Wednesday, July 14, 2010

David Esquivel tapped for Leadership Nashville

David Esquivel
The Tennessean reports that David Esquivel was named to the new Leadership Nashville class:
[O]ut of 230 applications just 44 were chosen for the competitive program run by a local non-profit that exposes local leaders to a broad and in-depth view of their communities...[T]he group will hear from about 125 speakers and make on-site visits to business, non-profit and government offices while addressing issues such as crime, affordable housing, school finances, racial tensions, transportation and arts funding.
Read the full story in the Tennessean here.

David Esquivel is a partner at the large Nashville law firm Bass, Berry & Sims. The son of Cuban immigrants, Esquivel is a past recipient of the Tennessee Bar Association's Harris A. Gilbert Pro Bono Attorney of the Year Award for trying a torture case against an ex-military official from El Salvador for the commission of crimes against humanity almost thirty years ago, leading to a civil judgment in favor of the victims.

Esquivel also spoke against Nashville's 287(g) program when it came up for renewal last October.  Speaking to the Metro Council, he spoke of his concern that his own relatives would be impacted by the program:
I am the child of Cuban immigrants. My first language was Spanish, and all of my older relatives, including my father, speak English with a heavy Spanish accent. I don’t want those kinds of characteristics – skin color, national origin, and English proficiency – to be the difference between one of us driving home with a ticket, and spending a night in jail.
Esquivel's full remarks to the Metro Council are below.

October 19, 2009


Mr. Chairman and members of the committee, thank you for allowing me to appear before you tonight. My name is David Esquivel. I live on Sweetbriar Avenue near Belmont University. I work as a partner in a large law firm. My wife and I moved to Nashville 8 years ago because we knew Nashville to be an up and coming, economically vibrant, diverse, and welcoming city. We have not been disappointed. Nashville has exceeded our expectations as a great place to live, work, and raise a family.

I am not part of the law enforcement community, nor am I a civil rights lawyer. I am here as a concerned citizen.

Ever since I heard about the arrest and detention of a nine-month pregnant woman based on a traffic stop in Berry Hill in July 2008, I have become very concerned about the program known as 287(g). I am concerned about the effect that this program has had on women like Juana Villegas, their husbands, and their young children. I am concerned about the way this program has forced thousands of my neighbors to live in fear of a minor traffic stop or any sort of interaction with the police, which drives them further into the shadows of our society. And as I have seen 287(g) programs here and elsewhere attract national criticism, I have become extremely concerned about the effect of this program on our city and on its reputation as a place of welcome and hospitality.

Please let me outline a few of my concerns, as well as a proposed solution that I believe can satisfy these concerns and, at the same time, meet all the Sheriff’s stated objectives for this program.

I. First, I am concerned that 287(g) provides the wrong incentives to officers in the field.

A. Because it is against public policy and good law enforcement policy to crowd the jails with everyone who commits a minor offense, state law says that only in certain situations can people who commit misdemeanors be taken into custody. Unless an exception applies, the officer should issue a citation.

One of these exceptions is when someone is unable to identify himself to the officer. But anything that confirms the identity of the person should be sufficient to avoid custodial arrest – not only a U.S. drivers license or government I.D., but also a foreign passport, foreign DL, or other non-gov’t issued ID. Because 287(g) provides an incentive for them to do so, however, Metro police officers have at times ignored the I.D. requirements, and arrested people when they should simply be issued a citation. Examples of this are not just anecdotal, but documented in arrest records. [example of Rosalescastro, who was arrested even though he provided id as detailed in arrest warrant]

B. When making the determination whether to issue a citation or take someone into custody, 287(g) provides some officers with an incentive to rely on proxy indicators to tell who is foreign born. Only those who are foreign born are processed through 287(g) when they reach the jail. That incentive will inevitably, and unfairly, lead officers to consider race, ethnicity, and language ability in their arrest decisions. Again, examples come from arrest documents themselves. [Hernandez arrest docs.]

This hits close to home for me. I am the child of Cuban immigrants. My first language was Spanish, and all of my older relatives, including my father, speak English with a heavy Spanish accent. I don’t want those kinds of characteristics – skin color, national origin, and English proficiency – to be the difference between one of us driving home with a ticket, and spending a night in jail.

II. Second, I am concerned about how 287(g) affects the people who are arrested. In this room, I’m sure we have a number of different perspectives about immigration policy. So let’s leave that element out of the discussion. Let’s focus just on those who are arrested, taken to the jail, screened under 287(g), and who are in fact legally in the US. According to the Sherriff’s stats, 3,100 people (roughly 1/3 of those screened through 287(g)) were found to be lawfully present in the US.

