October 17, 2008
The Honorable Bill Ritter
Office of the Governor
Denver, CO 80203
Dear Governor Ritter:
We are writing to alert you that the City and County of Denver is not in compliance with SB 06-90, enacted by the General Assembly in regular session in 2006 (CRS 29-29-101). We ask that you direct the Department of Local Affairs to cut off state funds to the City and County of Denver as provided in the law.
SB 06-90 does more than prohibit any city from adopting policies which interfere with police communication with the federal Immigration and Customs Enforcement agency (ICE). Section 29-103(2)(b) establishes for peace officers a positive duty to cooperate and communicate with that agency. It requires all cities and political entities to inform their law enforcement personnel of this duty and it requires them to report annually to Legislative Council the number of such reports to ICE made in compliance with the law. These requirements are clearly explained on the DOLA web site (www.state.co.us/gov_dir/leg_dir/lcsstaff/immigration/immigrationmainpage.htm).
Because of Denver’s size and location, the city’s disregard for CRS29-29-101 affects public safety not only in Denver but throughout the region and the entire state. Francis Hernandez was in custody in Denver in 2007 and then was arrested in September 2008 for vehicular manslaughter in Aurora. The thousands of illegal alien criminals who cycle into and out of the Denver jail without ever coming to the attention of ICE often commit serious crimes later in other cities and towns.
Denver claims to be in compliance by merely filing a report and a number --- 2,088 --- purporting to be the number of "reports" made to ICE in 2007. We believe that merely claiming and citing a number of referrals/contacts with ICE does not by itself satisfy the law --- for Denver or any city. First the number cited must meet the "smell test”: if that number is ludicrous and misleading on its face, DOLA and the Legislative Council have a duty to investigate to determine the accuracy of the number. Second, to be in compliance, the number of contacts made with ICE must represent a substantial portion of arrests in which the duty to contact ICE would be applicable. Third, the policies and guidelines behind the numbers must be consistent with the law. Denver's reported
numbers and its Police Department guidelines for peace officers indicate that it has failed all three tests.
Inquiries to the Office of Denver City Attorney revealed that the number of ICE contacts claimed by Denver on its DOLA reporting form --- 2,088 --- is a combination of two other numbers: Denver claims 109 contacts with ICE by the Denver Police Department and
1,979 contacts with ICE by the Denver Sheriff's Department, which operates the jails. We believe neither of the two numbers satisfies the requirements of SB 06-90 for reasons outlined below.
The law as written requires law enforcement personnel to contact ICE when there is probable cause to believe that a person arrested for a criminal offense is in the country unlawfully -- whether the arrested person is taken into custody ("custodial arrest") or not. In fact, CRS 29-29-103(2)(a)(1) explicitly makes a distinction between arrestees "held at a detention facility" and others not held at a facility. The law clearly applies to both kinds of arrests, not merely to arrestees taken to a detention facility.
All available evidence indicates that Denver is not observing the law.
FACT # 1. Denver Police are not making ICE referrals on 99% of routine arrests. This is demonstrated both by official statements and by the low number of ICE contacts ---109 --- made over a full year when encountering over 49,000 arrestees who were booked into the jail and additional thousands who were stopped and cited for crimes not requiring custodial arrest.
FACT # 2. The Denver Sheriff's Department is not using the probable cause standard to refer inmates to ICE. Instead, it merely sends to ICE each day a roster of self-identified foreign-born inmates then in custody at the jail. It is ludicrous and insulting for the Denver Sheriff's Department to say that all foreign born persons by definition meet the probable cause standard in the law, since "foreign born persons" include naturalized citizens, legal permanent residents, tourists and others who are in the country lawfully.
FACT # 3: Denver falsely claims to have made 2,088 referrals to ICE in 2007 whereas the true number is only 109, the number of "refer to immigration" notations on arrest reports. The other 1,979 reported contacts do not meet the “probable cause” standards set in the law. In effect, Denver padded its numbers by a factor of 2000% (109 versus 2,088).
FACT # 4. Denver has not complied with CRS 29-29-103 requiring notification to all peace officers of their duty to notify ICE in any instance where an arrested person meets the probable cause standard. In fact, Denver misinforms its peace officers that the obligation to contact ICE can be met by writing a "refer to immigration" note on the arrest
report. By this instruction, conveyed to its peace officers by a Police Department Training Bulletin dated September 6, 2006, Denver encourages and allows its peace officers to avoid contacting ICE.
FACT # 5. Each year Denver has a much lower percentage of its illegal alien jail population identified for immigration detainers and picked up and deported by ICE than either Arapahoe County or Jefferson County. In 2005 and 2006, Denver was reimbursed
a total of $2,249,339 by the federal State Criminal Alien Assistance Program (SCAAP) for incarcerating over 2,900 illegal aliens, yet only 18% of those illegal aliens were tagged with detainers and subsequently deported by ICE. That compares to 44% for the
Arapahoe County jail and 39% for the Jefferson County jail. This means that the Denver jail is recycling over twice as many illegal alien criminals back into the metro community --- over 2,400 over those two years --- as are neighboring counties. They are not being identified as illegal aliens while they are in custody, which is mainly due to the fact that they are not being referred to ICE in the first place. (SCAAP data for each Colorado county is available on the U.S. Department of Justice website at http://www.ojp.usdoj.gov/BJA/grant/scaap_site.html.)
FACT # 6. Denver did not change its policies or police procedures in any way to comply with the law after it was enacted in 2006. It merely reiterated and repromulgated existing policies found in the Denver Police Operations Manual. Denver has not offered any guidance to peace officers as to what behavior and circumstances meet the probable cause standard with regard to unlawful presence.
