to relinquish the vehicle to a licensed driver already
on the scene or one who can arrive in a reasonable period of time before initiating a tow.94

•	

Permit drivers the opportunity to direct a vehicle’s tow to the owner’s home or other safe location, rather than an
impoundment lot.95

•	

30-day impoundments should be limited to cases in which the driver has never been issued a driver’s license in any
state or country, or is being arrested for driving with a suspended or revoked license, has been convicted of serious
driving violations, and is the owner of the vehicle. 96

•	

As required by the Vehicle Code, provide notice of a tow hearing that offers a fair opportunity to present mitigating
circumstances to an impartial magistrate in the language the owner speaks and understands.97

•	

Waive or significantly reduce fees if the owner demonstrates financial hardship or significant impact on the owner’s
household.98

COSTS AND CONSEQUENCES
LLEAs receive grants to conduct sobriety checkpoints, but targeting safe drivers who are not impaired comes with a
price—both in terms of limited law enforcement dollars, and in disruptions to the daily life of a community.

$ Budgetary Costs
•	

Sobriety checkpoints operation. Cost: About $12,000.99

•	

Unnecessary secondary screening after Eber showed no signs of impairment. Cost: (2 officers x 1 hour) $63.44.

•	

Unnecessary arrest based on Eber’s objection to searches of his vehicle and after satisfactory evidence of identity was
provided. Cost: (Booking costs ($250) + per diem jail costs ($88)) $338.

 Human Consequences
While impounding vehicles can be a money-making enterprise for private tow companies and local jurisdictions, the
costs to individuals and communities at large are immense.

20

•	

Search and arrest of Eber was unnecessary and violated his Fourth Amendment right to be free from unreasonable
searches and seizures.

•	

Officers’ dismissal of Eber’s constitutional rights, as conveyed by the statement “you have no rights here,” came at
significant cost to Eber’s dignity and sense of belonging in his new country of citizenship.

•	

Precious public safety resources were squandered.

•	

Families and individuals face up to $2,500 in fees to the city and the tow lot to retrieve their vehicle.100 Without the
money to pay the costs, they forfeit their vehicle.

•	

Families and individuals are left on open highways without safe transportation home.

•	

Parents and young children are forced to face the impossible task of finding transportation in a rural area to take them
to school and work. In case of an emergency, they are left stranded.

•	

These and similar incidents reinforce immigrant community members’ fear and distrust of local police, jeopardizing
the effectiveness of local law enforcement agencies.

Costly Jail Practices – Identifying and Housing
Federal Detainees
Routine processing and housing of arrestees in jail cost state and local governments significant resources and money.
Booking costs alone, for example, are about $250 per detainee.101 But even on top of the costs necessary to a county’s
own law enforcement work, many jails take on additional and unnecessary costs to enforce civil immigration laws.
The key to incidental immigration enforcement is the immigration detainer or “hold”—a form ICE sends to a
local jail to request that the jail continue to hold detainees for up to four or five days after they would otherwise
be released. With limited exceptions, the prolonged detention is on the county’s own dime, and many LLEAs
mistakenly believe that detainers are mandatory. There are several points in the jail booking and detention process
in which jail practices create opportunities for ICE to issue immigration detainers. In this section, we review several
opportunities to minimize the issuance of detainers. We also urge LLEAs to limit their acceptance of detainers as
appropriate to further local public safety concerns and safeguard their limited resources.

Step by Step Booking Process
1.	 O
 nce arrested on a criminal charge or traffic infraction, the arrestee is taken to
a jail or booking station.
2.	 J ail personnel must identify, fingerprint, and search the arrestee, check for any
pressing medical conditions, and provide any needed care.
3.	 T
 he officer either releases the arrestee with a citation or holds him or her for
further investigation and/or probable cause hearing.
4.	 D
 etainees must be read their rights and given the opportunity to call family to
arrange for the care of children, to access an attorney and their consulate, and
to arrange their finances and post bail, if available.
5.	 B
 ooking and jail officers may check for gang affiliation, prior criminal history
and prior stays in the jail to make housing determinations for the safety of the
jail staff and inmates.
6.	 Language assistance is provided for non-English speaking arrestees.

21

UNNECESSARY BOOKING QUESTIONS
According to research and interviews conducted by the ACLU, most jails’ booking processes include a question
about the arrestee’s country of birth. Many LLEAs report that the purpose of this question is to allow officials
to comply with their duties under the Vienna Convention, an international treaty that assures foreign nationals
access to their consulates when they are arrested in the United States.102 In practice, many LLEAs also turn over the
names of foreign-born arrestees to ICE, leading to the issuance of immigration detainers. The benevolent intention
of the treaty turns into a double-edged sword. On the one hand, it helps foreign nationals receive the guidance
and protection of their consular officials; on the other, it exposes arrestees to civil immigration enforcement
and increases detention costs if an immigration detainer is issued and accepted by the jail. Forced disclosure of
citizenship information can also lead to human rights concerns outside the scope of the Vienna Convention, such
as indefinite detention in immigration custody or retaliation against persons seeking asylum from their home
countries.

