IN U.S LAW, the “presumption of regularity” is the long-standing principle that courts, journalists and the public generally assume government officials are acting lawfully and truthfully unless proven otherwise.
The courts, journalists and the public were represented Monday at the Commonwealth Club World Affairs of California, a San Francisco-based public forum for critical discussion on current events.
The town hall event After Minneapolis asked the question: could Northern California be the next target for a heavy-handed federal immigration enforcement crackdown? Answers came from different perspectives but drifted toward a common conclusion: the Bay Area is encountering a new legal regime, and it requires a departure from the presumption of regularity.
The presumption “is a kind of legal gloss that we put over things that the government does,” said Shilpi Agarwal, legal director for the American Civil Liberties Union of Northern California. “It suggests that they are acting within the sort of norms and code of conduct that we generally expect of the government.”
Agarwal was joined by CalMatters investigative reporter Sergio Olmos, the Rev. Jon Pedigo of San Jose and state Sen. Aisha Wahab, D-Fremont.
Olmos described the change with an example of a news conference with U.S. Border Patrol Cmdr. Gregory Bovino after the killing of Minneapolis citizens Renée Good and Alex Pretti in the enforcement operation under his command.
Reporters wrote down Bovino’s comments, Olmos said, assuming he was not lying. Bovino then proceeded to accuse the victims of being criminals “looking to cause maximum damage” to immigration officers.
“You’ve abused the presumption,” Olmos said of Bovino. “Now, I don’t believe you up front.”
Pedigo: Raids causing collateral damage
Pedigo is a Catholic priest and executive director of People Acting in Community Together, a grassroots multi-faith, multi-racial organization that has been working closely with immigrant communities affected by raids in Santa Clara County.
Pedigo said the raids have caused collateral damage on several levels — disrupting family life, educational environments and safe places like churches and hospitals — resulting in an overall sense of loss in personal power.
He said there was a presumption of regularity among immigrants who came to this country that the government does not do raids and mass detainments.
“Kids are not going to class,” he said. “They are underperforming because they cannot concentrate amid distractions.”
One child in school told him, “I don’t know if I’m going to go home and see my mom again,” Pedigo said.
“Five years ago, people filled the streets walking around, having a great time,” Pedigo said. “Now you can go out to the same neighborhoods and it’s like a ghost town. No one is out. No one is walking. It’s like, what country are we in?”
State Sen. Wahab represents Fremont, Sunnyvale, Hayward and parts of San Jose. She said one thing that causes the administration to stop is President Donald Trump’s financial base, like various farm bureaus, who asked the administration to stop detaining workers.
Ahead of the Super Bowl, there were a lot of private calls from business owners telling the Trump administration, “we don’t want to see this,” she said.
“We made sure that the NFL spoke to the Department of Homeland Security. The effort was to just ensure that there will be no exercises in the Bay Area during Super Bowl weekend. Which we clearly saw was a success,” Wahab said.
KQED reporter and moderator Guy Marzorati asked the panel about the vision of mass deportation under Senate Bill 54, the California Values Act. The 2017 law severely limits the amount of cooperation that can take place between local law enforcement and federal immigration enforcement.
Sanctuary laws as constitutional guardrails
“The administration loves to demonize sanctuary laws,” said Agarwal from the ACLU. “Constitutional rights exist on an individualized basis. Any time any law enforcement officer, federal or not, wants to stop someone for reasonable suspicion or arrest them under probable cause, they have to do an individualized assessment of that person.”
She said rounding people up and throwing them in jail should be a slow process.
“We want it to be slow,” said Agarwal. “That is the sort of regime that we have set up in this country. The idea that if we just got rid of the sanctuary laws, suddenly we’d be able to round people up and throw them in jail is just so absurd.”
Olmos added that local law enforcement should be ensuring public safety and keeping schools and hospitals secure and accessible, not sharing data with agencies like U.S. Immigration and Customs Enforcement or aiding federal immigration officials.
“Immigration is a federal thing,” said Olmos. “That’s their problem they can figure out. We’re here for the broken taillights, domestic abuse, stuff like that. That’s why the sanctuary stuff is there.”
Wahab said that hospitals, schools, police and fire stations have always been safe places where people can go to seek help, but that presumption has been violated.
“… The idea that if we just got rid of the sanctuary laws, suddenly we’d be able to round people up and throw them in jail is just so absurd.”
Shilpi Agarwal, American Civil Liberties Union of Northern California
“Two women in my district who were pregnant decided not to come to the hospital to seek the care that they needed, and they lost their pregnancies,” she said.
Agarwal said racial profiling is against the law, calling it a bedrock component of the Constitution.
“The legal infrastructure that this administration is building with such huge amounts of federal enforcement power and the loosey-goosey use of terms like ‘domestic terrorist,’ is an infrastructure that will certainly be turned against citizens and people in this country when it becomes convenient for this administration,” said Agarwal.
Marzorati asked Agarwal about the large detention centers being built by the Trump administration, some of them with up to 10,000 beds.
“Do you have a concern that they might also be used for political dissidents and activists?” Marzorati said.
“Yes!” replied all the panelists at once.
“A hundred percent,” added Agarwal.
“One thing’s been making me feel better is the lies, and hear me out here,” said Olmos. “The fact that they have an impulse to lie about this shows that it’s either something illegal or something that people don’t like. Why else would you lie, right?”