Memorial Park - Problems & Solutions By Hail Hamilton |
The following is an article never published by the Mt. Wilson Observer (now the Mountain-Views Observer). It is based on a speech I gave to the Sierra Madre City Council on March 6, 2007 in response to letters I received from the then City Manager John Gillison and Police Chief Marilyn Diaz, along with a lengthy legal brief by City Attorney Sandy Levin refusing to enforce the Municipal Code as it applies to the day workers hanging about soliciting work in Memorial Park. In addition, I have taken the liberty to update the facts and context in which the Memorial Park controversy began, evolved and continues unabated today. Finally, although Mr. Gillison has moved on with his career, most of the other players remain the same.
“Mr. Gillison’s letter, along with an attachment by Chief Diaz, is a written response to my written complaint ( December 2006) about continued violation of the Municipal Code by the day-workers loitering about and soliciting work in and around Memorial Park. Their point was (and remains) that it is too “costly” and a waste of the city’s “limited resources” to enforce the Municipal Code as it applies to loitering, solicitation, and commercial use of the park without a permit. The Chief went so far as to say it was an “inefficient” use of the city’s few officers and that any arrests made of day-workers would probably not be prosecuted. In other words, the police have the time to issue traffic citations but not the time to issue citations for illegal park use.
“Their view on the subject was supported by a long “brief” prepared by City Attorney Sandy Levin in which she argued that it is “unconstitutional” to enforce the Municipal Code against the day-workers soliciting work in or about the park. Everyone should read the 30 page brief she authored if for no other reason than to see how their tax dollars are being wasted.
“Ms. Levin’s advice to the SMCC is basically to continue its non-enforcement policy of the day-workers in Memorial Park. Her brief is especially interesting not because of its cutting edge legal analysis or any ground breaking solutions it offers because in these respects it is totally lacking. What is interesting about her brief is its lack of substance. Curiously, most what it contains are old news stories obviously “cherry picked” from now defunct local papers to support the city’s “do-nothing” policy. The few legal cases she cites are either “easily distinguishable” or “not on point” to use the common parlance of lawyers. In other words, Ms. Levin thinks a small town “hick” reporter like me would not check her work.
“Compare her citations with mine. She emphasized FREE SPEECH and EQUAL PROTECTION. I focused on USAGE of the park. Also, compare the shear volume of her “brief”—approximately 30 pages—with my two-page “short.”
“Ms. Levin, correct me if I’m wrong, but as I recall even speech can be controlled. The Supreme Court maintained in Schenck vs. US that freedom of speech and press could be constrained if “the words present a clear and present danger.” Perhaps Oliver Wendell Holmes defined the limits of the 1st Amendment best when he said: “One can’t yell ‘fire’ in a crowded theater,” because of the potential of injury it would cause. Regarding Memorial Park, if I want to hold a demonstration in the park speaking out against the war in Iraq, I am required the get a city permit prior to holding the demonstration. No one would argue that my right to freely express my views has been violated. And this is political speech, the most cherished of our Constitutional guarantees. Commercial speech is way down the list of constitutionally protected free speech.
“Listening to the City Manager and the City Attorney lecture on and on about why the City can’t do a thing about day-workers and those who hire them made me want to puke. All I heard was Free Speech, Equal Protection, and Racism. I didn’t hear one word from either the City Manager or the City Attorney about the illegal usage of Memorial Park. I didn’t hear one word in defense of the people who want to use the park for its intended purpose of recreation but feel unsafe going there because of the unsightly strangers loitering about soliciting work from passing vehicles.
“I didn’t hear one word from the City Manager or the City Attorney about the illegal usage of Memorial Park. Nor did they say a word in defense of the Equal Protection of Sierra Madre residents whose taxes pay for the Park. I didn’t hear one word about the people who pay for the maintenance of the park. Apparently, the taxpayer who pays all the city’s bills doesn’t count. Only Don Watts and Kurt Zimmerman spoke up for the residents in support of taking back the park.