THE LAW—Consular Notification
Under the Vienna Convention, related treaties, and state law, LLEAs’ obligation begins once the arresting officer
has knowledge of the arrestee’s nationality. Before that point, the arresting officer is under no binding obligation to
perform the terms of the convention or inquire into an arrestee’s nationality.103

 PROPOSAL FOR LOCAL ACTION: Provide Notice of Consular Rights to
All Inmates
•	

Alert arrestees of their right to consular access without affirmatively inquiring into their immigration status.

Notice of arrestees’ consular rights can be given briefly, succinctly, and with little disruption to current arrest and
booking procedures by posting a form notice in intake and booking areas and a statement in the booking process
for all arrestees that foreign nationals have the right to contact their consulates. LLEAs should assist individuals to
contact their consulates upon request and may document their compliance with the Vienna Convention through an
acknowledgment form that each inmate signs.104

22

ICE ACCESS TO LOCAL ARRESTEES
Through a variety of ICE programs, as well as informal arrangements, many jails allow ICE agents special access to
inmate information, which allows ICE to expand its reach into local communities and target individuals outside
federal immigration enforcement priorities. Many jurisdictions that do not participate in formal programs, like the
287(g) and CAP programs discussed above, nevertheless allow ICE agents to keep a desk at the jail, review booking
records of persons identified as foreign born, and interview inmates for the purpose of determining whether to
issue an immigration detainer. Sometimes ICE agents do not identify themselves to inmates or provide notice of
the arrestee’s right to remain silent. In the coercive environment of a jail, inmates often share information that is
later used against them in immigration proceedings. ICE agents in the jail sometimes pressure immigrant inmates
to waive their constitutional right to a hearing prior to removal from the United States.

THE LAW—Sharing Information with ICE
California Health and Safety Code Section 11369 requires LLEAs to notify DHS when officers reasonably believe
that an individual arrested for any of fourteen specified drug offenses is not a U.S. citizen. But neither state nor
federal law requires that LLEAs affirmatively inquire into an arrestee’s immigration status or nationality. Penal
Code Section 834b, which would have required immigration inquiries and reporting by LLEAs, is preempted by
federal law and has been struck down by the courts.105 And while two federal statutes restrict any government entity
or official from prohibiting the sharing of information regarding “citizenship or immigration status” with ICE or
other agencies, cities and counties have successfully 1) limited their own gathering of immigration status-related
information and 2) limited the use of public funds to assist in immigration enforcement, all to the benefit of public
safety and community policing practices.106

 PROPOSAL FOR LOCAL ACTION: Limit ICE Access to Inmates and Jail
Records
•	

Do not provide ICE access to inmate records reflecting surnames, race or ethnicity, language abilities, or place
of birth.

•	

In the event ICE agents seek access to inmates, the jail personnel will first:
o	 Notify the inmate that the officer seeking access is an immigration agent, and that anything the inmate
says can be used against him in immigration or other proceedings;
o	 Inform the inmate that she or he may decline to participate in the interview; and
o	 Secure the inmate’s written consent to participate in the interview with the ICE agent.

23

FEDERAL INTERFERENCE WITH LOCAL PUBLIC SAFETY: ICE’s “SECURE”
COMMUNITIES PROGRAM

Perla’s story
On

a

Highway

Friday
Patrol

evening,
officers

California
stopped

22-year-old naturalized U.S. citizen and
university student, Perla, for making an
incomplete stop. The officers asked
where she was born and then arrested
her for driving under the influence of
alcohol. At the county jail, officers
fingerprinted Perla, took a blood
alcohol test, and told her she would
be released in a few hours.
However, after a few hours, Perla was
informed she could not be released
due to an “ICE hold.” Perla’s sister
presented Perla’s U.S. passport to the
jail officials two times that weekend,
but the officers refused to release her.
Finally, Perla’s sister spoke to an ICE
officer Monday afternoon who said
that the new DHS fingerprinting system
showed her status as “pending.” Upon
presentation of Perla’s passport to the
ICE officer, Perla was released—nearly
three days after she would have been
released from the traffic-related arrest.
The Department of Motor Vehicles
returned her license a few weeks later
indicating that she had been driving
within the legal blood-alcohol limit.

In a growing number of jurisdictions, the DHS program “Secure Communities” (S-Comm), now provides ICE
access to the fingerprints of every person booked into jail. Normal jail background checks through the California
Department of Justice now lead to fingerprint searches through DHS’s Automated Biometric Identification System,
which contains records from visa and asylum applications and other contacts individuals may have had with the
immigration system. Based on the result, ICE decides whether to issue a detainer. Despite Congressional intent
to target the “most serious criminal aliens,” the program’s dragnet resulted in the arrest and deportation of 19,109
individuals in the first year of its implementation in California, 25 percent of whom were never convicted of any
offense.107 Errors in the database lead to detainers being issued for U.S. citizens, lawful permanent residents, and
others who, like Perla, may unjustly be forced to spend days in jail at the county’s expense.108
24

I think Secure Communities is like gill netting.  
Gill netting is when you throw a big net into the ocean
that is looking for a certain type of fish but you pick up
everything with it.
—San Francisco Sheriff Mike Hennessey.109

