October 30, 2012 – Council Meeting




Complying with ICE detainers:  The city will process all arrests without consideration of immigration status and will not honor any ICE detainers.


Watershed Management Plan:  Approved

Meeting Notes:

Item #19 – Immigration Detainer Holds

Staff Report
Amended agreement added clarity and is far more restrictive than in the past.  berkeley policies go a long way to protect Civil Liberties.  Only if a detainee has been previously arrested for a criminal detainer (serious and violent) and is arrested again will the immigration hold be honored.  Juveniles are not held in Berkeley jails overnight – they go directly to Juvenile Detention.
Bates:  So you have to have been convicted and now you have committed another serious and violent crime and been arrested again for this to apply
Arreguin:  So only a serious or violent crime arrest will qualify and only the second time.  However the conviction may not occur.
Public Comment
ACLU:  We are treating people differently due to their immigration status.  We are having them deported due to an arrest only and not a conviction.  They have not been provided due process.
Coalion for a Safe Berkeley:  minors should not be subjected to this ordinance and should have due process.
Seminary Immigrant:  Central America is under duress so they can survive and be safe.
BOCA:  Berkeley should remain a city of refuge.  Youth should be exempt.   Should not be deported to a country they do not know.  Needs some clarity.  This program is designed to capture every undocumented immigrant in this country.  Against the program of detention that is not working.
40 year resident (from Mexico).  Want to see immigrants live the same life he has lived in this city.
Civil Liberties Lawyer:  Minors should be exempt.
Chair of Peace and Justice Commission:  We believe in reformation of character and paying the price and putting your past behind.  We have “banned the box”.  We want to uphold our city of refuge policy.  Should charge ICE back for the time Berkeley has to hold the detainees.
Gene Bernardi:  Flyies in the face of sanctuary city,  Against the Constitution.  An arrest does not make a conviction.  This is 3 strikes without being convicted.
Councilmember Comments:
Bates:  If a person is arrested for a violent and serious crime they are immediately fingerprinted and then these fingerprints go to the county and then finally to the FBI and ICE.  What will happen if ICE asks for a detainer??  Do we honor the detainer request.
Arreguin:  So the likelihood of a minor having a previous conviction is rare.  So if we get rid of the exception language (exceptions) then we could choose to honor an ICE detainer.  There has to be evidenciary evidence to be arrested.  City Council has been on record that we disagree with “secure communities” and support santuary cities.  Juvenile justice is separated from the standard justice process.  Santa Clara has exempted juveniles and we should do the same.  I want to state my appreciation that we have come very far in crafting these policies.
Maio:  It would be unlikely that a minor would have committed a violent crime, been released and then be arrested for another serious/violent crime.  So why would we set a separate policy for juveniles.   If we take the fingerprints or juvenile hall does they all go into the same place  I think we should treat everyone the same way because we cannot ask whether someone is undocumented.  I don’t think our department will not hold a person if not for probable cause.  If we treat every juvenile identically.
Bates:  I don’t understand the timing.  How much time is involved?  From fingerprinting to ICE?  So wouldn’t it happen at the county level?  Could it happen within 24 hours?
Worthington:  Under this new proposal how many people in our past would have been treated differently and how many would have been juveniles?  Being a juvenile is different and we should not treat juveniles like adult prisoners.  Seems like having and exclusion for juveniles makes sense.
Wozniak:  we treat detaninees as if we are immigration blind.  It would be helpful to know how much time the fingerprinting to ICE occurs.  How long does that take?  We should base our policies based on the crime that has been committed and not on exceptions to detainers.  Our juvenile system already treats juveniles differently.  Could we modify our policy so that we treat people as immigration blind and move them through the system quickly
Capitelli:  What happens when a juvenile does get sent to Juvenile Hall to they honor ICE detainers.  Then we are just rushing them off to juvenile hall so the county can take care of the detainer.  This is troubling.  I watch too many TV detective shows.  What are the serious vs. the violent crimes.
Bates:  So a person could not post bail immediately.
