Susan Ellenberg Casts Sole Vote Against Weakening Santa Clara County’s Sanctuary Policy

The Santa Clara County Board of Supervisors moved 4-1 Tuesday to figure out how to water down its landmark sanctuary policy to align with state law.

First-year Supervisor Susan Ellenberg cast the lone dissenting vote, saying the county should fix what’s broken instead of breaking what works.

“When I ran for this seat, I promised to be a strong and consistent advocate for our community’s most vulnerable members, particularly children and families,” the District 4 supervisor explained from the dais. “I promised to be inclusive in my approach and to strive for equity. I can’t maintain that promise and support a policy change.”

Those remarks followed more than five hours of public testimony and preceded another two of board debate over whether the county should notify U.S. Immigration and Customs Enforcement (ICE) about the release dates of undocumented detainees convicted of serious or violent felonies, as defined by the state penal code.

Hundreds of people showed up to the hearing. A record-breaking 160 of them signed up to speak—mostly in favor of the county’s existing policy.

The push to revise the ordinance comes in response to the Feb. 28 killing of 59-year-old Bambi Larson in her South San Jose home and the arrest of 24-year-old undocumented immigrant Carlos Arevalo-Carranza in connection with the crime.

Every local police chief joined San Jose Mayor Sam Liccardo, fellow Councilor Johnny Khamis and District Attorney Jeff Rosen responded to the tragedy by urging the county to rethink its policy of limited cooperation with ICE.

Supervisors Dave Cortese and Mike Wasserman then called for Tuesday’s hearing to consider bringing the county closer in line with SB 54, the California Values Act. The state law enacted last year is similar to the county’s in that it rejects ICE’s requests to prolong an inmate’s jail stay without a judicial warrant. Where the county goes a step farther is by prohibiting jails from notifying ICE about anyone’s release date.

The Values Act, however, makes an exception for undocumented immigrants with serious or violent felony convictions within the past decade. Wasserman and Cortese combined their proposals Tuesday to have county staff return to the board within two months with recommendations about how to update the local law for the first time since 2011.

A litany of attorneys, activists, ministers, members of various civil rights groups and undocumented immigrants and their advocates spoke against the change.

“Every day I tell my immigrant clients, if ICE comes to your door and they do not have a warrant, you do not have to let them in,” Pete Weiss, an attorney for Pangea Legal Services, told supervisors. “It’s very simple: you have a right to say now. Well right now, ICE is at Santa Clara County’s door. They do not have a warrant—they almost never do—and it’s very simple: we do not have to let them in. and our community can choose to say no. and our community has chosen to say no. … I urge you to stand by this county’s values for equal treatment for all its residents and keep our current policy as is.”

A number of speakers decried the county as overly lenient, invoking the name and the us-against-them rhetoric of President Donald Trump.

Monica Cayton—who described herself as a neighbor of Larson and descendant of Statue of Liberty sculptor Frederic Auguste Bartholdi—repeatedly used the adjective “illegals” as a noun to describe undocumented immigrants and said that because her family obtained documentation generations ago to enter the U.S. that everyone else should, too. The South San Jose resident also groused about “the illegals” who spoke up before her “demanding things from our country that they shouldn’t.”

Others called for the need to balance community trust with public safety.

“It occurred to me that this is a game of Russian roulette,” said Rick Loek, who said he’s a cousin of Larson. “You don’t know when you release one of these people what’s going to happen. ... A solution exists, murder is never acceptable and calm minds will prevail.”

SJPD Chief Eddie Garcia spoke in support of a narrow change, saying notifying ICE would help protect his department and the public.

“Let’s stand together and let’s collectively say that we’ve done everything to keep our residents and our police officers safe,” he said.

Rosen expanded on the sentiment in a statement that cited two examples of undocumented convicted felons who committed more violent crimes upon their release from incarceration. “We can argue the tactics of immigration authorities, but we cannot argue about the tactics of criminals targeting our immigrants and others,” he said. “These serious felons are preying on us, hurting us. Their removal from our community—first by jail or prison and then by deportation makes our community safer—for everybody.”