Since October 2008, ICE has been rolling out S-Comm throughout the United States through Memoranda of
Agreements (“MOA”) signed mostly with state governments. Despite language in the cover letter to California’s
MOA stating that local jurisdictions would sign “statements of interest” prior to participating, ICE has flip-flopped
on whether localities have a say. In some states, ICE has gone so far as to initiate the program without agreement
from the state.110 Concerned about the program’s threat to community policing, San Francisco and Santa Clara
County both sought to withdraw from participation. Apparently dismissive of local law enforcement leaders’
expertise in assessing how their participation in immigration enforcement would impact local public safety needs,
DHS Secretary Janet Napolitano announced in a press conference on October 2010 that the program does not
require the cooperation of state or local agencies and that localities could not opt out of the program.111

IMMIGRATION DETAINERS
Based on information gathered through S-Comm, a jail’s booking records, or contact from a LLEA, ICE may issue
an immigration detainer (Form I-247). The form indicates that the basis for the detainer may be that ICE is simply
initiating an “investigation” of the individual for possible immigration violations.
As in the case of Perla and others held without criminal convictions in California, taxpayers are responsible for
officers’ salaries and other costs of detention related to the hold. Federal reimbursement for detention of immigrants
is provided under the State Criminal Alien Assistance Program for undocumented immigrants who 1) are detained
for four or more consecutive days, and 2) who have been convicted of a felony or two misdemeanors.112 No federal
funding is available to pay for prolonged detention based on immigration detainers at the arrest stage. In
fact, California Penal Code Section 4005, which allows jails to hold federal detainees only with compensation
from the federal government, may prohibit local jails from accepting these immigration detainers without federal
reimbursement.113 LLEAs have also incurred costs in litigation for failing to release individuals after the detainer
period has ended. 114
In December 2010, San Miguel County, New Mexico, changed its detainer policy to only honor detainers where
federal reimbursement is available. In January of this year, Taos County, New Mexico, adopted policies prohibiting
inquiry into national origin or facilitating telephone interviews between ICE and inmates. Nor will the county
honor detainers for inmates for whom the county will not receive federal reimbursement.115 Santa Clara County in
California is considering similar limitations.

25

THE LAW – Immigration Detainers
Under the federal regulation governing detainers, the LLEA may detain an individual for a period of time not to
exceed forty-eight hours (excluding weekends and holidays) after the individual would otherwise be released from
criminal custody.116 While the Immigration and Nationality Act authorizes ICE’s use of immigration detainers
in cases where controlled substance violators are held by a LLEA, ICE frequently issues detainers for suspected
noncitizens who are charged with offenses not included in the Act, including minor traffic violations.117
In August 2010, ICE Director John Morton issued a policy clarification that detainers “shall not” be issued
“unless an LEA has exercised its independent authority to arrest the alien.” 118 Morton also clarified that immigration
detainers are only “requests,” as did a letter from David Venturella, Director of S-Comm.119 These statements have
helped to make clear that LLEAs’ have discretion not to hold arrestees beyond the time that they would otherwise
be released from local custody —a subject of confusion for years due to mandatory language found in the I-247
form itself.120

 PROPOSAL FOR LOCAL ACTION: Exercise Discretion
•	

Consider enforcement priorities and resources in light of federal guidance that detainers are voluntary at the local level.

•	

Counties can adopt a range of options such as:
o	 Hold individuals pursuant to detainers only when federal reimbursement is available; or
o	 Hold individuals pursuant to detainers only when there is probable cause to believe the arrestee has committed a
serious and violent crime or the person has been convicted of a serious crime in the last five years.

•	

Monitor the amount of time an individual is held and strictly adhere to time limitations for immigration holds.

•	

Release individuals held on detainers if LLEA receives evidence of U.S. citizenship.

•	

Provide information about the limits and significance of immigration detainers to those for whom ICE issues a
detainer, including an opportunity to contest the detainer.

COSTS AND CONSEQUENCES
$ Budgetary Costs
•	

Officer should have cited and released Perla for the stated reason for the stop (stopping too close to a pedestrian
walkway). Cost: (1 officer x 30 minutes) $15.86.

•	

Unnecessary arrest, presumably related to inappropriate question regarding country of origin: Cost: (Booking Cost
($250) + 2 officers x 3 hours ($190.32) + per diem jail costs ($264)) $704.32.

•	

Officers should have released Perla once satisfactory evidence of her U.S. citizenship was provided by her U.S.
passport. Cost: (per diem jail cost ($88) for 2 extra days in jail) $176.

 Human Consequences

26

•	

Precious public safety resources were squandered.

•	

Perla spent three days in jail based on mistaken assumptions about her immigration status, severely impacting her
dignity and sense of belonging in her new country of citizenship.

•	

This and similar incidents reinforce immigrant community members’ fear and distrust of local police, jeopardizing
the effectiveness of local law enforcement agencies.

CONCLUSION

C

ountless decisions in the daily operations of a police or sheriff ’s department can result in costs associated
with incidental immigration enforcement. Critically, these decisions build on one another. Detainer practices
and immigration screening programs in jails incentivize racial profiling and arrests for citable offenses in the field.
Addressing any part of these police-community interactions can significantly affect LLEA costs and budgets. Even
more important, by focusing on local priorities, LLEAs can wisely use resources to fight crime with the help and
cooperation of all the communities they seek to protect.
Many cities and counties in northern California and beyond have recognized the social and fiscal costs borne by
community members and LLEAs due to our nation’s failure to reform the immigration system. They have adopted
policies and practices limiting officers from inquiring into immigration status, impounding vehicles, and holding
individuals on federal immigration detainers without reimbursement. These policies preserve public safety resources
for real crime fighting, and they reflect the following understanding, shared by law enforcement leaders throughout
the country: when immigrant community members feel safe reporting crime, local police and sheriffs will be more
effective, and this makes all of us safer.

