It's 'Against Procedure' for SAPD to Run Background Checks on Smuggling Victims

It's 'Against Procedure' for SAPD to Run Background Checks on Smuggling Victims
SAPD / Facebook
The driver was arrested on December 23. The 11 adults and one minor riding in their semi-truck trailer were unharmed. The trip may have originated in Laredo. The passengers may be from Guatemala.

In the past few days, details surrounding a recent smuggling incident in Northeast San Antonio have slowly come into focus. But what's most remarkable about the case isn't the crime itself — it's how it was handled by the San Antonio Police Department.

Instead of calling U.S. Immigration and Customs Enforcement after arriving on the scene, SAPD Chief William McManus made the executive decision to handle the case at the state level. While it's uncommon for local law enforcement faced with an immigration-related crime to not hand the case over to a federal agency — it's a decision that McManus is allowed to make.

"This call was situational, based on a fairly fluid situation on the scene," he said at a Thursday press conference. "It's not necessarily how every case will be handled going forward."

After bringing the 12 passengers back to police headquarters for questioning, SAPD alerted a local immigrant aid organization to come pick them up — letting the passengers free without any charges or inquiries about their immigration status. The driver, Herbert Alan Nichols, was arrested for breaking a state anti-smuggling law, a case that will land in Bexar Country District Attorney Nico LaHood's chambers instead of a federal courtroom.

Coming in the midst of a national (and local) debate over immigration law and the ability for a city to treat undocumented immigrants like regular citizens, McManus' "situational" decision has already attracted blunt criticism.

Councilman Greg Brockhouse told the Current he believed McManus had “more than enough probable cause” to assume the smuggled immigrants were undocumented — enough to prompt officers to at least run a criminal background check on the dozen, if not call in the feds.

“All I’m asking is that we make sure we’re not releasing a felon into the public,” Brockhouse said. “The policy can’t be on the fly ... based on what the chief feels like doing that day.”

He publicly questioned McManus’s decision in a Friday media release, suggesting the chief had dodged SAPD protocol and calling for an investigation into how the incident was handled.

But McManus didn't let the councilman's comments linger into the weekend. At 5 p.m. Friday, McManus responded to Brockhouses's concerns in an email to the Current.

"I gave no direction to skip or disregard standard protocol or process," McManus wrote. "No background checks or fingerprints were taken of the 12 victims because it is against procedure do so of victims of crime or witnesses to a crime, especially in the context of a human smuggling case."

According to McManus, an agent from U.S. Homeland Security Investigations (HSI) had been notified shortly after the arrest and was present when officers brought the 12 passengers in for questioning.

"At no time did SAPD restrict or prevent the HSI agent from taking custody of the individuals," McManus wrote.

If SAPD had continued to detain the passengers after they were questioned, the city may have faced legal liability, according to McManus.

SAPD's general manual echoes his claims. Under the "Human Trafficking" section (last revised in 2012), it reads: "Human Smuggling cases usually require the response of a federal law enforcement agency," but it doesn't mandate officers contact the feds on the scene. Only in the follow-up part of the investigation is an SAPD officer required to "notify and coordinate with federal authorities and provide assistance as necessary."

Aside from Brockhouse, no other city official has spoken out against McManus's decision. In an email, city spokeswoman Thea Setterbo confirmed that City Manager Sheryl Sculley (who oversees SAPD) "believes the Chief acted appropriately in handling this situation."

Regardless, the uncommon decision to hand this case over to the state has begun to gain national attention, specifically as it contrasts with the other San Antonio smuggling case that made national news this summer. In the July incident — where police found 10 dead, 22 living immigrants packed into the back of an unventilated semi-truck trailer — SAPD called ICE to investigate, not the state. In that case, the surviving passengers were held in a detention center for over a month, and at least two were deported by ICE.

Which, according to local HSI and ICE agents, is standard protocol.

“I can’t recall a situation like this, where the state [or] local chose to use a state statute instead of letting us work the case," said Jerry Robinette, a former special agent in charge of HSI in San Antonio, in an interview with The Intercept. “Look, if this was a car that was driving to the grocery store with two or three illegal aliens, I could understand this situation, but not a tractor trailer."


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