CITY AND COUNTY OF SAN FRANCISCO

TO:

FROM:

DATE:

RE:

OFFICE OF THE CITY AnORt'-lEY

DENNIS J. HERRERA City Attorney

MARIAM MORLEY Deputy City Attorney

DIRECT DIAL: (415) 554-4633

E-MAIl:

rnoriorn.rnortevesstqov.orq

MEMORANDUM PRIVILEGED & CONFIDENTIAL

Mayor Gavin Newsom Buck Delventhal~ Y Mariam Morley '~

Wayne Snodgrass r. BE.

Deputy City Attorneys .

August 18,2009

Legal Issues In Connection With Proposed Amendment To Sanctuary City Ordinance

The Juvenile Probation Department's current policy is to report to the federal Immigration and Customs Enforcement Agency ("ICE") the identities of juveniles who are in custody at the Juvenile Hall after being booked for a felony and who are suspected of violating the federal immigration laws. This policy is based on an exception in San Francisco's City of Refuge Ordinance that permits reporting "any person pursuant to State or federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws." (Admin. Code 12H.2-1.)

Supervisor Campos has introduced legislation that (l) would change this policy to permit reporting of juveniles to ICE only upon a finding by the juvenile court that the minor committed a felony, or upon court approval of the District Attorney's decision to charge the minor as an adult, and (2) would require the Juvenile Probation Department to implement the new policy as permitted by state and federal law (the "proposed Amendment"). Christine DeBerry requested on your behalf that we provide you, as early as possible, with written legal advice on the significant legal issues raised by the proposed Amendment and its effect on the current practices of the Department of Juvenile Probation. We are providing you with this memorandum in response to that request.

SUMMARY

The federal and state law governing sanctuary city ordinances, including the proposed Amendment, is not settled. The enactment of the proposed Amendment is (1) likely to result in a federal legal challenge to the proposed Amendment, and possibly the entire City of Refuge Ordinance, and (2) could adversely affect a pending civil suit in state court challenging the Police Department's immigration reporting policies, a federal criminal investigation into the Juvenile Probation Department's reporting policies, and a pending wrongful death lawsuit against the City. In particular:

• Legal Challenge -- Federal Preemption. Federal law does not pennit a local government entity to prohibit its officials from providing information to federal immigration authorities about any individual's immigration status. (8 U.S.C. § 1373.) The proposed Amendment

CITY HALL' 1 DR. CARLTON B. GOODLETT PLACE. ROOM 234 . SAN FRANCISCO. CALIFORNIA 94102 RECEPTION: (415) 554-4700 FACSIMILE: (415) 554-4763

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CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY A nOR !'-l EY

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DATE:

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Memorandum

Privileged & Confidential Mayor Gavin Newsom

August 18,2009

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Legal Issues in Connection with Legislation

imposes a new restriction on the authority of City employees to communicate with federal authorities about a juvenile'S immigration status. There is a 1992 California Attorney General's opinion and a 1999 Second Circuit Court of Appeals decision concluding that federal law preempts local sanctuary city ordinances. But the law in this area is not well developed, particularly regarding juveniles, and the Ninth Circuit Court of Appeals and United States Supreme Court have not reviewed the legality of local sanctuary ordinances. Therefore, we cannot predict the outcome of likely legal challenges to the proposed Amendment.

We included findings in the proposed Amendment in an effort to support its legality if the proposed Amendment is challenged on grounds of federal preemption. Still, there is a serious risk that a court will find that federal law preempts the proposed Amendment, and possibly the entire Sanctuary City ordinance.

Based on the primacy of federal law and in light of potential federal criminal liability, we historically have advised and will continue to advise City officials, including the Juvenile Probation Department, that until further clarification by the federal courts, federal law prohibits the City from taking any adverse action against a City official or employee who reports a juvenile to federal immigration authorities.

• State Law Reporting Requirements for Drug Arrests -- Fonseca Case. California law requires an arresting agency to notify federal immigration authorities "[ w ] hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses including misdemeanor possession] may not be a citizen of the United States .... " (Health & Saf. Code § 11369.) In Fonseca v. Fong (2008) 167 Cal.App.4th 922, the California Court of Appeal recently ruled that the City must comply with this reporting requirement, and remanded the case to the trial court to determine whether the City is complying with the statute. Public safety depends in part on the willingness of the immigrant community to report crimes to the police. Accordingly, at the direction of City officials, we are attempting to settle this case on terms that minimize the involvement of San Francisco Police Department ("SFPD") patrol officers in making reports to federal immigration authorities. Public disclosure of the proposed Amendment probably will delay settlement efforts and inject into the case the issue of reporting juveniles.