27

ENDNOTES
1	Also confirmed in a telephone interview with John Lovell, Lobbyist, California Police Chiefs Association on January 18, 2011. Mr. Lovell
provided the following range in booking costs: Sonoma County Jail $400; Santa Rita Jail $250; and Butte County Jail $50.
2	Los Angeles Police Department Sobriety Checkpoint Mini-Grant Program for 2010-2011, Office of Traffic Safety, University of California
Berkeley, Nov. 18, 2010, http://www.lapdpolicecom.lacity.org/120710/BPC_10-0458.pdf.
3	An immigration hold that begins on a Thursday, Friday, Saturday, or Sunday would likely result in a four-day hold, but a hold that begins
Monday, Tuesday, or Wednesday would likely result in a two-day hold.
4	
New Americans in the Golden State, Immigration Policy Center, July 2010, http://www.immigrationpolicy.org/just-facts/new-americansgolden-state.
5	Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Estimates of the Unauthorized Population Residing in the United States: January 2009,
Department of Homeland Security, 3-4, January 2010, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.
6	
Looking Forward: Immigrant Contributions to the Golden State, California Immigrant Policy Center, 2, http://www.caimmigrant.org/
publications.html.
7	

Ibid.

8	

Ibid., at 3.

9	

Ibid.

10	

Ibid.

11	

Ibid.

12	Dowell Myers and John Pitkin, Assimilation Today: New Evidence Shows the Latest Immigrants to America are Following in Our History’s
Footsteps, Center for American Progress, 6, Sept. 1, 2010, http://www.americanprogress.org/issues/2010/09/immigration_assimilation.
html.
13	D’Vera Cohn and Jeffrey S. Passel, The Portrait of Unauthorized Immigrants in the United States, Pew Hispanic Center, i, 30, April 14,
2009, http://pewhispanic.org/files/reports/107.pdf#page=40.
14	Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Estimates of the Unauthorized Population Residing in the United States: January 2009,
Department of Homeland Security, 3-4, Jan. 2010, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.
15	U.S. Department of State, Visa Bulletin for February 2011, http://travel.state.gov/visa/bulletin/bulletin_5228.html. (Reviewed 1st “family
category” for Mexico and the Philippines).
16	Manuel Quinones, “Farmers Demand Immigration Reform,” Public Radio International, Mar. 16, 2010, http://www.pri.org/politicssociety/farmers-demand-immigration-reform1912.html.
17	“Times Topics: Immigration and Emigration,” The New York Times. Jan. 5, 2011 (updated), http://topics.nytimes.com/top/reference/
timestopics/subjects/i/immigration-and-emigration/index.html.
18	

Ibid.

19	
“Local Angle,” Arizona Daily Star, July 27, 2010, http://azstarnet.com/news/local/border/article_983b584e-aff7-51ca-91b07bfba4b63d07.html.
20	
Gates v. Superior Court, 193 Cal.App.3d 205, 215-16 (1987); California Penal Code, Section 836 (authorizing peace officers to make
warrantless arrests for “public offenses” committed in their presence or when they have probable cause that the person has committed a
felony outside of their presence).
21	“Fear and Loathing in Prime Time: Immigrant Myths and Cable News,” Media Matters Action Network, May 12, 2008, http://
mediamattersaction.org/reports/fearandloathing/online_version#23 (citing Glenn Beck’s broadcasts on Fox News on January 12 and
November 8, 2007).
22	United States Codes, Title 8, Section 1325; Modes of Entry for the Unauthorized Migrant Population, Pew Hispanic Center, May 22, 2006,
http://pewhispanic.org/factsheets/factsheet.php?FactsheetID=19.
23	Barry Krisberg, Where is the Fire? Immigrants and Crime in California, Berkeley Center for Criminal Justice, 4, Oct. 1, 2010, http://www.
law.berkeley.edu/files/Where_is_the_fire.pdf.
24	Public Policy Institute of California, Just the Facts: Immigrants And Crime, June 2008, http://www.ppic.org/content/pubs/jtf/JTF_
ImmigrantsCrimeJTF.pdf. (“Among men ages 18 - 40, the foreign born have an institutionalization rate of 420 per 100,000 in the
population, compared to 4,200 per 100,000 for the native born”).
25	Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation, 11, Apr.
2009, http://www.policefoundation.org/strikingabalance/strikingabalance.html (hereinafter “Police Foundation Report”); see also Morgan
Quitno Awards, 13th Annual America’s Safest (and most Dangerous) Cities, http://www.morganquitno.com/cit07pop.htm.

28

26	Memorandum from John Morton on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens
Interim Policy Memorandum, Policy Number: 10072.1, U.S. Immigration and Customs Enforcement, June 2010 (signed by Assistant
Secretary John Morton).
27	 Ibid.
28	

 .S. Immigration and Customs Enforcement, Secure Communities IDENT/IAFIS Interoperability Monthly Statistics through August
U
31, 2010, 5, Sept. 7, 2010, http://www.ice.gov/doclib/foia/secure_communities/nationwideinteroperabilitystatsaug10.pdf. Secure
Communities is a fingerprinting system implemented in the jails during booking.