“Ms. Levin’s claim that she is trying to avoid “unnecessary and frivolous” lawsuits is another red-hearing. She knows well that anytime the city is sued it has a duty to file a “counter suit” or “cross-claim” against the party suing the city. The theory is that “counter-suits” discourage “frivolous litigation” because the loser of the lawsuit pays the court costs and the attorney fees of the winner. In theory, the “winner take all” policy makes potential litigants more receptive to arbitration, mitigation, or other out-of-court forms of settlement. “Cross-complaints” also mandate that all issues should be decided, whenever possible, in one trial. Again, this raises the stakes and discourages bogus lawsuits.
“Then there was Chief Diaz’s lame distinction between the park and the adjacent sidewalk. Again, she refused to recognize that using the park for any commercial purpose is a misdemeanor. Also, I was appalled by the continual reference to prohibiting anyone from “soliciting” and “loitering” as a violation of the Equal Protection Clause of the 14th Amendment. This was an obvious red hearing designed to confuse and obscure the real issue.
“Chief Diaz’s reason why the Municipal Code in Memorial Park was unenforceable concerning the day-workers was because of the difficulty of bringing successful prosecutions was a particularly weak argument considering the explicit prohibition of “commercial use of any kind” of the park without a city permit. And the distinction she made between the park and adjacent sidewalks was nonsense—local restaurants pay the city for a permit to have tables and chairs on the sidewalk in front of their establishments.
“I also was appalled by the continual reference to prohibiting anyone from soliciting and loitering as a violation of the First Amendment’s free speech protections and the 14th Amendment’s “equal protection” clause. These were obvious red hearings designed to confuse and obscure the real issue—day-workers violating city laws with apparent impunity.
“Although everyone present was brought to tears by my wife’s tragic experience, the City Manager, the City Attorney, and Chief Diaz’s took the disingenuous position that a crime is only committed if a women is solicited for sex, physically molested or raped. This is not the law and they know it. Sexual harassment and creating a hostile environment in a public or place is a crime. My wife was sexually harassed and forced to experience an extremely hostile environment in public place just feet from City Hall and the Police Station.
“My wife’s humiliation by the day-workers is also a civil offense subject to a lawsuit for monetary damages. There could also be legal actions against the city where misfeasance, nonfeasance or malfeasance is shown. In other words, if the city is found negligent for not enforcing its laws it may be sued for monetary damages. Moreover, if their negligence is of such severity, they may be assessed punitive as well as actual damages. Now my wife is well aware who really pays—not the day-workers but the city. And that means the Sierra Madre taxpayer. She doesn’t want that, she just wants the city to do its job and take the park back as a recreation facility and important part of our community heritage.
“Chief Diaz’s position that it is only a crime if a woman is solicited for sex, physically molested or raped is disingenuous. In fact, it’s dead wrong. Sexual harassment or creating a hostile environment in a public or private place is a crime. My wife was sexually harassed and forced to experience a hostile environment by day-workers loitering about Memorial Park. The Chief knows that these are serious crimes in California. They are also subject civil actions for monetary damages.
“That my wife was within feet of City Hall and the Police Department makes these transgressions even more heinous—especially in “family friendly” Sierra Madre. Is it any wonder why so few of these “incidents” go reported? The word is out to local women—report being sexually harassed and you risk public ridicule!
“Chief Diaz should understand that “foreseeable” is a legal term. “Foreseeable” requires that action be taken by an reasonably prudent person while exercising their duty of due care for the welfare of others when it is likely the outcome of a particular activity will cause injury. The concept of “foreseeable” applies particularly to public officials—especially, those responsible for public safety. Chief Diaz should understand that by allowing Memorial Park to be a “free zone” for day-workers is an open invitation that other, more serious crimes, may be committed against the very people she swore to protect.
“The point is not to criticize Chief Diaz, however. I know she has a tough job and that part of being Chief of a small town police department is balancing the desires of local politicians with the needs of public safety. The point is rather to raise important issues and find solutions. Day-workers violating the law with impunity under the guise of Free Speech or Equal Protection of the Law are not solutions—they are simply excuses for looking the other way.