A September 2008 report by the Maricopa County (AZ) Attorney Andrew Thomas revealed that 22% of all persons convicted of felonies in that county in 2007 were illegal aliens. (See www.mcaodocuments.com/press/20081002_a-whitepaper.pdf.) If DOLA and the State of Colorado accept Denver's ICE referral numbers as reflecting a good faith effort at compliance, we would have to conclude that less than 1% of all felony arrestees in Denver in 2007 were illegal aliens. This can be true only if Denver has a crime rate among illegal aliens one-twentieth that of Phoenix.
Even if the percentage of crimes committed by illegal aliens in Denver is only half the rate in Phoenix --- 11% instead of 22% --- we would expect to have over 5,300 arrests of illegal aliens -- 11% of 49,746 total arrests in 2007 (15,580 felony arrests and 34,166 misdemeanors). Yet, acting under the policies and guidelines set by the City Attorney's office, Denver police referred only 109 arrested individuals to ICE over the course of a full year. The other 1,979 "referrals" by the Sheriff's staff at the jail were merely self-identified foreign-born persons, a category that does not meet the probable cause standard set forth in SB-06-90.
Denver has failed to make a good faith effort to implement CRS 29-29-101. Denver police are not subjecting most arrested persons to the test set forth in the law--- neither the persons arrested during routine police work nor the persons booked into jail.
In light of these facts, the appropriate penalty should be applied to Denver:
"A local government that violates Section 1 or Section [29-29-103(2)(b)] ...shall not be eligible to receive local government financial assistance through grants administered by the Department of Local Affairs...."
You should direct DOLA to immediately cut off all grants and financial assistance that passes through that agency. In fact, arguably Denver owes the state treasury and Colorado taxpayers a full reimbursement for funds received through DOLA in 2007 and 2008 after the effective date of CRS29-29-101. If you need to conduct a further investigation into the matter, we ask that the investigation be bipartisan, transparent and open to public observation and comment.
Second, we ask that you direct DOLA officials to revise its annual reporting requirements
to facilitate adequate compliance reviews. It is frankly unacceptable that DOLA has not conducted a single compliance review or a single investigation of any city's reported "self-certification." There are simple steps that can be taken to improve the process, beginning with better data collection. For example, the reporting form used for SB 06-90 compliance (published on the DOLA web site) should be amended to require that the number of reports to ICE be divided into two numbers: (1) reports by peace officers at the time of arrest, and (2) reports by jail staff on persons booked into jail. Additionally, the mandated annual report by cities should require that the following information be included:
· the number of felony arrests for the year;
· the total number of all arrests;
· the number of foreign-born persons booked into jail during the year;
· the number of calls placed to foreign consular offices for foreign nationals in custody in compliance with treaty obligations;
· the number of illegal alien jail inmates for whom incarceration costs were reimbursed by the federal SCAAP program (26 Colorado counties participated in that program in 2007 and received over $3,700,000 in reimbursements);
· the number of jail inmates released to the custody of ICE; and
· the number of jail inmates with ICE detention holds on them at the end of the reporting period.
Third, we recommend that you direct DOLA to drop its "self-certification" model for determining compliance and develop new and more rigorous standards combined with annual compliance reviews. Cities should be considered as applicants for certification, with the certification granted after a performance review, a process that would be open to public hearing and comment. Allowing Colorado cities to self-certify their compliance with CRS29-29-101 is like allowing the fox to certify the safety of the henhouse.
Colorado law can deal only with the duty of local peace officers to communicate with ICE, not with the response made by ICE to such contacts. Everyone recognizes that ICE
(and especially its Office of Detention and Removal Operations, which covers the local
jails) needs to greatly increase its manpower, detention space and other resources. We will continue to ask the Congress and the Department of Homeland Security to provide the funds necessary to achieve effective immigration law enforcement in Colorado. However, this deficiency in federal performance must not be used as an excuse to avoid compliance with state law.
We look forward to your timely response to this letter. Denver's disregard of the law should be answered by applying the penalty set by law, the denial of state grants and
financial assistance administered by DOLA. If you do not invoke the penalty provisions
of the law in the face of Denver's demonstrated non-compliance, you are in effect saying the law is unenforceable. In that case, the law is worse than meaningless; it is a bad joke played on the citizens of Colorado.
Joining me in this letter are the following eleven members of the General Assembly:
Sen. Greg Brophy Rep. Cory Gardner Sen. Ted Harvey
Sen. Mike Kopp Rep. Kent Lambert Rep. Kevin Lundberg
Rep. Frank McNulty Sen. Josh Penry Sen. Scott Renfroe
Sen. Dave Schultheis Rep. Jerry Sonnenberg
U.S. Rep. Tom Tancredo
cc: Mayor John Hickenlooper
Denver Chief of Police Gerald Whitman
Denver City Attorney David R. Fine
Attorney General John Suthers
Susan Kirkpatrick, Director of DOLA
Mike Mauer, Colorado Legislative Council
Peter Weir, CDPS
Sally Symanski, State Auditor
Senate President Peter Groff
House Majority Leader Andrew Romanoff
James E. Kerr, Legislative Audit Committee
Sen. Ken Gordon
Sen. Tom Wiens
Rep. Mike May
Sen. Ken Gordon
Sen. Andrew McElhaney
Rep. Steve King
John Longshore, Denver ICE-DRO
Michael Masto, Acting SAC, Denver ICE
Arapahoe County Sheriff Grayson Robinson
Jefferson County Sheriff Ted Mink
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