29 	New Americans in the Golden State, Immigration Policy Center, July 2010, http://www.immigrationpolicy.org/just-facts/new-americansgolden-state; Looking Forward: Immigrant Contributions to the Golden State, California Immigrant Policy Center, 2, http://www.
caimmigrant.org/publications.html; Amici Brief of Hispanic Command Police Officers Association, National Black Police Association and
National Latino Officers’ Association, 24, June 12, 2007 (hereinafter “Amici Brief ”). The brief is in support of plaintiffs in Natl. Council of
La Raza v. Mukasey, Second Circuit, 2008.
30	Trevor Gardner II and Aarti Kohli, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program, Berkeley Law Center for Research
and Administration, 4, Sept. 2009, http://www.law.berkeley.edu/files/policybrief_irving_FINAL.pdf. (hereinafter “CAP Report”) (the
Criminal Alien Program “tacitly encourages local police to arrest Hispanics for petty offenses”).
31	U.S. Immigration and Customs Enforcement, Fact Sheet: Criminal Alien Program, Nov. 19, 2008, http://www.ice.gov/news/library/
factsheets/cap.htm; U.S. Immigration and Customs Enforcement, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration
and Nationality Act, Oct. 29, 2010, http://www.ice.gov/287g/.
32	Department of Homeland Security, Office of the Inspector General, The Performance of 287(g) Agreements, OIG-10-63, March 2010; see
also Department of Homeland Security, Office of the Inspector General, The Performance of 287(g) Agreements Report Update, OIG-10124, October 2010 (calling for continued improvements to provide oversight and review progress toward public safety goals).
33	Brian A. Reaves, Census of State and Local Law Enforcement Agencies, 2004, Bureau of Justice Statistics Bulletin of the U.S. Department of
Justice, June 2007, http://bjs.ojp.usdoj.gov/content/pub/pdf/csllea04.pdf; U.S. Immigration and Customs Enforcement, ICE Fact Sheet:
Updated Facts on ICE’s 287(g) Program, http://www.ice.gov/news/library/factsheets/287g-reform.htm.
34	Julia Preston and Robert Gebeloff, “Some Unlicensed Drivers Risk More Than a Fine,” New York Times, Dec. 9, 2010, http://www.nytimes.
com/2010/12/10/us/10license.html.
35	Ex-Chief Bratton of Los Angeles Police Department refused participation in the 287(g) program, explaining that by “[b]reeding fear and
distrust of authorities among some of our children could increase rates of crime, violence and disorder as those children grow up to become
fearful and distrustful adolescents and adults.” Los Angeles Police Department, Chief Bratton’s Comments on Immigration, http://www.
lapdonline.org/newsroom/content_basic_view/43388.
36	

Ibid.

37	

 esolution Reaffirming San Francisco’s Status as City and County of Refuge…, San Francisco Board of Supervisors, Resolution No. 389R
02, June 3, 2002, http://www.democracyinaction.org/dia/organizationsORG/NILC/images/SanFranciscopdf.pdf; Santa Clara County
Government, County of Santa Clara Affirms Commitment to Public Health and Safety for its Diverse Community, News Release, June 22,
2010, http://www.sccgov.org/portal/site/scc/aspecial?path=%252Fv7%252FSCC%2520Public%2520Portal&contentId=04ce7ffbf916921
0VgnVCM10000048dc4a92____; A Resolution of the Richmond City Council Reaffirming its Support for Comprehensive Immigration Reform
that Is Fair, Just, And Humane, Richmond City Council, Resolution No. 11-07, Feb. 6, 2007, http://www.ci.richmond.ca.us/archives/67/
reso.%2011-07%20Immigration%20Reform.pdf; Reaffirming Berkeley as City of Refuge, Berkeley City Council, Resolution No. 63, 711NS, May 22, 2007, http://www.ci.berkeley.ca.us/citycouncil/resos/2007/63711.pdf.

38	

I mmigration Professor Blog, “Sacramento Police Chief: It’s time to legalize millions of undocumented immigrants who are productive, lawabiding citizens - the public’s safety depends on it,” Oct. 23, 2009,   http://lawprofessors.typepad.com/immigration/2009/10/sacramentopolice-chief-its-time-to-legalize-millions-of-undocumented-immigrants-who-are-productive-.html (quote originally posted in the SacBee on
Oct. 22, 2009).

39	

 ajor Cities Chiefs Immigration Committee Recommendations For Enforcement of Immigration Laws By Local Police Agencies, Major Cities
M
Chiefs, 6, June 2006, http://www.majorcitieschiefs.org/pdf/MCC_Position_Statement.pdf.

40	 Ibid.
41	

I nternational Association of Chiefs of Police, Police Chiefs Guide to Immigration Issues, 23, July 2007, http://www.theiacp.org/
PublicationsGuides/ContentbyTopic/tabid/216/Default.aspx?id=866&v=1 (hereinafter “IACP Report”).

42	

J uliet Williams, “California Budget Deficit Grows To $25.4 Billion,” Huffington Post, Nov. 11, 2010, http://www.huffingtonpost.
com/2010/11/10/california-budget-deficit_n_781848.html; Christopher Palmeri, “California Cities Shutting Police Forces to Close Budget
Gaps,” Bloomberg, June 29, 2010, http://www.bloomberg.com/news/2010-06-29/california-cities-start-shutting-down-police-forces-toclose-budget-gaps.html.