The policy, Rosen said, would apply to an estimated 100 inmates a year.

Wasserman said he supports the county’s position of requiring court warrants to access jails and request longer detentions, but that he’d like the county to work with ICE when it comes to release dates of certain convicts. “To me, it is an opportunity to remove somebody with a serious and violent history from our community,” he said.

Cortese explained his rationale by saying he wanted to clear up ambiguous language in the county’s 8-year-old policy, which includes provisions that have since been superseded by new statues and case law. “We need to work in good faith with law enforcement agencies, county counsel and our community leaders to come up with better policies that are clear to everyone,” Cortese said.

The two-term supervisor also expressed doubt about how the county could cooperate with ICE without resorting to unconstitutional profiling, consider that more than that 90 percent of ICE’s civil detainer requests targeted Latino detainees. “That violates virtually every policy that we have with regard to profiling—or not profiling—individuals,” he said.

Simitian echoed Cortese’s concerns, adding that he’d like more details about the information local law enforcement shares with ICE and which databases the feds can access. In response to Simitian’s questioning on the matter, County Counsel James Williams said ICE has access to a state law enforcement system called CLETS, but that the local officers have no way to determine a detainee’s immigration documentation status on any of the systems it uses.

Both Simitian and Supervisor Cindy Chavez said they worry about cooperating with ICE when the agency hasn’t acted in good faith and when it has so many more resources at its disposal than local law enforcement. Several speakers brought up those points earlier in the day, reminding the room that ICE has also been implicated in a number of human rights abuses, including separating parents from children and presiding over the deaths of dozens of immigrants detained at the border under the Trump administration.

There were also repeated calls to set the record straight on immigration and crime, with a host of speakers noting how study after study affirms that immigrant communities are generally safer. That’s true in Santa Clara County and San Jose, according to federal crime statistics. The South Bay, which is home to a population that’s more than 40 percent foreign-born, is one of the safest big cities in America.

Other speakers questioned why Larson’s killing didn’t prompt similar hearings about homelessness or what to do about the mentally ill or the chemically dependent, as her killer was classified as all three: an unhoused, schizophrenic methamphetamine user.

Santa Clara County Public Defender Molly O’Neal, for her part, said she worries that the county’s closer cooperation with ICE could “revive the jail-to-immigration” pipeline and stoke fear in the community. Williams noted at another point that transferring inmates to ICE upon release also raises questions about potential 4th Amendment violations.

In her statement explaining her “no” vote, Ellenberg reminded the room that Larson’s death would not have been prevented by aligning the county ordinance with SB 54, as proposed by some of her colleagues.

“We are here today because people are frightened and angry,” she said in her prepared statement. “We are here today because many of our neighbors don’t understand what the current law allows and what would or wouldn’t have been different in the case of Ms. Larson’s murder had our policy been different.”

What would have happened if the county policy echoed the state’s, requiring the jails to notify ICE of the release date of someone convicted of serious or violent felonies?

“Notification of ICE would not have been triggered upon the release of the suspect in the murder of Bambi Larson, as Mr. Arevalo-Carranza had not been previously convicted of a serious or violent felony,” she said. “It is true that he was charged with crimes that may have fit those categories, but the legal standard is conviction, not charge, and it is not within our purview to change that standard here today.”

Below is a copy of Ellenberg’s full statement to the board. 

Few issues will come before us that will have a greater impact on our county’s leadership role, our responsibility as public servants, and the welfare and safety of our community as the one we must address today. In fact, one of our foremost responsibilities as Supervisors is setting the policy that shapes public safety.

And we should always do everything we can to keep every person safe—regardless of their race, religion, ethnicity, gender identity, sexual orientation, age, developmental or cognitive abilities and yes, immigration status.

And frankly, our current policies work.

We have a lower violent crime rate than any urban county other than Orange and Riverside. We have the fourth lowest murder rate of any urban county behind Orange, Santa Barbara and San Mateo and it is worth noting that Orange, Santa Barbara and San Mateo also have sanctuary laws.

