Mirkarimi Says Law Prevented Advance Notice of Felon's Release

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A memorial for Kate Steinle on San Francisco's Pier 14, where she was fatally shot on July 1. (Susan Cohen/KQED)

Update, 3 p.m. Friday

In a morning press conference, San Francisco Sheriff Ross Mirkarimi again defended his department against criticism that it did not inform immigration authorities before the April 15 release of Juan Francisco Lopez-Sanchez, who has been charged with murder in the July 1 shooting death of Kathryn Steinle.

U.S. Immigration and Customs Enforcement had requested that the Sheriff's Department detain Sanchez so he could be deported. But keeping with city policy, the department ignored the request.

Mirkarimi today prefaced his remarks by saying, "I find it incredibly sad and incomprehensible that this tragedy is being used as a platform for political gain."


Both Mayor Ed Lee and Sen. Dianne Feinstein have called out the Sheriff's Department for not notifying ICE that Sanchez, with multiple drug felonies and deportations on his record, would be released from jail. Lee was especially critical in his Wednesday appearance on KQED Forum, making comments like the following:

You know, the ordinary thing is to look at who had hands on this felon, this repeated serious felony violator, last. And I'm trying to understand the whole picture, from the feds to the local. But I do happen to agree with Senator Feinstein that you look at who had that last responsibility. It was our sheriff. ... And when the feds released this person to us, there could have been a notification that we're about to release a repeat serious felony offender, who is not legally here. It's a phone call, Michael, and I think the sheriff dropped the ball there.

Later, Lee said: " So, I want to keep this simple for the public that when you vote in public officials and the highest law enforcement officials, they have a duty to balance these things. And, you know, I think a simple phone call would have done the trick."

Mirkarimi is up for re-election in November. He and Lee have been at odds since the mayor -- unsuccessfully -- tried to have Mirkarimi removed from office in 2012 after the sheriff pleaded guilty to a misdemeanor charge of false imprisonment related to an incident with his wife.

In defending his department against the notion that it should have informed ICE of Sanchez's release, Mirkarimi again pointed to San Francisco's Due Process for All Ordinance (which he has repeatedly mentioned by tacking on: "Passed by the Board of Supervisors and signed by the mayor.") Mirkarimi said:

“The mayor ‘s throwing his own law under the bus, simply trying to walk away or run away from the very ordinance he signed into effect. Because if in fact that he’s looking for some ambiguity in the law in order to cover his position, then it really defeats the whole purpose of the law in the first place."

Sheriff’s Department employees shouldn’t have to determine when and how much to cooperate with ICE in connection with detainer requests, which have been ruled unconstitutional by federal courts, Mirkarimi said.

The Due Process ordinance does not address giving ICE advance notice of a release. But Mirkarimi said, "If you look very clearly In the declarative sense of the law, of what the intention is ... then [critics] are asking us to use a subjective barometer that would then eventually conflict with the constitutional concerns that motivated the birth of the law in the first place."

He said Sanchez’s record of convictions for nonviolent drug offenses and re-entering the country illegally did not “meet the threshold of the local law that would require us to pick up the phone  or use our discretion."

When asked how many detainers from ICE the Sheriff’s Department had honored, Mirkarimi said none.

Regarding the issue of why Sanchez was transferred from federal prison to San Francisco on a 20-year-old bench warrant, subsequently dismissed, Mirkarimi said his department had no discretion but to bring him back to the city.

“A bench  warrant is different from a district attorney warrant,” he said. "We can intervene (with) the San Francisco district attorney. On a bench warrant, we cannot. That’s the magistrate.”

Mirkarimi again laid blame on the federal government for Sanchez’s return, saying that if ICE wanted to deport him, it should have obtained a warrant or court order, which unlike detainer requests would have had the force of law,.

ICE, which has said the tragedy could have been prevented if local authorities had notified it of Sanchez’s release, has said “the whole system would collapse” should it have to obtain judicial orders for every deportation.