43	

 erry Collins, “Police Layoffs Hit Oakland, One of the Nation’s Most Crime-Ridden Cities.” Christian Science Monitor, July 17 2010,
T
http://www.csmonitor.com/From-the-news-wires/2010/0717/Police-layoffs-hit-Oakland-one-of-the-nation-s-most-crime-ridden-cities.
Oakland Police Department risks losing another 122 officers in 2011.

44	

Police Foundation Report at 27.

29

45	

U.S. Department of Justice, State Criminal Alien Assistance Program (SCAAP), http://www.ojp.usdoj.gov/BJA/grant/scaap.html.

46	Memorandum from the Sacramento County Criminal Justice Cabinet to Sacramento County Board of Supervisors, on Fiscal Year 200910 Proposed Budget Report Back- Impact of Reductions on the Criminal Justice System and Departments, 3, June 3, 2009, http://www.
budget.saccounty.net/coswcms/groups/public/@wcm/@pub/@obdm/@shared/documents/webcontent/sac_019246.pdf.
47	Phone Interview with Garrett O. Holmes, Lieutenant, Alameda County Santa Rita Jail, Jan. 18, 2011 (Santa Rita jail includes into its
booking cost officer’s salary and benefits, service offered to arrested person, transport, IT equipment, and maintenance to building);
interview with John Lovell, Lobbyist, California Police Chiefs Association on January 18, 2011.
48	Los Angeles Police Department, Chief Bratton’s Comments on Immigration, http: //www.lapdonline.org/newsroom/content_basic_
view/43388; William J. Bratton, “The LAPD Fights Crime, Not Illegal Immigration,” L.A. Times, Oct. 27, 2009, http://articles.latimes.
com/2009/oct/27/opinion/oe-bratton27.
49	

Amici Brief at 6.

50	

IACP Report at 24.

51	

Amici Brief at 8-10.

52	

Police Foundation Report, Appendix J, “Conference Keynote Address.”

53	

Ibid.

54	

Violence Against Women Act of 2000, Section 1512(a)(2)(A), http://www.ovw.usdoj.gov/laws/vawo2000/stitle_b.htm#title5.  

55	Federal Bureau of Investigation Law Enforcement Bulletin, The U Visa: An Effective Resource for Law Enforcement, 3, Oct. 2009, http://
www2.fbi.gov/publications/leb/2009/october2009/visa_feature.htm.
56	Agenda Report from the Oakland Police Department and City Attorney to the Office of the City Administrator to report support for the U
Visa program, Jan. 22, 2008. The policy report explained that it expected the U Visa program “to strengthen the ties between the immigrant
community and the police, overcoming the traditional suspicion and distrust of police that immigrants often bring from abroad.”
57	LLEAs do not confer immigration status upon the victim, but rather enable the victim to meet one of the eligibility requirements of the
visa program. U Visa Toolkit for Law Enforcement, Legal Momentum and Vera Institute, 6, Dec. 12, 2010, http://iwp.legalmomentum.
org/reference/additional-materials/immigration/u-visa/tools/police-prosecutors/Law%20Enforcement%20ToolKit%20U-Visa.pdf/
view?searchterm=u%20visa%20toolkit. The Toolkit for LLEAs on the U Visa Program is sponsored by the U.S. Department of Justice.
58	

Police Foundation Report at 25.

59	Attorney General Harris’ letter to U.S. Citizen and Immigration Services, Oct. 23, 2007, http://www.sccgov.org/keyboard/attachments/
Commission%20Agenda/2009/January%2012,%202009/202423983/TMPKeyboard202540668.pdf.
60	Police Foundation Report at 26.
61	

CAP Report at 4.

62	Office of the Attorney General, Brown Directs Maywood to Reform its Police Department after Investigation Uncovers Gross Misconduct, News
Release, Apr. 28, 2009, http://oag.ca.gov/news/press_release?id=1722&y=2009.
63	Elizabeth Ricci, D.W.U: Driving While Undocumented, Voice, American Immigration Lawyers Association, 18, Jan./ Feb. 2011, http://
ailahub.aila.org/issue/22954/18.
64	Isaac Menashe and Deepa Varma, We’re Not Feeling Any Safer: Survey Results Show Negative Impacts from ICE Involvement with Local Police,
California Immigrant Policy Center and Berkeley School of Law, 2, Summer 2010, http://www.caimmigrant.org/enforcement.html.
65	

California Vehicle Code, Section 14607.6(b).

66	

California Vehicle Code, Section 12801.5(e).

67

Ibid.	

68	

Telephone interview with Art Venegas, Retired Chief, Sacramento Police Department (Oct. 22, 2010).

69	 People v. Superior Court, 7 Cal.3d 186, 199 (1972).

30

70	

California Vehicle Code, Sections 40000.1, 40500(a).

71	

 e California Vehicle Code instructs that if an individual is arrested for a traffic offense other than a felony and the person fails to present
Th
satisfactory evidence of their identity, the arrested person should be taken before a magistrate without “unnecessary delay, without going
through a routine booking process.” California Vehicle Code, Section 40302; People v. Superior Court, 7 Cal.3d 186, 209 (1972).

