I-300 is out to put the brakes on illegal immigration

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The real terrors we should fear this Halloween aren't werewolves, ghosts or zombies, Dan Hayes insists, but people operating cars without driver's licenses.

"It's a complete public menace," he proclaims. Hayes, a property manager who lives in unincorporated Jefferson County, has bone-chilling tales of unlicensed drivers causing fatal accidents and escaping, unlicensed drivers getting into wrecks with insured cars and bankrupting their victims with medical and repair bills, unlicensed drivers violating traffic laws only to be let off by the courts, unlicensed drivers committing all kinds of crimes. Most of his tales are anecdotal, gathered through years of personal observation and discussions with others. "You just keep reading in the paper how many people are getting killed," he explains.

But Hayes isn't concerned with just any unlicensed driver. Speak with him for five minutes, and it becomes clear which drivers he's really talking about: "It's all these illegals driving around with no identification."


Dan Hayes

Driving around Denver, in particular. "Denver is the mecca of all these problems," he says. "All our politicians want is cheap labor. They roll out the red carpet for them. In the case of Denver, which I think clearly is a sanctuary city, all they're getting is a small court fine and are allowed to walk out the door. If they don't give police an ID, no one can prove they're an illegal alien. So these people get off the hook. It's unfair!"

Although enforcing federal immigration laws is not the jurisdiction of municipal police, enforcing traffic laws is. That's what inspired Hayes to come up with a way to get these drivers off the road — if not out of the country altogether. "All you can do is take their car away and put the burden of proof on the driver," he explains. "If you can't come in and prove you're a citizen with a license, then you should lose your car."

That's the theory behind Initiative 100, which Hayes and a small group of supporters were able to petition onto the Denver ballot in August 2008. The proposal directed Denver police to immediately impound and place a $2,500 bond on any vehicle being operated by an unlicensed driver or anyone who "is an illegal alien or may be reasonably suspected of being an illegal alien." Despite being officially — and often vehemently — opposed by Mayor John Hickenlooper, the majority of the Denver City Council, the Rocky Mountain News and the Denver Post, as well as several large religious and community organizations, Hayes's controversial proposal passed with 53.5 percent of the vote.

"The law on its face was completely nebulous," says Assistant City Attorney David Broadwell. "They have this twin agenda of talking about illegal immigration and talking about unlicensed driving in general. And that's the seed of the mass confusion about this measure. Is it an illegal-immigration measure, or is it an unlicensed-driving measure?"

Before Denver police started enforcing I-100 last December, Broadwell's office had issued a legal analysis that determined that the language of the law still allowed officers to have "discretionary authority" when deciding whether or not to tow a particular car. Even with such authority, though, police have already seized and impounded an estimated 6,900 cars operated by unlicensed drivers this year.

The vague and overarching language of the initiative — the only one like it in the nation — has led to a costly bureaucratic and legal mess both within Denver County Court and at the city's vehicle impound lot, Broadwell and other city officials say.

And that mess could soon get worse.

Hayes and his Future Denver Committee have managed to place another measure on Denver's November 3 ballot, which was mailed out to voters earlier this month. The measure has the city's political and law-enforcement establishment pushing the panic button; one official calls 300 "I-100 with fangs." It proposes to amend the wording of Hayes's earlier initiative so that police would be "hereby commanded" to "immediately" impound a car driven by any person who can't show a valid license.

"Even if I was the valid driver, police would lose all discretion and would be forced to impound my car," says Carlos Valverde of the Colorado Progressive Coalition. "People forget their wallet and purses at home all the time. I forget my wallet at least once a week." I-300 would allow police to consider proof of insurance with "convincing corroborating identification" as reason to refrain from towing a car — but it fails to define what, exactly, might be considered "convincing corroborating identification."

"I would keep a Costco card in the glove box," Hayes recommends. "Something with a photo on it, like a gym membership."

The CPC is one of a dozen groups currently campaigning against the measure, including the Colorado Association of Chiefs of Police, the Anti-Defamation League, the Denver Area Labor Federation, the Interfaith Alliance, the Metro Organizations for People and even the Libertarian Party of Colorado. Nearly every Denver politician — everyone from state senators to school-board candidates — has declared his opposition; Hickenlooper even recorded a robocall, urging voters to reject the "deceptive" measure that could cost the city $1.2 million in "unintended costs." (Listen to the robocall here). Earlier this month, Denver City Council members overwhelmingly passed a proclamation denouncing I-300.