If that is an inconvenience, Mirkarimi said, “then it’s inconvenient for us to be testing the erosion of the Constitution. And that's part of the inherent conflict that needs to be reconciled and has been well explained to leadership of ICE. “

Update, 2 p.m. Thursday

The San Francisco Sheriff's Department said it had no choice but to request and arrange for the transfer to its custody of Juan Francisco Lopez-Sanchez, who has been charged with murder in the July 1 shooting of Kathryn Steinle on Pier 14 near the Ferry Building.

In fact, sheriff's officials insist they were "obligated" to do so.

Freya Horne, chief legal counsel for the department, said in an email that the Sheriff's Department warrant bureau was contacted on March 21 by the Bureau of Federal Prisons about an outstanding 1995 felony warrant issued by the court for possession-for-sale and sale of marijuana.

"The Sheriff’s Department responded as is required protocol with a routine letter to arrange for pickup of Lopez-Sanchez from federal custody to transport him to court in San Francisco on the outstanding warrant," Horne wrote. "The Sheriff’s Department arranged for Lopez-Sanchez’s transportation and he was booked into San Francisco County Jail on March 26, 2015. He went to court on March 27, 2015 and the court dismissed the charges."

Horne noted that the warrant had been on the books two decades, and yet this was the first time the Sheriff’s Department was contacted about it despite the fact Sanchez had been deported directly from federal custody several times in that 20-year period without any contact to clear the  warrant.

The letter from the Sheriff's Department can be seen at the bottom of this post.

A separate statement by San Francisco Sheriff Ross Mirkarimi asked: "Why now do the Feds call SF to satisfy the bench warrant when they could have released him to ICE for deportation proceedings as they had done numerous times before? Why not call the DA or Magistrate to obviate the transfer since SF rarely prosecutes for marijuana possession and sale?

By law, once we are contacted -- and the Feds contacted SF first -- SF Sheriff is obligated to arrange transportation for the outstanding bench warrant, which we did."

It conluded: "ICE violated their own policy - federal authorities should have proceeded directly with deportation as they had done several times previously."

Update, 9:30 a.m. Thursday:

There is a new twist in the relentless finger-pointing and he-said/she-said exchanges over who's to blame for the fatal July 1 shooting of Kathryn Steinle on San Francisco's Pier 14.

According to the San Francisco Chronicle, suspect Juan Francisco Lopez-Sanchez -- an undocumented immigrant with a string of drug felonies and five deportations -- ended up in the city in March because the San Francisco Sheriff's Department asked Bureau of Prisons officials to return him after he'd finished serving a 46-month prison term in Victorville for illegal re-entry to the United States.

The request (read below) by the sheriff's office was allegedly made to resolve a $20 marijuana case that was quickly dismissed.

The revelation contradicts statements that Sheriff Ross Mirkarimi made on KQED's Forum on Tuesday morning, in which he said: “We’re trying to understand why ICE returned Sanchez to San Francisco on a 20-year-old marijuana possession charge in a city that really doesn’t even prosecute marijuana possession … and knowing that he had been deported and illegally entered the country." (It was actually the Bureau of Prisons  that transferred Sanchez, not ICE.)

However, according to the Chronicle:

Mirkarimi’s agency requested custody of Juan Francisco Lopez-Sanchez as he was completing a 46-month stint in federal prison in March in San Bernardino County, according to a Sheriff’s Department letter obtained by The Chronicle. Lopez-Sanchez had been deported five times to Mexico and had been imprisoned for illegally re-entering the U.S.

The federal Bureau of Prisons alerted the Sheriff’s Department in March that Lopez-Sanchez was going to be released. Mirkarimi’s agency, realizing that Lopez-Sanchez was wanted on a $5,000 bench warrant related to a 1995 marijuana possession-for-sale case, asked prison officials March 23 to hold him and to notify San Francisco authorities “when the subject is ready for our pick-up.”

“Also, please notify us if the hold cannot be placed or the named subject is released to another jurisdiction prior to our receipt,” said the letter, signed by Vic Gaerlan of the sheriff’s warrant bureau.

