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'99 legal opinion backs city
Denver cops don't have to tell feds of illegal immigrants

By Lou Kilzer, Rocky Mountain News
May 18, 2005

Denver cops have no obligation to report to federal authorities that a person they have contacted is an illegal immigrant, according to a 1999 city attorney's opinion.

On the other hand, there is nothing in the now-famous mayoral Executive Order No. 116 that prevents an officer from enforcing criminal sections of immigration law, the opinion states.

The opinion came to light as the tempest over the legal status of Raul Garcia-Gomez, suspected in the shooting death of a Denver officer, continued to swirl Tuesday.

Current City Attorney Cole Finegan said parts of the opinion by his predecessor reaffirm his own.

"It's what we've been saying for the past week," he said Tuesday. "Executive Order 116 had no effect on police procedure."

The earlier opinion was requested by then-Police Chief Thomas Sanchez. It followed an executive order by former Mayor Wellington Webb that delineated the rights of immigrants.

Though Webb's order did not mention illegal immigrants specifically, Sanchez asked what effect it might have on his officers.

The verdict was clear.

"Executive Order No. 116 has no impact on the arrest policies and procedures regarding undocumented aliens," the opinion states.

However, the document draws a line in the sand between the criminal and civil aspects of federal immigration laws.

The distinction is important because being in the country illegally only violates civil laws, according to the opinion. To enforce immigration laws, an officer needs evidence that a person not only is in the country illegally but also entered the country illegally.

It seems a legal splitting of hairs, but the distinction is critical, according to the 1999 opinion signed by then-city attorney Daniel Muse. For instance, immigrants who overstay their visas are in the country illegally but are subject only to civil, not criminal, laws.

Muse and his assistant quoted a court ruling that held:

"Although the lack of documentation or other admission of illegal presence may be some indication of illegal entry, it does not, without more, provide probable cause of the criminal violation of illegal entry."

In such cases, the city attorney wrote in the 1999 opinion, an officer is under "no affirmative duty" to report an immigration violation.

The debate and legal tea leaf readings came in the wake of a news release by U.S. Rep. Tom Tancredo, R-Colo., charging that "Denver's sanctuary policy prevents local law enforcement from cooperating with federal officials on immigration matters."

So far, no such written policy has surfaced. Finegan earlier said that Order 116, the closest document concerning the issue that has come to light, had no effect on enforcement.

Finegan said he is not bound by the earlier opinion and has come up with his own analysis of Order 116. However, he said, some of the legal logic is consistent.

Earlier in the week, he wrote to the mayor's office that "Executive Order 116 does nothing to suggest that Denver has a sanctuary policy."

Denver police procedures are consistent with the earlier opinion and his current analysis, Finegan said.

Those procedures prescribe that Denver cops will not initiate immigration actions against persons not suspected of other criminal activity.

However, if a person is arrested for other lawbreaking, the case will be referred to federal immigration authorities.

The debate sparked by Tancredo's sanctuary-city assertion will be taken up by the City Council in a soon-to-be-announced special committee meeting.

Council President Elbra Wedgeworth said she will invite Mexican consulate, federal immigration and local law enforcement officials to discuss where exactly Denver stands in enforcement of immigration laws.

Representatives of the American Civil Liberties Union also will be asked to attend, she said.

The 1999 city attorney opinion came after an incident in which Denver police helped deport a Lincoln High School student arrested on traffic warrants.

Then-Manager of Safety Butch Montoya said the case had been mishandled. "(Denver police) are clearly not INS agents," he said. "This situation was not handled properly."

The subsequent opinion said that Order 116 discourages "reporting undocumented aliens who seek essential services."

Much of Denver's policy is similar to large jurisdictions in the country, many of which were formulated as concern over domestic violence grew in the 1980s.

Police sought to encourage victims to report incidents by promising not to use their complaints as a cause to report them to immigration authorities.

Tancredo's news release and subsequent comments have opened the immigration issue up for fresh debate.

He has stood fast in his assertion that Denver provides implicit sanctuary for illegal immigrants, regardless of legal semantics.

Some parts of his assertion are not in dispute. Denver, like many other large cities, has policies to provide services to residents regardless of immigration status.

The 1999 opinion is direct on that point. It states, "Order 116 expresses a clear intent and policy to preserve the rights of residents of the City and County of Denver irrespective of their citizenship."