Jeanne Faatz, the lone city council representative to vote against the proclamation, says she decided to support Hayes's earlier impound measure after asking police in her southwest Denver district how many unlicensed drivers they pull over regularly. "They said they felt that about four out of ten of the drivers they pull over were unlicensed," she says. "So for what it's worth, I do feel that it's an indication that it's a serious problem, when you have people who have multiple DUIs, their license has been taken away from them, and they're still driving. Or people simply have not gotten licenses, or people are not entitled to get licenses and therefore are not entitled to drive here. So I'm willing to try it, because it seems to me that whatever we're doing now isn't working, and it's not fair to those who follow the rules."

An opposition group called Coloradans for Safe Communities has spent more than $40,000 setting up the website www.VoteNoOnImpound.com, running phone banks and e-mailing residents, encouraging them to vote down the tougher impound law. To counter that, Hayes has the bare-bones www.FutureDenver.com, which argues that voters have to strengthen the current ordinance in order to protect innocent drivers from receiving a "catastrophic injury at the hand of an unlicensed driver."

He's poured $11,000 of his own money into his campaign for I-300, which so far has been a lonely one. "No ones come out officially," he says. Even the anti-illegal-immigration Minutemen are "afraid to get too involved with it. They're for it, but they don't want to come out for it officially. It's not good publicity for any of us."

But there's one group Hayes is certain he can count on: "The citizens of Denver voted it in by 54 percent last year."

On a cold, gray morning, dozens of men and women gather around a beat-up red car in a large, fenced lot on the edge of north Denver's industrial district. "1998 Ford Escort. 1998 Ford Escort. Giggdy-five-g-g-g-g-five, g-five. Giggdy-three-g-g-g-three-fifty. Giggdy-three-fifty-g-g-g-two-and-a-half," blares a voice from the overhead speakers. The men and women — mostly men — poke their heads through the open doors and broken side window of the Escort, searching for clues that might tell them whether this car is the lemon it appears — or one of the few diamonds-in-the-rough that can be found at the city's bi-weekly auction of impounded vehicles.

As soon as the auctioneer's voice yells "Sold!," the crowd shifts its attention to the next car — one of several hundred that will be sold off in rapid succession by Schur Success Auctions, which has been running the city's impound sales for more than 25 years.

Rich Schur, who owns the company with his wife, is sitting inside a fifteen-foot-tall, custom-built auction topper mounted on the bed of a truck that slowly makes its way across the lot as each car is sold. "One thing I love about the Denver impound, it's just clockwork," says Schur. "Every other Wednesday we're there, rain, shine or snow, and there's always more cars. The sheriff's department probably has a year's supply back there."

The buyers range from professional scrap-metal scroungers known as "crushers" to used-car dealers and wholesalers to amateurs just looking for a fast buck. "Every car is sold. There's no 'Gee, we're not selling it because we didn't get enough money for it. It goes," he says, adding that an average of 140 vehicles were sold at each auction last year.

Since the passage of I-100, though, the number of cars going to auction each time regularly hits 200.

According to Gary Wilson, a division chief with the Denver Sheriff's Department, the impound law has filled the city's lots to the breaking point. "There's just not enough room for all of these cars," he says. Of the 5,839 vehicles impounded in the first four months of 2009, over 2,300 were seized in connection with I-100. And when a car has been in impound for more than 30 days, the city can legally auction it off — which Denver's been doing with increasing frequency.

"And the city's got no choice," says Schur. "They've got to move them because there's no place to put the new ones. If this initiative passes and police have no discretion whatsoever, that sale is going to be like a zoo every time."

That doesn't sound like a bad deal to Shannon Johnson, a muscular guy in a rugby shirt who's carefully eyeballing cars. Every two weeks for the past three months, the 36-year-old construction worker has been driving from his home in Vail to attend the city's impound auction. So far he's bought six vehicles, all of which he fixed up and then sold on Craigslist.

"I've been pretty lucky," Johnson says. "The worst thing I've had to do is put tires on them. There's a little money in it; you can make a couple thousand dollars a month in this day and age. I'm in construction and it's been slow, which is why I started doing this. So I can put five or seven vehicles in my name, five or seven in my wife's name, just to make a little extra income, even if it's only $20,000 a year. Money's money, you know."

Johnson's particularly interested in one car today. "1999 Toyota Sonoma pickup with a topper," announces the auctioneer. "That's a pretty good little truck and a light bar. Start this one along, ladies and gentleman: $2,500. Twenty-five. I'm gonna get twenty five-gonna-get-twenty-five, gonna-get-twenty-five-hundred. $1,000. Gonna-get-one-thousand."

