Metropolitan News-Enterprise


Thursday, October 23, 2008


Page 1


Court Upholds Requirement to Report Suspected Illegal Aliens


By STEVEN M. ELLIS, Staff Writer


Federal immigration law does not preempt California’s requirement that police notify Immigration and Customs Enforcement if they have reason to believe a person arrested for certain drug offenses may not be a U.S. citizen, the First District Court of Appeal held yesterday.

Reversing a trial judge’s order dismissing a suit to force the San Francisco Police Department to comply with the state law, Div. Two ruled that the statute requiring notification in the event of an arrest for one of 14 enumerated drug offenses was not per se preempted because it did not require state or local officials to determine who should or should not be admitted into the country, or define the conditions under which a legal entrant could remain.

Taxpayer and San Francisco resident Charles Fonseca sued the San Francisco Police Department, its chief, Heather Fong, and members of the city’s Police Commission last year, accusing the department of disregarding Health and Safety Code Sec. 11369’s mandate and seeking a writ forcing the department’s compliance.

Federal Study

Based primarily on a 2005 study by the federal Government Accountability Office—which concluded that 20 percent of aliens incarcerated during 2003 had been convicted of drug offenses, 90 percent of people charged with unlawfully reentering the United States had been previously arrested, and 50 percent of that group had been arrested for violent or drug-related offenses—Fonseca argued that compliance would decrease crime as well as expenditures related to incarceration.

The defendants demurred, claiming that the statute could not create a ministerial duty to notify federal authorities because it impermissibly invaded an area of regulation preempted by exclusive federal authority, and San Francisco Superior Court Judge Peter J. Busch agreed and dismissed the petition.

However, Presiding Justice J. Anthony Kline wrote on appeal that the statute was not preempted under the three-part test set forth by the U.S. Supreme Court in De Canas v. Bica (1976) 424 U.S. 351, in which the high court upheld a California statute prohibiting employers from knowingly employing aliens not lawfully residing in the United States.

Not Regulation

Examining whether Sec. 11369 constituted an attempted “regulation of immigration,” Kline concluded it was not because the only duty imposed required notification upon “reason to believe,” which was significantly different than the duty under Proposition 187 to verify an arrestee’s status, which the U.S. District Court for the Central District of California found preempted in League of United Latin American Citizens v. Wilson (1995) 908 F. Supp. 755.

Instead, Kline said, the duty was more like that upheld by the California Court of Appeal in Gates v. Superior Court (1987) 193 Cal.App.3d 205, where the court ruled that a special order by the Los Angeles Police Department directing officers to contact federal authorities only when a person arrested on state charges was suspected of being in the country unlawfully was not preempted.

“Sec. 11369 does not oblige state or local officials to determine ‘what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization’…, and the statute is therefore not an impermissible state regulation of immigration,” he wrote.

Kline similarly rejected the defendants’ contention that the statute could not plausibly be deemed to serve any other purpose, noting that it resulted from work by a Senate committee charged in 1951 with studying how to deal with the “deliberate exploitation of naïve boys and girls by drug traffickers” from across the border who aimed to “open up a new market by enslaving a huge new crop of addicts.”

He explained:

“Sec. 11369 evidently reflects a legislative conviction that federal deportation of persons arrested for selling or using narcotics and reasonably believed to be non-citizens could be effectuated with much greater ‘certainty and celerity’ (if federal authorities determined they were unlawfully present in this country) than the prosecution and conviction of such persons for violation of state narcotics laws, and that exposure of such persons to swift imposition of that civil penalty would help ‘stamp out illicit drug traffic’ in California.”

Kline then turned to the remaining prongs of the De Canas test and opined that they compelled a similar result.

Reasoning that Congress, in enacting the Immigration and Naturalization Act, did not intend a “complete ouster” of state power to promulgate statutes pertaining to immigration that did not conflict with the act, and that Sec. 11369 actually furthered—rather than impeded—the act’s purposes, Kline reversed and remanded for proceedings to factually determine whether, as the defendants alternatively claimed, the police department had been in compliance with the statute.

Justices Paul R. Haerle and James R. Lambden joined Kline in his opinion.

The case is Fonseca v. Fong, 08 S.O.S. 5807.


Copyright 2008, Metropolitan News Company