Fonseca v. Fong

Opinion

Section 11369 of the Health and Safety Code (Section 11369) states that “[w]hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses^[1] ] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.”^[2]

Respondents demurred to the petition, claiming appellant has not and cannot state a cause of action inasmuch as Section 11369 is an unlawful state immigration law per se preempted by the exclusivity of the federal government’s constitutional power to regulate in this area. After issuing an order agreeing with respondents that the statute was per se preempted and sustaining the demurrer without leave to amend, the trial court dismissed the petition and entered judgment in favor of respondents.

We shall reverse the judgment and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

On March 21, 2007, prior to the commencement of this action, appellant’s counsel filed a request under the California Public Records Act (Gov. Code, § 6250 et seq.) seeking, among other things, records or other documentation indicating (1) the number of persons arrested by the SFPD for violations of the 14 drug offenses specified in Section 11369 during the past five years, (2) the number of such arrestees bom outside the United States or otherwise suspected of being foreign nationals, (3) the number of SFPD contacts with federal immigration authorities regarding such arrestees, and (4) “any and all written policies, manuals or any other form of documentation” indicating the SFPD’s training of officers for compliance with Section 11369 during the past five years. A representative of the SFPD responded in writing that the requested information could not be provided because the “SFPD does not track incidents in the manner you request.”^[3]

The petition, which contains but one cause of action and seeks a writ of ordinary mandate (Code Civ. Proc., §§ 1085, 526a), was filed on May 4, 2007. Its chief allegation, that respondents and the SFPD unlawfully “disregard” Section 11369, is primarily based on a 2005 study by the federal Government Accountability Office (GAO)^[4] and a 2007 report of the United

Appellant’s claim that the SFPD fails to comply with Section 11369 also rests on the statement in the 2007 DOJ report that the San Francisco Field Office of Immigration and Customs Enforcement (ICE), a branch of the United States Department of Homeland Security, “has encountered difficulties in its attempt to expand the Criminal Alien Program (CAP)” in San Francisco due to the fact that administrators of the San Francisco County Jail “appear to have implemented a ‘bare minimum of cooperation with ICE and the CAP to ensure they are compliant with state rules and the SCAAP regulations’ ” issued by DOJ. (DOJ Audit Rep. 07-07, supra, p. 10.)^[6]

Respondents demurred to the petition on the ground that Section 11369 cannot create the ministerial duty to notify the appropriate federal agency that it has reason to believe an arrestee may not be a citizen because the statute impermissibly invades an area of regulation within and preempted by exclusive federal authority. Although the demurrer effectively concedes the truth of appellant’s allegation that the SFPD does not comply with Section 11369, and our review must assume the truth of all facts properly pleaded by appellant (Evans v. City of Berkeley (2006) 38 Cal.4th 1 , 6 [ 40 Cal.Rptr.3d 205 , 129 P.3d 394 ]), respondents alternatively assert the separate defense that the SFPD complies with Section 11369.^[8] The trial court found it unnecessary to address respondents’ alternative argument because it found that Section 11369 was

The De Canas court established a three-part test for determining whether a state statute relating to immigration is preempted by federal law. The initial inquiry is whether the state statute constitutes an attempted “regulation of immigration” that is per se preempted because of the exclusivity of federal power to regulate in this area under the United States Constitution. (De Canas, supra, 424 U.S. at p. 355.) If this is not the case, the statute may nevertheless be preempted under the second test, which is whether it was the “ ‘ “clear and manifest purpose of Congress” ’ ” to effect a “complete ouster of state power—including state power to promulgate laws not in conflict with federal laws” (id. at p. 357) with respect to the subject matter of the state statute—because Congress intended to “ ‘occupy the field’ ” to which the state statute applies (id. at p. 357, fn. 5). Where the statute does not attempt to regulate immigration and applies to an area in which Congress did not intend to completely oust the states of power to regulate, the state statute may still be preempted under the third test, which is whether it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ in enacting the INA.” (Id. at p. 363, quoting Hines v. Davidowitz, supra, 312 U.S. 52 , 67, and Florida Avocado Growers v. Paul (1963) 373 U.S. 132 , 141 [ 10 L.Ed.2d 248 , 83 S.Ct. 1210 ]; see also Michigan Canners & Freezers v. Agricultural Bd. (1984) 467 U.S. 461 , 469 [ 81 L.Ed.2d 399 , 104 S.Ct. 2518 ].)^[9]

LULAC, supra, 908 F.Supp. 755 , involved consolidated actions for declaratory and injunctive relief to bar the California Governor, Attorney General and other state actors from enforcing provisions of Proposition 187, an initiative measure approved by the voters at the November 1994 general election, requiring state personnel to verify the immigration status of persons with whom they come into contact and to deny undocumented persons various social services, health care, and education benefits. The initiative also required state agencies to report immigration status information to state and federal authorities, and to cooperate with the INS regarding persons whose immigration status is suspect. The plaintiffs urged that the entirety of Proposition 187 regulated immigration “because it forces state employees to make judgments as to an individual’s immigration status, gives them the power to effectuate removal of inunigrants from the country and thereby establishes California’s own INS.” (LULAC, at p. 769.) The defendants countered that “ ‘regulation of immigration’ has a ‘narrow, technical meaning,’ ” and standing alone, none of the individual provisions of Proposition 187 was “ ‘essentially a determination of who should or should not be admitted into the country and on what terms those lawfully admitted can remain here.’ ” (Ibid., quoting De Canas, supra, 424 U.S. at p. 355.)