So, first, I want to thank our law enforcement agencies, from the police departments to the district attorneys and public defenders, as well as the policy makers who came before me for keeping Santa Clara County residents safe and for doing so in the context of equity and for not falling into the national rhetoric that immigrants, with or without documentation, are a great danger to public safety.

There are currently more than 10 million people living in the U.S. without proper documentation. More than 130,000 of those people live in Santa Clara County, representing more than 5 percent of our overall population of 1.9 million residents. The vast majority of them are employed, paying taxes, educating their children and engaging in constructive, beneficial ways in our community. They are an asset to the county, to their employers and to their families.

Maintenance of an immigration system is a responsibility of the federal government, not of local jurisdictions or law enforcement agencies. People who commit crimes in the county should be brought to justice in our local system. Their punishment should turn on the crime they committed, as opposed to their immigration status.

The question at hand today is whether we should change in any way the current policy that has been in place since 2011. That policy is working. As required by federal and state law, our county consistently honors judicial warrants from ICE and cooperates in the transfer of custody of anyone leaving our jails under those circumstances. ICE knows when individuals will be released and has the authority and mechanism to take custody of any undocumented person in our local criminal justice system. ICE can obtain warrants when ... warranted ... and as required by our federal and state constitutions.

I believe that our county can and must make genuine improvements to public safety by focusing our energy on the effectiveness of our own internal systems, which, though well intentioned and run by competent staff at every level, leave room for improvement.

If we want to prevent horrific crimes of the type recently perpetrated by people who were released from our custody, we need to take a look at every aspect of our criminal justice system … from arrest to booking to arraignment to pretrial release. Are we doing everything we can to ensure that those who are released into our community are not going to be a danger to others? If the answer is “no,” then the next question must be: What further work needs to be done to keep our community safe?

But instead of working to improve the policies that aren’t working, we are here today to review a policy that IS working.

We are here today because people are frightened and angry.

We are here today because many of our neighbors don’t understand what the current law allows and what would or wouldn’t have been different in the case of Ms. Larson’s murder had our policy been different.

Let’s talk about what would have happened if our policy had been as some request today: that we would notify ICE of the release date of someone who has been convicted of a serious or violent felony. Notification of ICE would NOT have been triggered upon the release of the suspect in the murder of Bambi Larson, as Mr. Arevalo-Carranza had NOT been previously convicted of a serious or violent felony. It is true that he was charged with crimes that may have fit those categories, but the legal standard is conviction, not charge, and it is not within our purview to change that standard here today.

Some community members and elected officials, as well as our law enforcement coalition, would like us to distinguish between documented and undocumented residents in a narrow set of circumstances: when an individual has been convicted of a serious or violent felony.

I know many of our local law enforcement officers personally and over years of engagement have developed a trust in their values, their deep knowledge of this community and their commitment to our sanctuary policies. If they believe that a policy change is necessary, that carries significant – though not determinative—weight with me.

My trust in law enforcement undoubtedly comes from my place of privilege in our community.

That trust led to my initial thought that if people were not violent criminals, they had nothing to fear if we changed the policy to include notification to ICE for a very narrow range of crimes. I thought there would hardly be any impact locally because in reality, very few people who are convicted of crimes of this level serve their sentences in our jail, so notification upon release would in actuality affect a very small handful of people. Meanwhile, some community members would gain a sense of safety because we had “done something.”

I was ready to support a narrow change in our policy. I believed that the impact would be small while the sense of comfort would be dramatic.

I am not in that place any more. Today, as a result of my work, research, conversations and quiet listening, not to mention our current political climate, I have come to a different conclusion. I still believe that public safety may be negligibly impacted but the impact on tens of thousands of vulnerable, law abiding residents and on vulnerable children in our County would be substantial, traumatic and lasting.

In fact, the Health and Hospital Committee is going to hear a report next week called The Effects of Harmful Immigration Policy: How to Respond to Trauma and Fear.