“As always there were couple “locals” there to throw in their two bits defending the day laborers by playing the race card. One guy in particular, Howard Morzov, said the whole day laborer question was a non-issue and created by a “mean spirited individual who got his feelings hurt.” What these guys really wanted was to allow the day laborers to stay in Memorial Park so that a few residents and “contractors” could continue to have a readily available source of cheap labor. Of course, these “locals” immediately left the meeting after they spoke rather than hear out the other side.
“Then there was the appearance of a representative from MALDF, the legal arm of La Raza (translated “The Race”) and Mecha. Cynthia Valenzuela, Director of Litigation, gave the standard dog and pony argument that any attempt to restrict the solicitation or loitering of day-workers was unconstitutional and would be met with a law suit. Don Watts would have none of this and said, “I for one will not allow the city to be held hostage by the threat of law suits.”
“What wasn’t mentioned was who pays for the “shakedown” litigation for which MALDF is kept quiet. In fact, the same corporate sponsors that finance George W. Bush and his pals from Crawford, Texas sponsor MALDF, La Raza and Mecha! That’s right the Hispanic “open-door” socialist agenda—zealously supported by our President—is being financed by some of the best known US Fortune 500 companies—including among others Coors Brewery, Inc.! American beer is apparently preferred over Mexican cerveza at least among Chicano politicos—sorry Corona, too bad Dos XX!
“A much better solution is to require a city permit for all day-workers to solicit work and a permit for all those hiring them. This permit would be issued by the city for a reasonable fee and require all applicants to have photo identification, Social Security Card or “Green Card,” and verifiable current address and phone number. This information could be used to check criminal records and verify that all persons working in Sierra Madre have a legal right to do so. Furthermore, this would be in compliance with federal law by requiring any person discovered “working” without proper documentation to be reported to the Office of Homeland Security, Immigration and Naturalization Service. It would also subject the “employer” of the illegal worker to a substantial fine.
“In addition, contractors would be required show proof of a valid contractor’s license and pay a reasonable fee to get a business permit. They would also have to show proof that all their employees were covered by Workman’s Compensation, that they withhold taxes, and that they carry sufficient liability insurance to cover any damage to persons or property at job sites. Proof of their compliance would be to display a “Right to Contract in Sierra Madre Sticker” issued by the city, like the sticker required of contractors who do business in San Marino.
“Finally, I disagree that it is too costly or impossible for the city to enforce the Municipal Code in Memorial Park. The park could be a regular part of the department’s morning patrols. Signs warning of the illegality of hiring day-workers in or around the park could be conspicuously posted, and if surveillance is necessary use television cameras and monitor them then in the police station. But to say that the city is powerless to enforce its laws is ridiculous. As Jeanne Keating said at the meeting, “Memorial Park is our park, we pay for it with our taxes, and we own it. To say that the city can’t control the use of the park is PURE BUNK!”
In support of my demand that the City of Sierra Madre enforce its laws as they apply to the day workers loitering about and soliciting work in Memorial Park, I conclude this article with a citation from the United States Code. It appears that the City Council not only refuses to enforce the Municipal Code but it is not enforcing the United States Code as well. This is no small matter. Being out of compliance with federal law is a may result in our city losing a variety of federal funds. These dollars are absolutely necessary to running the city.
Currently, Sierra Madre is facing its worse financial crisis in its 100 year history. This means that if the city doesn’t get its financial house in order, Sierra Madre could become insolvent and face bankruptcy as early as 2009. Even the proposed increase in the utility tax, if voters approve it, will not save us. It is a short-term solution to a long-term problem because the measure that does not address the structural problem of paying our way as a city. The fact is we don’t take in as much money as we spend! In fact, for years we’ve been dipping into our capital improvement fund to pay our operating expenses. Consequently, any loss of outside funding—county, state or federal—could prove catastrophic to Sierra Madre.
Federal Immigration and Nationality Act
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."
“Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):
“A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
knowingly assists illegal aliens due to personal convictions.
“Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
“It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer.
“For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor. The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.
“An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.
“Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.
“IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
“It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE AN ALIEN TO REMAIN IN THE U.S. ILLEGALLY. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.
“An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.
“The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.
Enforcement
“A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
“State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
RICO -- Citizen Recourse
“Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.
Tax Crimes
“Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.”
Aiding and Abetting Illegal Aliens is a Federal Crime!