The city impounds cars for a variety of reasons: for a booting bill for excessive parking tickets that isn't paid off by the deadline, for apparent abandonment, or if a driver was arrested. And since the vehicles are sold "as is," buyers have no clue if they will even start. Cars that were abandoned before they were impounded often have major mechanical problems. Those that were operating when they were impounded by police — either because the driver was arrested or under the I-100 law — are much more likely to be in better condition, and Johnson is most interested in those. But he has competition.

As it turns out, a significant number of the cars bought from the Denver impound auction are sent south of the border — to the country that their drivers came from.

"We guess maybe 15 or 20 percent of the cars are bought specifically to export to parts of Mexico," says Schur. Since no title work is done at the impound lot, there's no way to know for sure — but Schur has reached this conclusion after years of working with a sizable Spanish-speaking customer base. "There's nothing that prohibits it; it's fair market," he notes. "If you want to take it out of the country, you've just got to split the cost of export versus what you can make in revenue."

The bidding on the Sonoma increases to $1,500. It becomes a back-and-forth play of nods and hand gestures between Johnson and a Latino man in a tan jacket.

"Gonna-get-seventeen-fifty, gonna-get-eighteen-gonna-get-nineteen," says the auctioneer. "Gonna-get-two-gonna-get-twenty-one-gonna-get-twenty-one. Got it here-gonna-get-twenty-three-twenty-three."

Johnson finally wins at $2,900 and heads to the auctioneer stand to get the paperwork. The man in the tan jacket declines to give his name but says the car would have been a good deal at the right price. "My brother, he fixes these," he says in broken English.

Of the 6,900 vehicles that the city estimates it will impound this year under I-100, fewer than half will be granted a reprieve from auction, as a result of their owners having posted the $2,500 bond stipulated in the ordinance. The city will keep the bond for one year, after which it will be returned — unless the car is again stopped with an unlicensed driver behind the wheel. If that happens, the city gets to keep the money.

While bonds are typically posted to ensure that someone shows up for a court date, these I-100 bonds deal with property and performance, essentially ensuring that the property will not be used in a certain way.

"This kind of bonding procedure is a completely unique kind of bond," says Broadwell. "Nothing like it exists anywhere else."

It's so unique that when Denver first started enforcing I-100, no bail bondsmen would back the bonds, so that drivers had to pay the entire $2,500 in cash if they wanted their cars. Since then, a few businesses along "Bail Bonds Row" near Denver Police Department headquarters have begun to issue "car impound bonds" at a rate of around $400, but the process is extremely time-consuming for city staff, says Matt McConville, administrator for Denver County Court. While a typical cash bond takes five minutes, a car impound bond can take between 45 and 90 minutes. Even the driver's-license verifications are time-consuming, since city staffers must sit on hold with the Department of Motor Vehicles.

To deal with the requirements of I-100, the city has had to add two full-time employees, McConville says, and in order to pay for them, the court has asked to increase the bond-processing fee from $30 to $75. Meanwhile, in order to pay for more impound lots, the city is increasing the "land acquisition fee" attached to the bonds from $100 to $200. That means that an owner has to come up with close to $3,000 to retrieve an impounded car.

In June, Denver City Council exempted lien-holders, rental-car companies and auto-theft victims from the hefty bond requirements connected to I-100. But otherwise, anyone who has a vehicle seized under the ordinance must pay up or surrender the car — even an American citizen who simply let his license expire. Someone like Iraqi war veteran Brian Furman, for example, whose case became a cause célèbre on local talk radio in May after his car was impounded and nearly auctioned off by the city.

While California has a similar state law authorizing police to impound cars driven by unlicensed drivers, the law lacks I-100's language specifically targeting illegal immigrants and its hefty bonding requirements. Some California cities have used the state law to adopt thirty-day mandatory impounds, while others have actually chosen not to enforce the law at all, citing a 2005 federal court ruling that found unwarranted auto seizures to be unconstitutional unless a clear public safety threat could be shown. And in any case, California's law still allows police officers to use their own discretion.

Denver's impound facility comprises three lots on roughly twenty acres of land. Two of the city's lots are reserved for vehicles that were involved in a crime and are under "police holds" or haven't yet exhausted the month limit. Once a car is flagged for auction, it's moved to the third lot, which fills up and then empties every two weeks. In previous years, the number of cars in impound averaged between 1,500 and 1,600 vehicles. But in less than two months after I-100 took effect last December, the number of cars towed to the lots had filled them past the total capacity of 2,200, forcing the sheriff's department to declare "Emergency Tow Status," which only allows for cars involved in a serious crime to be placed in the lots, with a moratorium on all other towing action until the next auction.

When Wilson oversaw the impound facility from 2000 to 2003, he only implemented Emergency Tow Status twice, "and it was only for a couple days at a time," he says. But over the past year, Emergency Tow Status has been imposed 64 times.

