The Legal Duty To Rat & Sanctuary Cities, Etc.

[johnkarls]

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Alternate Title = The Inability of Hollywood to Distinguish Between Hitler/Stalin Totalitarianism and British/American Democracy!!!


The Wikipedia article on Illegal Immigration reports that at least 20 major American cities have become legal “sanctuaries” for illegal immigrants –

“Many cities, including Washington, D.C., New York City, Los Angeles, Chicago, San Francisco, San Diego, Salt Lake City, Phoenix, Dallas, Houston, Detroit, Jersey City, Minneapolis, Miami, Denver, Aurora, Colorado, Baltimore, Seattle, Portland, Oregon and Portland, Maine, have become "sanctuary cities", having adopted ordinances banning police from asking people about their immigration status.[155] However, if ICE (formerly the INS) finds an undocumented immigrant in violation of local sanctuary laws, this will not keep them from being deported.[citation needed] Critics of these cities charge that their leadership is committing treason, other crimes by harboring illegal aliens.”

In addition, we know that popular American culture despises anyone who “rats” on anyone else to the authorities!!!

This, of course, would mean that if anyone becomes aware that, for example, a co-worker or a neighbor is an illegal alien, this fact should not be reported to the authorities.

The reason why this notion that it is improper “to rat” has entered American culture is that Hollywood has associated “ratting” with the evils of fascism and Stalinism, and how “ratting” to totalitarian authorities historically produced socially-undesirable results.

Hollywood, however, fails to distinguish between totalitarian regimes and democracy. And (a la “Law School 101”) let’s put aside for a moment Hollywood’s potential defense comprising a claim that Britain and America do not have democracies.

In a perfect democracy (think, perhaps, ancient Athens), it is at least arguable that requiring citizens to report crimes to the proper authorities is socially desirable.

Whether or not one accepts this proposition, it can be seen from the essay that follows that British and American “common law” makes anyone who fails to report a crime subject to criminal prosecution as an “accessory after the fact” to that crime.

Obviously, the philosophy behind the creation of “sanctuary cities” is that illegal immigrants will have no protection against being the victims of crime if, as a practical matter, they cannot report the crimes perpetrated against them for fear of being deported.

It should be noted that for this policy to actually work in practice, it would be necessary for the “sanctuary city” legislation to go beyond “banning police from asking people about their immigration status” as reported by Wikipedia – because there would still be a tremendous potential for the police to suspect from other evidence that the victim is an illegal immigrant and report that possibility to the federal immigration authorities without asking the victim about her/his immigration status. For the illegal immigrant to feel confidant enough to come forward, it would be necessary for the “sanctuary city” legislation to prohibit the police from reporting anything to the federal immigration authorities, no matter how obvious other evidence of illegal status is.

Accordingly, in cases where such other evidence is strong enough that a reasonable person would conclude that the victim is an illegal immigrant, “sanctuary city” legislation requires the police to either violate the “sanctuary city” legislation or become an “accessory after the fact” to the violation of the immigration law.

This is not to say that “sanctuary city” laws are not desirable from a purely ethical viewpoint. It is merely to say that it places the local police in a position that is untenable, at least theoretically. However, as a practical matter, the local police probably will not be prosecuted as a result of “prosecutorial discretion.”

Nevertheless, a co-worker or neighbor who becomes aware of illegal-immigrant status has no legal defense against being prosecuted as an “accessory after the fact.” Indeed, if one believes that America has enough of a democracy to be classified together with ancient Athens, rather than with Hitlerian fascism or Stalinist totalitarianism, there would not even be an ethical defense. Other than being led astray by Hollywood!!!


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The Legal Requirement to Rat

Abraham Lincoln and John Wilkes Booth and Dr. Samuel Mudd –
“Accessory After the Fact To Treason”

August 1, 2006


Dear Colleagues,

(The first two paragraphs to this essay explained that (1) at a professional meeting the opinion was voiced that a person becoming aware of fraud being committed by an unrelated second party against an unrelated third party has no obligation “to rat” but (2) the undersigned opined that failing “to rat” would make the original person an “accessory after the fact” and (3) the following essay resulted from a request to the undersigned to confirm that opinion.)

Disclaimer: Although the undersigned has practiced law in New York City since 1967, he is not admitted to practice law in Utah. Accordingly, the following “essay” is not a legal opinion and should be reviewed by each recipient with her/his own Utah counsel.