In referencing those who must be reported, Section 11369 does not distinguish between adults and juveniles. We have arguments that the Legislature did not intend to include juveniles. But because the statute does not expressly exclude juveniles from its reporting requirements, we cannot predict the outcome if this issue is litigated. Currently, the Department of Juvenile Probation reports to ICE those juveniles booked on felonies who are suspected of violating federal immigration law. An adverse ruling on juveniles in Fonseca could require City officials to report additional juveniles, not just those booked on felonies or made wards of the court, but all juveniles arrested for fourteen drug offenses, including the common offense of misdemeanor drug possession.

• Criminal Liability For Transporting Or Harboring -- U.S. Attorney Investigation.

Federal law makes it a crime for any person, in knowing or reckless disregard of the fact that an alien is illegally in the United States, to "transport" the alien within the United States "in

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY AnORNEY

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Privileged & Confidential Mayor Gavin Newsom

August 18, 2009

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furtherance of such violation o flaw " or to "conceal, harbor or shield from detection[] such alien in any place, including any building or any means of transportation." (8 U.S.c. § 1324(a)(l )(A)(ii) and (iii).) The U.S. Attorney for the Northern District of California is conducting a federal grand jury investigation into whether San Francisco officials violated these federal laws in the transporting and housing of certain juvenile offenders. The U.S. Attorney has taken an aggressive stance on the scope of the statute, and has focused on the City's prior practice of reuniting immigrant juveniles with their families abroad and placing them in group homes. To date, the City has produced thousands of documents in response to federal grand jury subpoenas, and expended substantial legal fees and costs on this matter. Although we cannot predict the future course or outcome of this investigation, it remains ongoing. Enactment of the proposed Amendment, which further restricts City officials' cooperation with federal immigration authorities, is likely to have a negative effect on the City's ability to terminate this investigation soon, without the filing of any charges.

Moreover, because specific City officials may be the targets of this federal grand jury investigation, we have obtained outside criminal counsel for them. Given that these officials potentially are in criminal jeopardy, outside criminal counsel may advise them to continue to follow the Juvenile Probation Department's current policy and report information to ICE about juveniles who are booked for felonies. As stated above, until the federal courts clarify whether sanctuary city ordinances are preempted by federal law, we will continue to advise City officials that the City may not penalize its employees for reporting this information to ICE. To advise otherwise would be to place these employees at further risk of criminal prosecution.

• Wrongful Death Lawsuit Against The City - Bologna Case. The Bologna family filed a federal civil lawsuit claiming that the City and its officials are liable for the killing of three family members by Edwin Ramos. The family claims that City sanctuary policies prevented City officials from turning Mr. Ramos over to federal immigration authorities, and that if the City had reported Mr. Ramos, ICE would have detained or deported him, and Mr. Ramos would not have killed the three Bologna family members. The federal district court recently dismissed all the federal claims and is considering whether to remand the state claims back to state court. One of the state claims is for injunctive relief to compel the City to comply with Health and Safety Code Section 11369 and 8 U.S.c. Section 1324. If that claim is litigated, any change in the City's policies could become an issue that prolongs the Bologna litigation and increases the City'S costs.

The City already has spent over $300,000 in attorney's fees and costs in defending the City in connection with the legal proceedings that are currently pending - the federal criminal investigation, the Fonseca case, and the Bologna case. If the proposed Amendment passes, we cannot predict with certainty the costs to the City of the federal preemption litigation that may be filed. But based on our experience in prior large scale litigation, we believe that the litigation could take years to resolve, and the total fees and costs to the City could exceed $1 million, particularly if the case reaches the United States Supreme Court. If the City were to lose, it could be required to pay the same amount or more to plaintiffs for their attorneys' fees and costs.

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY A TTORN!=Y

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Privileged & Confidential Mayor Gavin Newsom

August 18, 2009

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LEGAL ANALYSIS

I. Federal law prohibits a government entity from preventing its officials from reporting immigration status information to ICE.

