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A Justice Majority Allowed This Murderer To Roam Free

The opinions expressed by columnists are their own and do not necessarily represent the views of

It was 19 years ago, when Hoa Quang Ha drove up to a Chinese restaurant in San Jose, California, with his accomplice, Binh Thai Luc, who had come to the United States from Vietnam.

Luc got out of the car, went into the restaurant, and made a take-out order.

When the man at the counter turned around to use a cash register -- as the San Francisco Chronicle would later report in a story published on March 28, 2012 -- Luc stuck a gun in his back.

"Brother, we are here to rob," Luc said.

Luc and Ha initially got away with that crime.

But three weeks later, they tried another one.

Ha again drove the getaway car. This time, as reported by the Chronicle, Luc entered an electronics store and pulled a gun on the owner.

The owner later testified, the Chronicle reported, that Luc told him: "If you move, I will kill you."

But the courageous owner did move, managing to escape from the store and call for the police.

"Luc was convicted in Santa Clara County Superior Court of attempted robbery, robbery and two counts of assault with a firearm," the Chronicle reported in its March 28, 2012 story. "He was sentenced to 11 years and four months, of which he served eight years."

"Ha, convicted of both crimes as a 'three strikes and you're out felon,' is serving 25 years to life," the Chronicle said.

When Luc was released from San Quentin prison in 2006, he was ordered deported and Immigration and Customs Enforcement attempted to send him back to Vietnam. Vietnam, however, would not take him -- and under the terms of a 2001 Supreme Court opinion, ICE could not detain him indefinitely.

"We had to follow the Supreme Court ruling," then-ICE Deputy Press Secretary Gillian Christensen told the Chronicle in a story published on March 27, 2012.

The case in question was Zadvydas v. Davis.

This was a 5-4 decision. Justice Stephen Breyer wrote the majority opinion joined by John Paul Stevens, Sandra Day O'Connor, David Souter and Ruth Bader Ginsburg. Chief Justice William Rehnquist dissented, as did Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy.

At issue was straightforward language in the Immigration and Nationality Act. It says: "An alien ordered removed...who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the [90-day] removal period and, if released, shall be subject to the terms of supervision in paragraph (3)."

Justice Antonin Scalia saw nothing unconstitutional in giving the attorney general discretion to detain a criminal alien determined to be a risk to the American people.

"A criminal alien under final order of removal who allegedly will not be accepted by any other country in the reasonably foreseeable future claims a constitutional right of supervised release in the United States," Scalia said, summarizing the case, in a dissent joined by Justice Thomas.

"This claim can be repackaged as freedom from 'physical restraint' or freedom from 'indefinite detention,' but it is at bottom a claimed right of release into this country by an individual who concededly has no legal right to be here," Scalia wrote. "There is no such constitutional right."

Writing for the majority, Breyer declared that 6 months was generally the longest the government should be able to detain an alien under a deportation order.

"Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute," wrote Breyer. "In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon violation of those conditions."

Kennedy argued the majority's opinion rewrote the law, put Americans at risk, and took foreign regimes off the hook for their nationals who commit crimes in the United States.

"Under the majority's view, however, it appears the alien must be released in six months even if presenting a real danger to the community," Kennedy wrote.

"The risk to the community posed by a removable alien is a function of a variety of circumstances," Kennedy said, "circumstances that do not diminish just because the alien cannot be deported within some foreseeable time."

"The result of the court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community," said Kennedy.

"If their own nationals are now at large in the United States," he said, "the nation of origin may ignore or disclaim responsibility to accept their return."

Eleven years after this 5-4 ruling -- on March 23, 2012 -- a 12-year-old girl walked into the home of the Lei family in San Francisco.

As later reported by the Chronicle, she came running back out crying: "Mommy, bodies! Bodies!"

Five murdered members of the family were inside.

A San Francisco jury on Monday convicted the un-detained Binh Thai Luc of killing them all.

Unlike the Supreme Court, the jury was not divided.

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