Also, more details have emerged about the gun, which belonged to a Bureau of Land Management agent, that was used in the killing of Steinle. BLM spokeswoman Dana Wilson told KQED's Alex Emslie:

“The weapon was stolen in downtown San Francisco on June 27. The officer was traveling through San Francisco when his vehicle was broken into and the theft occurred. He immediately reported that to the San Francisco Police Department, in addition to following our internal protocols and informing the National Crime Information Center.”

Update, 12:20 p.m. Wednesday: 

The Associated Press reports that the U.S. Bureau of Land Management said one of its agents' service guns was used in the shooting death of a woman walking on a popular San Francisco pier.

BLM spokeswoman Dana Wilson said Wednesday that the weapon was issued to an agency ranger and was stolen from the agent's car while he was in San Francisco on business.

Juan Francisco Lopez-Sanchez, who has been deported to his native Mexico five times and is suspected of living in the United States illegally, told television news stations that he found the gun on Pier 14 and that it accidentally fired.

Meanwhile, the Matier & Ross column in today's San Francisco Chronicle said one pivotal question hasn't been completely answered yet: "Why didn't the feds deport Sanchez when they had the chance?"

Records show that Lopez-Sanchez had spent 46 months in federal lockup in Victorville (San Bernardino County) for entering the country illegally, then was returned to San Francisco by the federal Bureau of Prisons in March to clear an outstanding felony drug warrant dating from two decades ago.

However, federal immigration officials had already managed to deport Lopez-Sanchez five times since that warrant was issued, apparently without ever having sent him to San Francisco to answer to the drug charge.

A spokesman for the DA's office said the Bureau of Prisons didn't let prosecutors know Sanchez was being sent to San Francisco. A spokeswoman for U.S. Immigration and Customs Enforcement said her agency would have shipped him back to Mexico if the Bureau of Prisons had turned him over, as it had the previous five times. The bureau's spokesman couldn't explain why the 1995 case had never come up before, but said his agency was following standard procedure in sending Sanchez to San Francisco this year.

Also, in the endless blame game that has been a byproduct of the shooting, Mayor Ed Lee, during an appearance on KQED's Forum this morning, once again blasted San Francisco Sheriff Ross Mirkarimi.

"Who had hands on this felon, this repeated serious felon, last? " Lee said. "I do happen to agree with Senator Feinstein that you look at who had the last responsibility. It was our sheriff. "

Update, 6:25 p.m. Tuesday: A source close to the investigation, speaking on condition of anonymity, confirmed to KQED News that the gun Francisco Sanchez used to shoot and kill Kate Steinle belonged to a federal agent. The source could not say how Sanchez obtained the gun or which agency the agent worked for.

Original story:
San Francisco Sheriff Ross Mirkarimi appeared on KQED Forum Tuesday and deflected blame to U.S. Immigration and Customs Enforcement for the release from jail of the man who went on to allegedly shoot and kill 32-year-old Kathryn Steinle in San Francisco last Wednesday.

The suspect, Juan Francisco Lopez-Sanchez -- who has been referred to by several different names within the U.S. criminal justice system, according to the L.A. Times -- pleaded not guilty to murder charges in Superior Court Tuesday.

Sanchez had been released by the Sheriff's Department from San Francisco County Jail on April 15, despite a detainer request from ICE and a long rap sheet, which NBC Bay Area has transcribed. Sanchez's criminal record stretches back to 1991 and includes convictions for heroin possession, manufacturing narcotics and -- in between deportations -- multiple instances of illegally re-entering the United States.

In March, Sanchez -- who is 52, according to the San Francisco DA's Office -- finished serving a federal prison sentence for felony re-entry into the U.S. The Federal Bureau of Prisons then transferred him to the San Francisco County Sheriff’s Department, based on an outstanding arrest warrant from the San Francisco Police Department.

A spokesman for the bureau told KQED that it was the Sheriff's Department that initiated the request to transfer Sanchez to San Francisco. The Sheriff's Department has a different take: It says the BOP initiated the request.

But could the Bureau of Prisons have informed ICE directly that an individual who had just served time for felony re-entry was being released?

