Javier Ortiz couldn't possibly have foreseen the consequences of peering down into a stranger's shopping bag on Market Street and asking, "How much?" The events that followed will soon get him shipped back to his home country.
The man holding open the Nordstrom bag that day in May had two pairs of Seven jeans and one pair of MEK Denim for sale. Ortiz, a native Honduran and illegal resident of the United States for more than a decade, bartered the man down to $55 and handed over the cash. A done deal.
Almost. What Ortiz didn't know was that Nordstrom had complained to police about the sale of stolen merchandise in the area, and had supplied an undercover cop with the pants for this very operation. Or that the cop would then signal to nearby officers who'd swarm in and clink handcuffs onto the 47-year-old's wrists, hauling him off to jail and booking him on a felony count of attempted receipt of stolen property.
Ortiz was one of four people arrested that day in an ongoing police sting on Market known as the Stolen Property Abatement Operation. Police say the stings have effectively cut down on the unofficial open-air market of stolen goods. The public defender calls it a waste of resources that targets non-English–speaking immigrants who hail from countries where haggling on the street is commonplace and those who don't necessarily understand that the goods have been "stolen."
But the arrest of Ortiz also illustrates an important loophole in the city's sanctuary city policy, in which an arguably minor crime can result in a felony arrest and getting handed over to immigration.
"Why they had to go into custody and be booked on felony charges literally blows my mind," says Ortiz' deputy public defender, Emily Dahm. "They have to know that's going to trigger ICE's interest, and I wonder if that's the intent."
The sanctuary ordinance allows the sheriff's department to report people booked on felonies, or those with a past felony conviction, to Immigration and Customs Enforcement (ICE), which then put an immigration detainer on Ortiz, Dahm says. Even though the district attorney reduced the charges against the four men arrested in the May 8 sting to misdemeanors, and eventually dismissed the case against Ortiz, he did not go free. Ortiz was delivered to ICE custody and will soon be deported to a country that just had a tumultuous military coup.
San Francisco has drawn headlines over the last year while it wrangled with the politically sensitive sanctuary ordinance, but the debate has mostly surrounded what to do with juveniles. Juvenile hall's former policy of protecting youth from deportation has now been junked, with juvenile hall now reporting anyone merely booked on a felony to ICE, just as with adults. Supervisor David Campos will soon present the Board of Supervisors with a resolution to have authorities postpone reporting illegal juveniles until after they'd been convicted. The public defender's office says there are many adults like Javier Ortiz — picked up on felonies that are later reduced to misdemeanors and/or dismissed — who get reported to ICE.
Interestingly, even Campos, an immigration-rights activist who entered the United States illegally as a teenager, doesn't think the policy needs to be changed for adults. "When it comes to adults, the sanctuary policy got it right," he says. "If someone is accused of a felony, it makes sense at that point to report."
This spring's stings came in response to an out-of-state Walgreens robbery investigator who contacted the SFPD's burglary division, complaining of the chain's merchandise being stolen and resold for a lower price on Market, according to a police investigation log. Walgreens offered to provide the SFPD with free merchandise (which police say is returned to stores afterward) if they conducted a sting. The police obliged, setting up a "sell/bust" operation at Fifth and Market and Seventh and Market streets.
Police say stings in April and May resulted in four arrests each. Other operations have been conducted using laptops. So far, Ortiz' case was the only one the public defender's office knows of where an arrest led to the person being transferred to ICE custody.
Yet the potential remains for more outcomes like Ortiz', since police say they are planning more operations. While the public defender claims police are preying on immigrants who don't understand English, police say their only target is those who attempt to buy "stolen" goods.
"The operation did not have a target; it just so happens that the people arrested were the only people asking to purchase stolen merchandise," Inspector Julia Ford of the burglary unit wrote in an e-mail. "The people arrested understood English enough to complete the transactions."
Police reports indicate varying degrees of comprehension. Ortiz did not ask to buy "stolen" property; rather, he asked, "How many, what size?" while haggling about the price. In one September sting featuring a laptop, an undercover cop told one Spanish-speaking man, "I jacked this last night" and "I took the chance of getting caught by the police, man." Again, the police report indicates the man haggled about the price, but never responded to the officer's assertions. Defense attorney James Conger says his client had no idea what "jacked" meant. The man was convicted of a misdemeanor, with many jurors telling Conger afterward that the man should have known it was stolen, given the context of selling it on the street.
"The truth of the matter is he didn't understand what the hell was going on," Conger says. "He basically saw a great deal. They're preying on people who ... otherwise don't possess the criminal intent until you present them with this criminal decision."
The contention that some of those arrested are potentially dangerous felons borders on humorous. Last month, an ever-smiling 62-year-old Vietnamese man who'd paid an undercover cop $35 for razor cartridges and Lamisil antifungal cream left the Hall of Justice, showing a reporter the toy helicopter the police confiscated from him.
That doesn't mean they're all angels. Ortiz had been arrested on four misdemeanor charges in the last nine years, though they were all eventually dropped. Another man caught during the May sting told an undercover cop to walk away down the block because cops had been working undercover selling stuff earlier that day. When the officer told him he'd stolen the razors from Walgreens, the man responded, "It's okay." That defendant was given pretrial diversion that, if completed, means the case is dismissed.
While the public defender argues it is a waste of resources to jail such people and prosecute their cases, the police say they trust a jury to decide. "I tend to believe in the judicial system," spokeswoman Sergeant Lyn Tomioka says. The district attorney ended up dismissing three of the four cases from the May 8 sting.
The system certainly sent Ortiz a strong message. Read his Miranda rights in Spanish after his arrest, Ortiz waived them and stated that he had no idea the jeans were stolen and that he was sorry, according to the police report. That won't help him now. Released from San Francisco custody on June 1, Ortiz was transferred to a detention facility in Eloy, Arizona, and was ordered to be deported to Honduras on June 23, ICE spokeswoman Pat Reilly says. As this story goes to print, he's either still there, or already gone.