The district court found that certain benefit denial provisions of Proposition 187 were not an impermissible regulation of immigration and preempted because, like the California statute upheld in De Canas, the denial of benefits affects immigration only indirectly or incidentally by causing persons not lawfully present in the United States to leave the state or not come here in the first place, and “such a denial does not amount to a ‘determination of who should or should not be admitted into the country.’ ” (LULAC, supra, 908 F.Supp. at p. 770, quoting De Canas, supra, 424 U.S. at p. 355.)^[10]

The specific provision of Proposition 187 most pertinent to our inquiry is section 4, entitled “Law Enforcement Cooperation with INS,” which added section 834b to the Penal Code.^[11] As the LULAC court explained, section 4 “requires law enforcement agencies to verify the legal status of every arrestee who is ‘suspected of being present in the United States in violation of federal immigration laws’ by ‘questioning the person’ and ‘demanding documentation.’ [Citation.] Section 4 requires law enforcement agencies to ‘[n]otify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that. . . he or she must either obtain legal status or leave the United States. [’] [Citation.] In addition, section 4 requires the agency to ‘[n]otify the Attorney General . . . and the [INS] of the apparent illegal status.’ [Citation.] Finally, section 4 requires law enforcement agencies to ‘fully cooperate with the

The LULAC court concluded that the foregoing provisions “cannot be read except as a regulatory scheme; and indeed, defendants have not seriously urged any other reading.” (LULAC, supra, 908 F.Supp. at p. 765.) Unlike the benefits denial provisions, these provisions would have more than a purely speculative and indirect impact on immigration, because they were aimed solely at regulating immigration.^[12] Section 4 of Proposition 187 was entirely preempted by federal law, the court explained, because under the applicable De Canas test, “a state may not require its agents to (i) make independent determinations of who is and who is not in this country ‘in violation of immigration laws;’ (ii) report such determinations to state and federal authorities; or (iii) ‘cooperate’ with the INS, solely for the purpose of ensuring that such persons leave the country. The sole stated purpose and the sole effect of section 4 is to impermissibly regulate immigration.” (LULAC, supra, 908 F.Supp. at p. 771.) Based on this and similar findings regarding other provisions of Proposition 187, the court granted the plaintiffs’ motions for summary judgment with respect to the classification, notification, and cooperation/reporting provisions set forth in section 4 and other provisions of Proposition 187. (LULAC, supra, 908 F.Supp. at pp. 786-787.)

With the analysis in LULAC in mind, we turn to the question whether it supports the trial court’s ruling.

De Canas, supra, 424 U.S. 351 , instructs that a state statute impermissibly invades the exclusive power of the federal government to regulate immigration if it essentially requires state or local officials to make “a determination of who should or should not be admitted into the country, and [defines] the conditions under which a legal entrant may remain.” (Id. at p. 355.) As earlier noted, respondents do not say Section 11369 requires state actors to determine whether a particular arrestee should or should not remain in this country, but claim it is nevertheless constitutionally proscribed because it requires such agencies “to participate, in a supporting role, in ‘the

Respondents’ argument and the trial court’s conclusion are not supported by LULAC, supra, 908 F.Supp. 755 . The single duty imposed on arresting officers under Section 11369—to “notify” the federal agency having charge of deportation matters that it has “reason to believe” an arrestee “may not be a citizen of the United States”—is significantly different from the duties imposed on them under section 4 of Proposition 187. Unlike Section 11369, section 4 of Proposition 187 requires a state or local law enforcement agency “to verify,” i.e., to actually determine to its own satisfaction whether an arrestee “suspected of being present in the United States in violation of federal immigration laws” is “a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien lawfully admitted for a temporary period of time or ... an alien who is present in the United States in violation of immigration laws.” (Pen. Code, § 834b, subd. (b)(1).) This determination is to be made pursuant to a “verification process” that may include “questioning the [arrestee]” and “demanding documentation” as to his or her legal status. (Ibid.) If the state or local law enforcement agency determines that the arrestee is “present in the United States in violation of federal immigration laws,” it must notify the arrestee of this determination and that he or she “must either obtain legal status or leave the United States.” (Pen. Code, § 834b, subd. (b)(2).) It is only at that point that a state or local law enforcement agency is required by section 4 of Proposition 187 to notify federal immigration authorities of “the apparent illegal status [of the arrestee].” (Pen. Code, § 834b, subd. (b)(3).)