The Tennessean analyzed the 287(g) data and found that 80% of those placed in deportation had committed only misdemeanors and 50% were initially stopped only for traffic violations like a broken tail light. So it appears that more than 1500 people who are legally in the US have been arrested based initially on a traffic offense and taken to jail, rather than being issued a citation, on suspicion of their immigration status. How must it make those 1500 Nashvillians or visitors feel to know that their race, ethnicity, or lack of English proficiency caused them to be hauled off to jail when someone of a different color, race, or national origin would have driven home with a citation. I don’t think that is the kind of message we want to send about Nashville and our country to our newly arrived immigrants, many of whom are fleeing government repression and abuses in their home countries. It is also the wrong message to send immigrants in our community because it will make them reluctant to interact with the police, including reporting when they are victims of crimes, which allows violent criminals to remain on the streets to victimize others.

But if those considerations aren’t enough, let me also put it in economic terms. Nissan North America’s headquarters are in the Nashville area, and, according to Automotive Magazine, Nissan is one of the top selling auto manufacturers in Mexico. How long will it be until a Nissan executive from Mexico has a rental car with a faulty blinker, and winds up spending the night in the Metro jail because of it. Maybe Juana Villegas’ story in the NYT did not make enough waves locally to get people worried about 287(g), but what happens when the story of the Nissan executive lands in the Wall Street Journal, or in the Mexico City paper where Nissan is fighting to outsell its rivals?

III. Finally, I am also concerned about 287(g) because there is no oversight in place to address these problems. When it comes to problems with 287(g), each participant in this process assumes that others are correcting the problems, with the result that no one takes ultimate responsibility. The police department points out that its officers’ arrest decisions are reviewed by commissioners, and therefore the officers’ decisions are not the last word. And the police dep’t is CORRECT. The commissioners, however, say they must rely on the judgment of the officers in the field, and should not be second-guessing the kinds of judgments that police officers have to make in assessing a suspect’s dangerousness. And the commissioners are CORRECT. The sheriff wipes his hands of all of it, saying that his officers don’t decide who gets presented to the jail, and that he screens everyone who comes through who is foreign born. And he is also CORRECT.

Over the past two years, the 287(g) program has come under intense scrutiny and many changes and improvements have been suggested. But they have always been met with this game of hot potato. Each of these constituencies claims that its role is being checked by another, and everyone refuses to take ultimate responsibility for the harmful effects of 287(g). The result is that there is no place to go to communicate problems and no mechanism to address those problems. There has been no oversight, and oversight is desperately needed.

IV. The good news is that there is a solution to the problems with 287(g), and it makes 287(g) one of those rare issues of public policy where the opposing interests can be completely satisfied; where the expressed aims of the Sherriff’s Department and the concerns of the immigrant community can be fully reconciled.

The sheriff says this program “has always been about public safety.” He touts the fact that 287(g) has identified 100 known gang members for deportation. And to that I say, “job well done.” And if the Sheriff wants to identify for deportation those people who have been arrested for murder, or drug dealing, or kidnapping, or any other violent or serious crime, he would have my full support.

The maddening thing about 287(g) is that we can accomplish those goals without also lumping in the thousands of people whose entry point to 287(g) is fishing without a license, driving with a burned out brake lamp, or failing to use their turn signal. We can accomplish these goals without injuring public safety by driving a large segment of our community away from police protection. The answer is simple: make a list of real crimes committed by people who are threats to public safety, and use 287(g) to screen people who are arrested for those crimes. Make a separate list of misdemeanors that no one could consider to be related to any commonsense understanding of public safety and don’t screen people who are arrested for those crimes.

I hope that the concept of screening with a true public safety focus will be part of your debate, the Council’s debate, and the public debate on 287(g).


In conclusion, I must tell you that I do not approach this issue as a matter of theoretical abstraction. As I speak with you tonight, I am thinking about a meal I shared with some friends several months ago. They are a hard-working couple who are not much older that I am. They own their home. They have two children. The oldest is a boy and a senior in high school. He is thinking about joining the Army when he graduates so he can fight for his country and take advantage of the many opportunities available in military service.

My friends are also illegal immigrants. They used to work different places, but now they clean houses together so they never have to leave each other’s side. They told me that every morning before they get in their car they pray that they will be able to come back to their house that night. They pray that their tail lights stay functioning, that they don’t speed inadvertently, and that they do not get involved in an accident. They stay with each other all day because they cannot bear the thought that one of them will forget to use a turn signal, and that he or she will simply not come home that night, torn apart from the rest of the family.

Their pain will touch some of you and not others. I understand that is a consequence of the political climate in which we currently find ourselves. But it hurts me to live in a community where decent, honest, hard-working people are forced to live like that. It would be easier to stomach if this were a necessary evil, if there was no good way under 287(g) to separate my friends from gang members, murderers, and rapists. But as I said, it is easy to do that. The sheriff can do that. You can do that.

In my law practice, I am accustomed to representing powerful interests. But I am not here advocating for powerful interests, and I ask you to consider whether your position calls you to do the same. I will freely admit that there is little political upside for you to take a proactive approach on 287(g). I am asking you to advocate for people who do not vote, do not take part in the political process, and remain largely nameless and powerless in our society. I hope you will have the courage to ask tough questions, and require answers to those questions, as you consider whether to reauthorize the 287(g) program. I hope that ultimately you will have the courage to either demand public-safety screening or say “no” to 287(g) in its current form.

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