Utah law is based on English/American “common law” which consists primarily of English and American “case law” or legal opinions. Under English/American common law, “aiders and abettors” to a crime fall into two classes:

(1) “Accessories Before The Fact” – “At common law, an accessory before the fact was a participant in the offense who was not actually or constructively present at the scene of the crime when it was committed, but who procured, counseled or commanded another to commit the crime.” 21 American Jurisprudence 2d, Criminal Law Sec. 208.

(2) “Accessories After The Fact” – “At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment.” 21 American Jurisprudence 2d, Criminal Law Sec. 209.

Probably the most famous conviction as an “Accessory After The Fact” involved the assassination of President Abraham Lincoln by John Wilkes Booth who broke a leg during his escape. Booth fled on horseback and, after traveling a considerable distance, stopped at the home of Dr. Samuel Mudd to obtain treatment for his broken leg. Even though Mudd and Booth were strangers before the incident and even though Mudd was not aware that Booth had done anything wrong, Mudd was convicted as an “Accessory After The Fact To Treason” and sentenced to life imprisonment.

Ordinarily, being an “Accessory After The Fact” requires that the defendant have knowledge that a crime has been committed. However, the case of Mudd demonstrates that this knowledge can be “constructive” rather than “actual” – that Mudd should have known that Booth had committed a crime since he had been racing on horseback across the countryside late at night with a broken leg.

The other requirement for “Accessory After The Fact” status that defendant have assisted the felon is an extremely “low bar”!!! For example, the U.S. Second Circuit Court of Appeals held that concealment from the F.B.I. of knowledge of how to contact a bank robber is sufficient aid for conviction as an “Accessory After The Fact to Robbery.” U.S. vs. Garris, 616 F.2d 626, 630 (2d Cir. 1980).

In other words, the Second Circuit held that the person with knowledge of how to contact a bank robber had a legal obligation, on pain of criminal prosecution, “to rat”!!!


Respectfully submitted,


John S. Karls

[Pat]

Be Careful of What You Wish For – Democrats & Independent US Attorneys

“The Monkey’s Paw” is a famous short story by W.W. Jacobs written in the genre of Edgar Allan Poe and illustrating the irony of whether one would really want what s/he wishes for.

In reading the foregoing item about how “Sanctuary City” legislation transforms a local police force into a conspiracy to violate federal immigration law, I am reminded of “The Monkey’s Paw”!

After all, a violation of federal immigration law is a crime for the U.S. Attorneys around the country (rather than State Attorneys General or local District Attorneys) to prosecute.

Presumably, the only reason why U.S. Attorneys have not been prosecuting the members of local police forces of “sanctuary cities” for being members (whether or not voluntarily) of a conspiracy to violate federal immigration law as “accessories after the fact” is that the last three U.S. Presidents have refused to enforce the 1986 Immigration Reform and Control Act, in general, and, in particular, the 1986 Act’s prohibition against employing illegal immigrants.

Now suppose that the Democratic Party is successful in enacting legislation to make U.S. Attorneys independent following their appointments – similarly to the way that federal judges are unanswerable to anyone/anything following their appointments.

And that one or more U.S. Attorneys decide that it is unseemly for “sanctuary cities” to be “thumbing their noses” at U.S. Immigration Law.

In theory, the result should be the incarceration of entire police forces in federal penitentiaries, though the practical result may be different based on how the presiding Federal Judge (who is also unanswerable to anyone/anything other than her/his own personal prejudices) frames/limits the factual question(s) for the criminal jury to decide (as distinguished from the questions of law which are always reserved for the judge to decide).

Editorial Note: It should be noted that the potential defense of merely following orders or merely adhering to invalid law has been a losing defense, most famously at Nuremberg where Nazi war criminals were tried. After all, would/should it be a valid defense against a charge of murder (and the corresponding federal criminal offense of deprivation of civil rights) that an American city passed legislation requiring its police force to kill illegal immigrants? In pondering your answer, please consider that this would approximate the Nuremberg facts except that in Nazi Germany, it was the national government promulgating laws that required killing specified minorities! And if you would not permit an American city to promulgate a policy that required killing a specified minority, why would you permit an American city to promulgate a policy that violated other law, such as Federal immigration law?