On the September 21 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly falsely asserted that "[b]ecause Denver was then a sanctuary city -- that is it did not report illegals to the feds -- [Jose Luis] Rubi-Nava was released." Rubi-Nava, now a suspect in a recent murder, was arrested by Denver police in April during a traffic stop. O'Reilly further claimed that “the cops had this guy and they let him go because Denver was a sanctuary city.” In fact, the Denver Police Department's Operations Manual explicitly states that “when a suspect believed to be an undocumented immigrant is arrested for other charges, a 'Refer to Immigration' charge will be added to the original charges. Sheriff's Department personnel will then notify the B.I.C.E. [federal Bureau of Immigration and Customs Enforcement] authorities, according to their procedures.” This regulation apparently would have applied to Rubi-Nava's arrest.

O'Reilly made his false assertions about Denver's supposed “sanctuary” policy during an interview with Denver KHOW-AM radio host Dan Caplis, who appeared to agree with O'Reilly's claims. During the interview, O'Reilly suggested that while Denver was a “sanctuary city” in April, it no longer is. Caplis responded that Colorado “passed a law that said, listen, if you pick somebody up, and you have reason to believe they're here illegally, at least call ICE.” That law, enacted shortly after Rubi-Nava's arrest in April, defines “sanctuary” policies as “local government ordinances or policies that prohibit local officials, including peace officers, from communicating or cooperating with federal officials with regard to the immigration status of any person within the state.” As Caplis noted, the law requires that police and sheriff's officials notify ICE if they believe an arrestee is an illegal immigrant. According to the Denver Police Department's handbook, this already was police policy in Denver.

The Rocky Mountain News reported September 21 that Denver police stopped Rubi-Nava on April 21 because the license plates on the car he was driving “came up on a national database as associated with a wanted party.” Officers arrested Rubi-Nava after noticing that the Mexican identification card he presented appeared to be forged. The News reported that, according to the Denver Sheriff's Department, Rubi-Nava spent the night of April 21 “in jail” and that he “was charged April 22 with providing false identification, driving without a valid license and having no proof of insurance.” According to the News, he was “released on his own recognizance” after being charged, and “all three charges were dismissed April 27.”

Media outlets have issued conflicting reports on whether Denver police flagged Rubi-Nava as a suspected illegal immigrant. The News reported, “Denver Police Chief Gerry Whitman said Jose Luis Rubi-Nava was flagged for the attention of immigration officials -- but acknowledged that the paperwork to prove that is no longer available.” Contrary to the News report, The Denver Post reported September 21, “But as is the case when Denver police have no reason to believe someone is in the country illegally, they did not contact Immigration and Customs Enforcement [ICE] agents, said Virginia Quiñones, Denver police spokeswoman.”

But regardless of whether Denver police officials failed to flag Rubi-Nava's immigration status in this particular case, O'Reilly's suggestion that a specific “sanctuary” policy prevented Rubi-Nava from being reported to ICE is false.

The Denver Police Department Operations Manual generally prohibits police officers from taking “enforcement action against a person solely because he/she is suspected of being an undocumented immigrant” [emphasis added]. However, the manual also states that an undocumented immigrant who, like Rubi-Nava, is being arrested for other charges shall receive a “Refer to Immigration” charge and that the Denver Sheriff's Department shall then notify the federal Bureau of Immigration and Customs Enforcement (BICE, or ICE):

104.5 2/3b: Generally, officers will not detain, arrest or take enforcement action against a person solely because he/she is suspected of being an undocumented immigrant.

[...]

104.5 2/3c: However, when a suspect believed to be an undocumented immigrant is arrested for other charges, a 'Refer to Immigration' charge will be added to the original charges. Sheriff's Department personnel will then notify the B.I.C.E. authorities, according to their procedures.

The current version of the pertinent section of the manual -- “Arrest/Detention of Foreign Nationals” -- most recently was revised in July 2006. A previous version of the section (maintained on the AmericanBorderSecurity.net website, which calls itself “the web's most informative site on anti-illegal alien news and events”) was revised in July 2005 and presumably was in effect at the time of Rubi-Nava's April 2006 arrest. The two versions of the section are substantively the same, with the only difference being that the earlier version identifies the federal agency that the Sheriff's Department should notify of the arrest of a suspected illegal immigrant as the Immigration and Naturalization Service (INS). Upon its establishment as part of the Department of Homeland Security in March 2003, ICE took over the law enforcement functions of the INS.

Colorado Media Matters has noted numerous instances (see here, here, here, here, here and here) in which Colorado media figures and Republican officeholders and candidates have sought to perpetuate the myth that various Colorado cities are “sanctuary cities.”

As Colorado Media Matters has noted, a 2004 report by the U.S. Congressional Research Service -- Congress' non-partisan research and analysis arm -- identified “sanctuary cities” as those that have adopted “a 'don't ask-don't tell' policy where they don't require their employees, including law enforcement officers, to report to federal officials aliens who may be illegally present in the country.” The report's list of U.S. "[c]ities and counties currently that have sanctuary policies" did not include any in Colorado.

From the September 21 broadcast on the Fox News Channel of The O'Reilly Factor:

O'REILLY: “Unresolved Problem” segment tonight, another brutal crime allegedly committed by an illegal alien. In Denver, police chief Gerry Whitman says that 36-year-old Jose Rubi-Nava, an illegal immigrant from Mexico, was stopped by police last April and charged with driving without a valid license.

Because Denver was then a sanctuary city -- that is, it did not report illegals to the feds -- Rubi-Nava was released. And now he's charged with the murder of a young woman, who police say was dragged behind Rubi- Nava's car for a mile. Her body was unrecognizable.

Joining us now from Denver, Dan Caplis, host of a KHOW radio program. This is almost beyond the pale. And again, the reason we report this, these crimes could be committed by Americans. They have in the past. But the cops had this guy, and they let him go because Denver was a sanctuary city. So what do you know about this guy, and what happened?

CAPLIS: Oh, Bill, I'll tell you, this is one of the worst we've seen. You're right. It's one of the worst torture killings we've ever seen. And it's driving people crazy, as you say, that it was committed by a guy who was apparently here illegally and had been picked up by the police and released.

[...]

O'REILLY: All right. We gotta put “alleged” in front of the heinous torture killer because he hasn't been convicted yet.

Now, why did Denver change? As we mentioned, it was a sanctuary city last April. That is why the guy wasn't turned over to the feds. I don't know why the judge -- and we're going to check that out. I'm sure you will too, Dan, on your radio program. We're going to check out why this judge let him walk out of there. I think this is a good story. But why did Denver change from being a sanctuary city?

CAPLIS: Yes; the state forced them to.

O'REILLY: Oh.

CAPLIS: The state passed a law that said listen, if you pick somebody up, and you have reason to believe they're here illegally, at least call ICE.

Now Denver police say they called ICE on this Rubi-Nava guy in April. ICE says we never heard from them.