Anderson:  We operate under a larger political environment and in the past we could control this but there are new powers that are occurring in an environment of fear.  We have discussed the procedural policies and have heard where it gets out of our control.  This seems like an abdication and the system promotes deferring this responsibility to “greater powers”.  We have been coerced into this system of automation to outstrip an individuals right to protect themselves from it.  If you can be deported so quickly, once you are in the system, once you are gone you won’t get back.Why should we buy into a system when we know all elements are not fair and support juris prudence.  We need to remove the juvenile component.
Bates:  If I am arrested and fingerprinted then I am transferred to juvenile hall and then there is a hold by ICE then they will be deported.  What are our choices?  We can’t not arrest them or identify them.
Arreguin:  We have to recognize that on the county level the sheriff does recognize ICE detainers under secure communities.  That gets to the issue of treating everyone the same.  We are trying to work our way around secure communities.  If council wants to treat everyone the same then we should not honor any ICE detainers.
Bates:  Once they get to the county if they want them they will get them.
Maio:  Our police chief is worried about releasing a criminal into the community and you would not be doing so.  So if ICE calls you after an arrest why cant we treat that separately?  None of us want to release people who have been committed of violent crimes.  Why do we still use the term “release” that is not what we are discussing.
Bates:  Any one who has not committed a violent crime then we will release them?  I want to not cooperate with ICE at all.   We wont arrest anyone who would not have probable cause.
Worthington:  I want to clarify that whether you are a minor or not the entire normal state and federal system is still in effect so there is no way we can change that.  In general most or all of the progress we have made is better than before.  There are only two specific changes:  whether there is a partial or blanket exclusion for minors, and a requirement for a reimbursement from the government for the ICE hold.  That is all that is being proposed by the council or the community.  If no one on the council wants to explore one or both of these modifications
Arreguin:  the Mayor want to ignore all ICE holds and then have them proceed through the justice system.  Do we end up handing over someone to ICE or send them to the county for them to do it.
Wozniak:  We want to deal with violent criminals appropriately.  We should deal with people immigration blind.
Wengraf:  Why would you release someone if you had probable cause.  If we are going to be immigration blind then we don’t need an ICE hold.
Capitelli:  This argument should be made before the County Board of Supervisors.  It almost borders on gratuitous.
Maio:  Motion that we direct the Chief that we process criminals without any consideration of immigration status and without complying to any ICE detainer requests.
Motion and Vote:
Process criminals without any consideration of immigration status and without complying to any ICE detainer requests
Yes:  Unanimous
Item #20 Watershed Management Plan
Staff Report
Does not obligate the city to move forward on any of the plan.  Plan has been approved by the regional water regulators and will make Berkeley qualify for statewide bond funds.  $20 Million is available for the Bay Plan and there are many millions available in another bond.  The match can come from the entire Bay Area
Councilmember Comments:
Maio:  This is great work and you have given us a history of how we got into this situation and we are seeing this in West Berkeley all the time.  What is the LIDGI plan?  Would you please explain the bio-retension cells and bios-wales. I am happy that now we have a plan and can get some flooding funds from the state level.  Move the watershed management plan and adopting this plan.
Bates:  Is there a match requirements?
Moore:  Excited about this option and I am ready to adopt it.  And the possibility of getting state and federal funding to accomplish some of this is great.
Bates:  We could get some of this horrible weather that is occurring across the world.  What would happen if we had a similar occurrence.
Worthington:  If Measure M was to win on November 6 what is the maximum legal limit we could use of those funds to accomplish in this plan.
Wozniak:  The watershed plan is a very good plan and informative.  I would like as part of our biannual budget what opportunities we are pursuing for bonds, what we are planning out of city capital funds etc.  One of the problems with a big plan and one of the ways to address this is to look at the flooding and do investment in new systems to protect the community for the future.  It is an investment we need to do.  What is the return?
Yes: Unanimous