"It is not the BOP’s responsibility to tell us," wrote ICE spokeswoman Gillian Christensen. "We lodged the detainer with [the San Francisco Sheriff's Office] -- it was their responsibility to tell us they were cutting him loose."

In any event, the Bureau of Prisons said in an email that an ICE deportation matter would not have taken priority over a local request.

Charges Dismissed March 27

The San Francisco Chronicle reported the charge that brought Sanchez back to San Francisco from prison was related to buying $20 worth of marijuana from police in 1995 and "a separate count of selling more than 28 grams of pot." When he skipped his court appearance, the Chronicle says, a judge issued a bench warrant for his arrest.

Those charges were dismissed on March 27.

ICE, meanwhile, had received notification that Sanchez had been booked into San Francisco custody and had sent a request for an immigration detainer, asking to be notified prior to his release.

ICE has laid blame for Sanchez's unsupervised release squarely on the Sheriff's Department for ignoring its request.

“Bottom line: If the local authorities had merely NOTIFIED ICE (ICE emphasis) that they were about to release this individual into the community," a spokesperson said in an email, "ICE could have taken custody of him and had him removed from the country -- thus preventing this terrible tragedy."

City Ordinance

But Mirkarimi said on Forum that his department ignored the detainer request in accordance with a 2013 city ordinance that specifically states: "A law enforcement official shall not detain an individual on the basis of an immigration detainer after that individual becomes eligible for release from custody."

Exceptions to the policy exist for those individuals who have been convicted of a violent felony within the past seven years and are currently in custody for another violent felony, of which a magistrate has determined there is probable cause of guilt.

Officials who want to hold a prisoner under this exception must also "consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk."

A state law, called the Trust Act, also prohibits local law enforcement from detaining noncitizens past their release date, again with exceptions for those who have committed violent crimes.

And a federal court decision in Oregon last year ruled that ICE's authority to issue detainers was unconstitutional.

Ignoring detainer requests from immigration authorities is not uncommon, apparently. NBC Bay Area reports: "Between January 1, 2014, and June 19, ICE records show there have been 10,516 detainers declined in California and 17,193 detainers declined nationwide."

'This Isn't Like It Was a Surprise'

Mirkarimi said today he met with the Department of Homeland Security in February to reiterate San Francisco's policy of requiring an order or a warrant in order to honor a detainer request.

"This isn’t like it was a surprise," Mirkarimi said. "And what is even more baffling is that here's somebody that ICE essentially has allowed to be brought to San Francisco on a a 20-year-old warrant for a marijuana narcotics charge, which we don’t prosecute. They fail to even enact their own guidelines for the sixth deportation or illegal re-entry potentially of Mr Sanchez. And then they knew from the rap sheet that the case was summarily dismissed by the magistrate here as soon as he arrived."

Forum invited ICE to send a representative to the show, but the agency declined. ICE spokeswoman Virginia Kice  told the Chronicle that obtaining a court order in detainer cases wasn't practical.

“We deported 177,000 people last year,” she said. “The whole system would collapse.”

Passing the Buck?

Joseph Russoniello, former U.S. attorney for the Northern District of California, who appeared on today's show with Mirkarimi, said it would be unusual for a court to issue an order in such cases. Deportations are "not done on the basis of criminal prosecutions," he said. "They're done on the basis of either voluntary removal or deportation orders."

Russoniello said Mirkarimi was trying to pass the buck by blaming ICE. "It sort of suggests no one really wants to take responsibility for what happened here," he said.

He said cities like San Francisco that declare themselves a sanctuary, where officials are prohibited from assisting in immigration enforcement, were enacting bad policy.

Mirkarimi retorted that over 300 municipalities in the U.S. had similar policies of not cooperating with detainer requests.

ICE did say in a statement that it "understands local law enforcement's reticence about this issue."

The agency said a new initiative called the Priority Enforcement Program will support "community policing while ensuring ICE takes custody of dangerous criminals before they are released into the community. "

Alex Emslie, Scott Shafer and Adam Grossberg of KQED News contributed to this report.


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