And if the sheriff's department can't obtain more land to hold all of these additional vehicles, that status could be imposed more frequently. "Currently, we are landlocked," Wilson says.

But what the city does with all those additional impounded vehicles doesn't concern Hayes. "We just want the city to do what the voters told them to do," he says.

A DPD impact study estimates that I-300 would increase the number of tows ordered by police to 33,892 per year — a 115 percent increase. Since ordering a tow and then waiting for a truck to arrive takes an officer "out of service" for roughly an hour, during which the officer is unable to respond to other calls, the department predicts that it will take five more officers and cost upwards of $1.7 million to enforce I-300.

"If this passes, Chief Whitman is going to have to find these bodies just to maintain the levels of calls to service that he has now," says Dan McCoy, the DPD sergeant who authored the study. "This could mean killing special programs like neighborhood policing, or pulling from an already over-burdened detective bureau, meaning less cops to work on burglaries or homicides."

The law could also have an impact on vehicles impounded as evidence.

"The crux of this law really deals with the discretion of the officer to tow the vehicle or not," explains Wilson. "And if that discretion is removed, it forces us immediately to reset the priorities on which vehicles come in the lot and which don't." Since no law requires that evidentiary vehicles be placed in the impound lot, he continues, "I-300 vehicles will get a higher priority than a vehicle that was involved in a homicide, a vehicle that was involved in a sexual assault."

Dan Hayes attempted to get measures similar to I-300 on ballots in both Aurora and Lakewood this fall, but the petitions he turned in to both cities were challenged by attorneys representing Coloradans for Safe Communities. An Aurora hearing officer determined that the petition sheets were presented incorrectly and threw out the measure there; Lakewood has postponed its ballot until the issue is resolved.

On October 21, Hayes appeared in Denver District Court at a hearing to determine whether I-300 could be thrown out in Denver, too. Mark Grueskin, the attorney for the plaintiffs, argued that the petitions were invalid because the people Hayes had hired to collect signatures had neglected to have people include the room numbers at the Denver hotel where they were staying.

"They want to change the ordinance for the City and County of Denver," Grueskin told Judge Brian Whitney. "They should have at least tried to understand election requirements."

Whitney's ruling is expected this week. If the judge agrees that the petitions should be tossed, the I-300 question on Denver's all-mail ballot won't be counted.

"They don't want the people to express themselves because they don't want to actually have to enforce our nation's immigration laws," Hayes says. "They know that illegal aliens have higher crime rates and cause more burglaries. I do believe in the long run that once this law is enforced for two or three years, we're going to see a reduction in crime."

The man behind these impound ordinances is a self-described "progressive" who voted for Barack Obama and supports universal health care. Before putting both I-100 and I-300 on the ballot, Hayes joined with local Green Party leadership to push for anti-sprawl measures targeting "greedy developers and corrupt politicians," he says.

In 2007, Hayes, who first became concerned about illegal immigration in the mid-'80s, got involved with Waldo Benavidez, a Democratic Party organizer coordinating a loose network of citizens interested in pushing a measure that would require that cars driven by illegal aliens be impounded. After Benavidez passed away, Hayes pushed on with I-100. Its passage in August seemed particularly prescient in September 2008, when Francis Hernandez crashed his car into another car that ran into an Aurora ice cream shop, killing three people. It was later discovered that Hernandez, who had been living in the country illegally, had been previously pulled over by police in several cities, including Denver.

"So here's this guy, they've let him go and let him go, and finally he kills three people," says Hayes. "So who's fault is all that? I don't think he'd have been here if he'd had his car taken away. He would've moved somewhere else."

But for Councilwoman Faatz, Hayes's most prominent supporter, all the references to illegal aliens are unnecessary. "I personally would not have put that in there had I been drafting that, because I think you get at the same issue by keeping it without referencing illegal aliens," she says.

No matter how much Hayes insists that his proposals are simply designed to deal with crime, though, his critics worry that they'll lead to racial profiling. "If someone's driving in a car, it's really hard to tell if they're undocumented," the Colorado Progressive Coalition's Valverde says. "But if you pull someone over, what do police usually look for when they're looking for an undocumented person? Someone who doesn't speak English fluently, maybe is driving a certain type of vehicle."

"I'm not racist," Hayes insists, as he goes for a cup of decaf after his day in court. "I just want to get unlicensed drivers off the road. The law should apply to everyone, regardless of circumstances."

He fishes around in his jacket pocket for his wallet, then checks his pants pockets and finds it. Good thing he didn't forget it: It might have been a scary trip back to Jefferson County without ID.

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