Unlike section 4 of Proposition 187, Section 11369 does not require any state or local law enforcement agency to independently determine whether an arrestee is a citizen of the United States, let alone whether he or she is present in the United States lawfully or unlawfully. Nor does the statute create or authorize the creation of independent criteria by which to classify individuals based on immigration status, as did section 4 of Proposition 187. All of those determinations, as well as the duty to tell an arrestee who may be in this country unlawfully to either obtain legal status or leave, are left entirely to federal immigration authorities. Section 11369 is also different from section 4 of Proposition 187 in that it does not apply to all arrestees, but only to those persons arrested for one or more of 14 specified drug offenses.^[13]

The duty imposed on arresting officers by Section 11369 seems to us more like those upheld in Gates, supra, 193 Cal.App.3d 205 , than those found impermissible and declared preempted in LULAC. The plaintiffs in Gates challenged the conduct and actions of the LAPD regarding detainees suspected of being undocumented aliens. The appellate court found unconstitutional a former LAPD policy (Special Order No. 68) that allowed officers to arrest people for violation of civil provisions of the INA because it “impermissibly intruded upon the federal preserve.” (Gates, at p. 218.)

The LAPD changed its policy in 1979. As the Gates court pointed out, the new policy, set forth in LAPD Special Order No. 40, no longer permitted detention or arrest of undocumented aliens solely on account of their illegal status. An officer was directed to contact federal authorities only when a person arrested on state charges was suspected of being in this country unlawfully.^[14] For this reason, the court held that “LAPD’s transfer of legitimately obtained arrest information to the INS does not constitute enforcement of the civil provisions of the INA.” (Gates, supra, 193 Cal.App.3d at p. 219.)

Responding to the plaintiffs’ contention that the mere questioning of an arrestee about his or her immigration status is constitutionally defective, because its purpose is to enforce the civil provisions of the INA, the court

V.

Respondents rely very heavily on the proposition that Section 11369 cannot plausibly be deemed to serve any purpose other than that of impermissibly regulating immigration. They say that, like the per se preempted provisions of section 4 of Proposition 187, “Section 11369 can have only one purpose: to mandate cooperation with the federal immigration officials ‘solely for the purpose of ensuring that such persons leave the country.’ ” The trial court agreed, stating that “Section 11369 cannot be regarded as even primarily about drug use, sale, or possession, because it adds nothing to the State’s regulatory scheme for those matters.” As should be clear, our conclusion that Section 11369 is not an impermissible state regulation of immigration turns on its text, which no party finds ambiguous, not on any assumption regarding its purpose. Nevertheless, given that the trial court’s determination appears to have rested in some degree on its perception of the legislative purpose of Section 11369—as the LULAC court’s assessment of Proposition 187 rested in part on its perception that section 4 of that measure was aimed solely at regulating immigration (LULAC, supra, 908 F.Supp. at p. 771)—we think it appropriate to explain why we do not share the trial court’s view that Section 11369 must relate solely to the regulation of immigration because it cannot reasonably be seen as relating in any way to the state’s legitimate interest in regulating drug use.

In 1951, two years before the Legislature amended Section 11369 into its present form, the California Senate created the Interim Committee on Narcotics and Hypnotics. The resolution creating the committee (Sen. Res. No. 187 (1951 Reg. Sess.)) explains (by means of three whereas clauses) that the

Two years later, during the same regular session in which the Legislature amended Section 11369 into its present form (Stats. 1953, ch. 1770, § 9, p. 3527), the interim committee issued its 43-page report, which focused upon the public debate then taking place in California about whether to significantly increase penalties for offenses involving the sale and use of narcotics. (Sen. Interim Com. on Narcotics & Hypnotics, Rep., 2 Appen. to Sen. J. (1953 Reg. Sess.).) The report stated that “[m]any individuals and civic bodies have communicated with this committee expressing their desires that the Legislature enact more severe penalties. The change most frequently suggested is that the death sentence be imposed upon those convicted of supplying narcotics to minors.” (Id. at p. 20.) Rejecting this idea as “unrealistic” (i d. at p. 22), the committee deferred instead to the view of experts that history “indicates that it is certainty and celerity of arrest and conviction that deters offenders rather than severe penalties” (id. at p. 23). The report also noted that much of the narcotics sold and used in this state was smuggled in through Mexican nationals also present in this state unlawfully, and that “the present staff of federal agents at [the major] ports of entry in San Diego and Imperial County is totally incapable of effecting the necessary search.” (Id. at p. 17.)^[18]

The present language of Section 11369 evidently reflects a legislative conviction that federal deportation of persons arrested for selling or using narcotics and reasonably believed to be noncitizens 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