The report includes information on the psychological and neurological impacts of trauma, particularly on children as they develop. A recent panel addressed the imperative to support immigrant communities. In Santa Clara County 655,000 immigrants comprise 37 percent of the county population. Data from the Center for the Study of Immigrant Integration shows 1 in 10 children living in Santa Clara County is an immigrant, that 60 percent of children in the county have at least one immigrant parent and that over a third of undocumented residents in Santa Clara County reside with their U.S. citizen children. Research on the impact of trauma, and specifically fear of deportation and the impacts of family separation, shows that “the daily fear of arrest and deportation in mixed status families increases the risk of developing mental health problems like depression, anxiety, social isolation and poor academic performance among youth.” Impacts are felt both by documented and undocumented individuals with many living together in mixed status families and impacted by fear of separation.

Frankly, it is not in the county’s interest to disregard these impacts, as we know that untreated mental health issues lead to greater need for support, weaker economic stability and, in the worst cases, the very criminal behavior we are attempting to address today.

Our county and our law enforcement community have worked hard to build trust with our most vulnerable residents. Our One County, One Future campaign seeks to assure immigrant communities that Santa Clara County does not assist or cooperate with federal immigration enforcement actions. To date the county has committed $5.5 million to fund education campaigns and direct services for immigrant status households.

This hard-earned trust may be broken by enacting a policy that will not measurably improve public safety. And we will be distracted from the questions that need to be addressed.

Regarding my colleague’s referral, I respectfully disagree with the premise.

I don’t believe we need to go back and study this issue. The parties referenced in Supervisor Cortese’s referral have already weighed in. I also don’t believe we should devote the enormous staff time that would be required to review the 800 plus crimes listed in his referral. There has never been a discussion to my knowledge of even considering the inclusion of felonies, other than the narrower list of “serious and violent felonies,” let alone misdemeanors that are included on that list. I also worry that if we would approve even a narrow list of crimes permitting notice to ICE, we run the risk of getting it wrong on both ends and facing significant liability for unintentional errors, along with unnecessarily alarming thousands of law abiding but vulnerable residents, including many families and children.

When I ran for this seat, I promised to be a strong and consistent advocate for our community’s most vulnerable members, particularly children and families. I promised to be inclusive in my approach and to strive for equity. I can’t maintain that promise and support a policy change. I will vote no on any policy change today.

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @jennwadsworth.

26 Comments

  1. The county’s policy is eight years old already, predating the state law. It might be good to update the stance of SCC, indeed.

    However, other good points are raised as well. One that stands out is Ellenberg’s reminding us that the standard is conviction, not just arrest and being charged. That’s an important distinction.

    The other thing to keep in mind is who we’re dealing with. ICE doesn’t seem to care about its reputation too much. Remember that they are the ones that did the dirty work of separating children from their parents and other such acts which could be considered crimes in themselves.

  2. The ICE policy of separating children from parents was implemented under Obama to fight sex trafficking of minors where the “pimp” was pretending to be a parent.

    I guess Ellenberg does not think that a 59 year old woman living by herself was vulnerable enough for the protections she wants to afford her 24-year old male killer. Such twisted logic.

    • The policy of separating children was NOT started under Obama. As a general policy, it started under Jeff Sessions, who was Trump’s boy. This is a lie that’s being spread by the Big Orange, and some folks seem to just want to parrot that same lie.

  3. It won’t happen here. A police officer on his own volition calls up ICE. I would love to see the police officer get prosecuted. Sorry, I don’t think you can legally prohibit someone from talking to Federal Law enforcement. There is a certain little issue being the 1st Amendment involved here.

    • Not so much getting ‘prosecuted’ because we all know that law enforcement can even kill at will and the DA will be ok with it. But what would happen here is that they could get fired.

      Other thing is that the first amendment isn’t absolute. Categorizing this as a first amendment argument isn’t relevant.

      • Lawsuit time assuming the police officer gets fired. Either way he would be a national hero and will never have to look for work again.