72	

 alifornia Vehicle Code, Section 40302; People v. Monroe, 12 Cal. App. 4th 1174, 1187-88 (1993) (it is within the officer’s discretion to
C
accept written or oral evidence other than a driver’s license to verify a person’s identity).

73	

California Vehicle Code, Section 40302.

74	California Vehicle Code, Section 40303: “The officer may require that the arrested person, if he or she does not have satisfactory
identification, place a [ ] thumbprint… on the 10 days’ notice to appear when a 10 days’ notice is provided. Except for law enforcement
purposes relating to the identity of the arrestee, a person or entity shall not sell, give away, allow the distribution of, include in a database, or
create a database with, this print.” See also California Penal Code, Sections 853.5 and 853.6(i)(1).
75	Ryan Gabrielson, Car seizures at DUI checkpoints prove profitable for cities, raise legal questions, California Watch, Feb. 13, 2010, http://
californiawatch.org/public-safety/car-seizures-dui-checkpoints-prove-profitable-cities-raise-legal-questions.
76	

Ibid.

77	

City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Ingersoll v. Palmer, 43 Cal.3d 1321 (1987).

78	
Ingersoll, 43 Cal.3d at 1346 (With regard to the nature and detention of the stop, the court found that “[i]f the driver does not display
signs of impairment, he or she should be permitted to drive on without further delay”); see also California Highway Patrol Manual, Sobriety/
Driver License Checkpoints, Chapter 8, 4f (7), Dec. 2006 (revised) (hereinafter “CHP Manual”) (“If the driver does not display signs of
impairment, he/she should be permitted to drive without further delay”).
79	

California Vehicle Code, Section 14607.6(b).

80	Jeffrey W. Greene, Battling DUI: A Comparative Analysis of Checkpoints and Saturation Patrols - Driving Under The Influence , The FBI Law
Enforcement Bulletin, Jan. 2003, http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2003-pdfs/jan03leb.pdf.
81	

Ingersoll, 43 Cal.3d 1321.

82	

Ibid., at 1345-46.

83	
Ibid., at 1346; see also California Office of Traffic Safety 2008-09 Sobriety Checkpoint Program: Pre Operational Training, Dec. 2008,
http://www.tsc.berkeley.edu/checkpointminigrants/dec2008/SobrietyCPtrainingVer.2ppt.pdf.
84	

CHP Manual at 8-9.

85	
Ingersoll, 43 Cal. 3d at 1346; See also City of Indianapolis, 531 U.S. at 47 (Stops other than for purposes of detecting impairment should be
limited. The court found that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints such as
here, however, stops can only be justified by some quantum of individualized suspicion.”); United States v. Martinez-Fuerte, 428 U.S. 543,
567 (1976) (reaffirming that “any further detention … must be based on consent or probable cause.” (citation omitted)).
86	

Martinez-Fuerte, 428 U.S. 543.

87	Doug Oakley, “Berkeley won’t impound cars for 30 days,” Berkeley Voice, Nov. 11, 2010, http://www.freerepublic.com/focus/fnews/2625023/posts; Sean Webby, “San Jose to stop 30-day car impounds for unlicensed drivers,” Contra Costa Times, Dec. 9, 2010,
http://www.contracostatimes.com/news/ci_16810561?source=rss&nclick_check=1.
88	

Doug Oakley, “Berkeley Eases Impound Policy,” Berkeley Voice, Nov. 11, 2010.

89	Ryan Gabrielson, Cities turning against 30-day impounds, California Watch, Dec. 13, 2010, http://californiawatch.org/dailyreport/
cities-turning-against-30-day-impounds-7414; See also San Francisco, Richmond, and Fresno vehicle checkpoints and impound policies:
Towing Vehicles Driven by Unlicensed Drivers Effective November 1, 2009 Department Bulletin, Section 09-293, San Francisco Police
Department, Oct. 16, 2009; see also Questions and Answers about Traffic Safety Checkpoints… From Richmond Police Department,
Richmond Police Department; see also Letter from Chief Jerry P. Dyer of Fresno Police Department addressed to “Fresno Residents”
announcing a modification to the current policy stating that “the unlicensed driver’s vehicle may be impounded if the driver has been cited
for the same offense within the last six (6) months,” January 28, 2010.
90	
Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir. 2005). In evaluating whether an impoundment is appropriate for community
caretaking purposes, the officer may use several factors including 1) whether the vehicle obstructs traffic, 2) the type of neighborhood in
which the vehicle is parked, 3) the vicinity of the vehicle to the driver’s home, 4) whether there is a properly licensed individual available
who can lawfully operate the vehicle, and 5) whether the vehicle is likely to be subject to vandalism.
91	The California Vehicle Code defines “driver’s license” as “a valid license to drive the type of motor vehicle or combination of vehicles for
which a person is licensed under this code or by a foreign jurisdiction.”  California Vehicle Code, Section 310 (emphasis added).
92	

California Vehicle Code Section 14602.6.

93	Doug Oakley, “Berkeley Eases Auto Impound Policy,” Contra Costa Times, Nov. 11, 2010, http://www.contracostatimes.com/
ci_16587513?IADID=Search-www.contracostatimes.com-www.contracostatimes.com&nclick_check=1.
94	

See San Francisco, Richmond, and Fresno vehicle checkpoints and impound policies, ibid note 89.