  4. I hate to give you all the bad news but Trump is going to get reelected in 2020. It won’t even be close.

  5. Susan, protecting women and the community from dangerous criminals is protecting vulnerable people. Dangerous criminals have to be accountable for their crimes independently of their documented or undocumented status, SES, etc. JUSTICE FOR BAMBI!

  6. Full disclosure: I’ve voted for Susan twice and $upported her. But this is a rookie mistake, politically. On one hand, it’s tone-deaf: it’s like she’s at a funeral amid grieving family and neighbors and saying “our policy is working.” Ugh. And the sheer *length* of her statement, with the overflowing “we’s” and “I’s” feel vain and grandstanding. And why JW treats her lone dissenting vote as the main news, with full treatment of her monologue, feels like p.r.. I get Susan’s point but this is an own goal. Think more in the future.

  7. Please note this person was also homeless and a drug addict. Many of the Trump supporters who were speaking should note Trump lies, cheats, and is in collusion with the Russians and China. Just recently, he fired the FBI Director because he arrested his Chinese girlfriend spying on all the intelligence information he keeps at his hotel and country club. There is an influx of migrants because Trump and the Republican party are paying them to come to the border. The increase is because of Trump who wants to keeps people from talking about the real issues and all the debt he is running up to destroy our country. Trump and the Republicans have sold many of the children separated from their families to the Russians. What is my point. Like many who write in this blog there is no point just bored people who have nothing better to do.

    • Aurelia:

      Haven’t you heard? I think you need some new news sources. You sound like an ignorant dumbell.

      > Many of the Trump supporters who were speaking should note Trump lies, cheats, and is in collusion with the Russians and China.

      The collusion with the Russians was done by the Hillary Clinton campaign and by the DNC.

      The collusion with the Chinese was done by Senator Dianne Feinstein.

      > Just recently, he fired the FBI Director because he arrested his Chinese girlfriend spying on all the intelligence information he keeps at his hotel and country club.

      The President fired FBI Director Comey because Comey as a corrupt, bad cop. And the President had no “Chinese girlfriend”.

      Check your contacts list. It seems to be full of very stupid, uninformed people.

    • Please tell me you wrote all that … because trying to get a job writing jokes for Late Night Comedy TV.

    • Hahaha, I love it, Aurelia! Totally agree with you, too.

      And yeah, I heard that those kids are being sold to the Russians in Benghazi using their email servers. Hahaha, stoopid trumpster conspiracy theories!

    • Aurelia, I am not a Trump supporter. I think, Trump is a sexual pig and a racist. I also think Ilhan Omar is anti-semite. I think most undoccumented immigrants are not criminals. However, as with any population of people, a proportion of them are criminals. I am confused about your reference to this person being homeless and drug addict. Women, children, and other vulnerable pupolations are the primary victims of dangerous criminal both documented and undocumented criminals. The law has to be pro victim oriented not perpetrator oriented excusing sex offender, DV perpetrators,and murderers. JUSTICE FOR BAMBI!

  8. I’m really hoping the Feds crack down on these miserable scoff laws politicians. Round them up and frog march them down to GITMO waving their hammer and sickle flags. The whole state needs a few years under federal control, maybe marshal law.

    • I don’t know about Federal control, but I’ll second a motion to frog march the fascist/socialist/communist “scoff laws politicians” to GITMO as domestic enemies of the state.

  9. Normally I wouldn’t advocate for Federal control over anything but a dog pound, But California west of interstate 5 has just gone so “Third World Banana Republic” , lets get rid of the taxpayer citizen and pander to illegals, criminal and crazies. The nuts here are running the asylum.

  10. Any honest politician would not group immigrants that came legally in the same numbers as those who did not.
    People, especially legal immigrants, can have strong feelings about those who didn’t follow the rules, without being anti immigrant.

    What happens when we mock those who followed the rules and did things the right way? What kind of society do we get? Exactly the kind of society most of these people are fleeing from.

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