95	

Berkeley Police Department Training and Information Bulletin 235, Oct. 14, 2010.

96	

California Vehicle Code, Section 14602.6; see also Berkeley Police Department Training and Information Bulletin 235, Oct. 14, 2010.

97	

California Vehicle Code, Section 14602.6(b) and 14607.6.

98	 Ibid.
99	“Los Angeles Police Department Sobriety Checkpoint Mini-Grant Program For 2010-2011,” Office of Traffic Safety and Safe
Transportation Research and Education Center, University of California Berkeley, Nov. 18, 2010 (estimating checkpoint costs at $12,000).

31

100	

Doug Oakley, “Berkeley eases auto impound policy,” Nov. 11, 2010, http://www.insidebayarea.com/news/ci_16587514.

101	Phone Interview with Garrett O. Holmes, Lieutenant, Alameda County Santa Rita Jail, Jan. 18, 2011. Santa Rita jail includes into its
booking cost officer’s salary and benefits, service offered to arrested person, transport, IT equipment, and maintenance to building.
102	Vienna Convention on Consular Relations and Optional Protocol on Disputes, Nov. 12, 1969, United States Treaty, 21 U.S.T. 77;
California Penal Code, Section 834(c) (codifying treaty requirements).
103	

Ibid.; see also Washington Defenders Association Immigration Project, Practice Advisory on the Vienna Convention, http://www.
defensenet.org/immigration-project/immigration-resources/Immigration%20-%20Vienna%20Convention.pdf.

104	Sample notice and acknowledgement forms are available from the ACLU of Northern California and the Washington Defender
Association’s Immigration Project in Seattle, Washington.
105	

League of United Latin American Citizens v. Wilson, 997 F.Supp. 1244 (C.D. Cal. 1997).

106	
Sturgeon v. Bratton, 174 Cal.App.4th 1407 (2009); San Francisco City of Refuge Ordinance, San Francisco Administrative Code, Chapter
12H.
107	U.S. Immigration and Customs Enforcement, Secure Communities IDENT/IAFIS Interoperability Monthly Statistics through August 31,
2010, 5, Sept. 7, 2010, http://www.ice.gov/doclib/foia/secure_communities/nationwideinteroperabilitystatsaug10.pdf.
108	Five percent of the persons identified through S-Comm in the first year were U.S. citizens. U.S. Immigration and Customs Enforcement,
Secure Communities IDENT/IAFIS Interoperability Monthly Statistics through November 30, 2009, 1, Dec. 9, 2010, http://www.ice.gov/
doclib/foia/secure_communities/nationwideinteroperabilitystatsnov09.pdf.
109	Rina Palta, “Who enforces immigration laws in San Francisco?,” KALW News, Nov. 15, 2010 http://www.sfgate.com/cgi-bin/blogs/kalw/
detail?entry_id=77105 (citing to Mike Hennessey’s quote on News21 live radio show).
110	In a letter to Santa Clara County Counsel, Secure Communities’ Assistant Director David Venturella instructed the County to “formally
notify its state identification bureau and ICE in writing by email, letter or facsimile” if it did not wish to activate the program; see also
Immigration and Customs Enforcement, Secure Communities Weekly Executive Report, Dec. 15-19, 2008, http://immigrationimpact.
com/upload/docs/Secure%20Communities.pdf.
111	

Janet Napolitano, Secretary of the Department of Homeland Security, Press Conference, Oct. 6, 2010.

112	Department of Homeland Security, Office of the Inspector General, The Performance of 287(g) Agreements, OIG-10-63, March 2010; see
also Department of Homeland Security, Office of the Inspector General, The Performance of 287(g) Agreements Report Update, OIG-10-124,
October 2010 (calling for continued improvements to oversight and review of progress toward public safety goals).
113	The California Supreme Court recently held that a sheriff’s transfer of custody to ICE pursuant to a detainer was appropriate as a matter of
“comity,” and did not address the issue of reimbursement. People v. Jacinto, 49 Cal. 4th 263, 348 (2010). A previous opinion explained that
“comity” allows jails to hold federal detainees pursuant to contracts for compensation. Los Angeles County v. Cline, 185 Cal. 299, 302 (Cal.
1921).
114	
Quezada v. Mink, Case No. 10-CV-00879, (D.Colo), (No. 10-CV-00879). Committee for Immigrant Rights of Sonoma County et al. v.
County of Sonoma et al., Case No. CV-08-4220 (N.D. Cal.) is another case challenging a jail’s misuse of immigration detainers.
115	

Copies of the San Miguel and Taos County policies available through the ACLU of Northern California.

116	

8 C.F.R. § 287.7.

117	

8 U.S.C. § 1357(d).

118	Memorandum from John Morton on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens
Interim Policy Memorandum, Policy Number: 10072.1, U.S. Immigration and Customs Enforcement, June 2010 (signed by Assistant
Secretary John Morton).
119	Letter to Santa Clara County Counsel office from David Venturella, Secure Communities Assistant Director, Department of Homeland
Security.
120	Immigration Detainer Form I-247. (Sample at http://www.defensenet.org/immigration-project/immigration-resources/immigrationdetainers-and-ice-enforcement-actions/Sample%20Immigration%20Detainer%20Form%20I-247.pdf/view).

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