Under federal law, no federal, state or local official or entity may "prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." (8 U.S.c. § 1373.) Section 1373 does not require the City to tum over information about an individual to ICE, but it prevents the City from prohibiting City officials from turning over information. I

To date, even though the City of Refuge Ordinance generally prohibits providing information about immigration status to ICE, no one has challenged in court the legality of San Francisco's City of Refuge Ordinance under Section 1373. Enactment of the proposed Amendment with its new prohibition on reporting could prompt anti-immigrant groups to challenge the entire ordinance. Also, an employee or organization representing that employee would almost certainly raise such a challenge if the City attempts to enforce the ordinance by disciplining law enforcement personnel for contacting ICE.

There is not much judicial guidance on the legality of sanctuary city ordinances like San Francisco's. The Ninth Circuit Court of Appeals and the United States Supreme Court have not addressed the issue. But a 1992 California Attorney General Opinion concluded that a sanctuary city ordinance is preempted by federal law, and in 1999 the federal Court of Appeals for the Second Circuit held that New York City's ordinance was preempted by federal law because it was not protected by the Tenth Amendment, which guarantees "states rights." We discuss each of these opinions in tum.

In 1992, a Bay Area legislator asked the California Attorney General: "[m]ay a city prohibit its officers and employees from cooperating in their official capacities with Immigration and Naturalization Service investigation, detention, or arrest procedures relating to violations of the civil provisions of the federal immigration laws?" The Attorney General answered: "[ d]ue to the supremacy clause of the United States Constitution," a city may not impose such a prohibition on its officers and employees. (75 Ops.Cal.Atty.Gen 270 (1992); Fonseca, supra, 167 Cal. App. 4th at p. 938, fn. 16.) State courts give opinions of the California Attorney General weight, but these opinions are not dispositive and are not binding precedent.

In 1999, a federal Court of Appeals held that the Tenth Amendment did not protect the City of New York's sanctuary city policies, which prohibited city employees from giving information to federal immigration authorities concerning the immigration status of any alien, except those suspected of engaging in criminal activity. (City of New York v. United States (2nd Cir. 1999) 179 F.3d 29, cert. denied 528 U.S. 1115.) The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States,

I There is a proposal pending in Congress, as part of a larger immigration reform bill, to repeal Section 1373, but there has been little action on it to date. See H.R. No. 264, III th Cong., 15t Session 1402 (2009).

CITY AND COUNTY OF SAN FRANCISCO

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August 18, 2009

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are reserved to the States respectively, or to the people." (U.S. Const., 10th Amend.) Under the Tenth Amendment, Congress "may not directly force states to assume enforcement of administrative responsibilities constitutionally vested in the federal government." (179 F.3d at 35.) In City of New York, New York City contended that Section 1373 violated the Tenth Amendment because it forbade state and local government entities from controlling information concerning immigration status obtained in the course of official business. (ld. at 33.)

The Court of Appeals for the Second Circuit found no Tenth Amendment violation. The Court explained that in enacting Section 1373, Congress was not forcing states to assume enforcement of the federal immigration laws. (Id.) Rather, the Court concluded that Section 1373 is "a valid federal measurer ] that prohibit[s] states from compelling passive resistance" to a particular federal program. (Id. at p. 35.) The Court explained: "If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs." (Id.) The Court stated, however, that there might be "generalized confidentiality policies that are necessary to the performance of legitimate municipal functions" that could survive federal challenge. But the court found that New York City did not articulate any such policies. (Id at p. 37.)

As explained above, City of New York left open the question whether there might be a generalized confidentiality policy "necessary" to "legitimate municipal functions" that could survive federal challenge. We have attempted to bring the proposed Amendment within this potential exception by emphasizing the different way the judicial system addresses crime committed by juveniles. The goal of the juvenile justice system is rehabilitation, not punishment of juveniles, and therefore the system includes a policy of confidentiality for juvenile offender records and information. But under the Court's reasoning in City of New York, a confidentiality policy could not be aimed solely at protecting information from the federal immigration authorities, but would have to be a "generalized" policy to fall within the suggested exception. If other courts adopt this reasoning, it may be challenging to bring the proposed Amendment, and the entire City of Refuge Ordinance, within an exception for state or local policies protected by the Tenth Amendment.

In sum, Section 1373 prohibits the City from preventing City officials or employees from reporting information to federal immigration authorities. The published authorities cited above concluded that federal law controls, but the Ninth Circuit Court of Appeals and United States Supreme Court have not addressed whether federal law preempts sanctuary city ordinances such as San Francisco's, and the federal courts have not addressed the question in the context of juveniles. If the ordinance is amended as proposed, someone could file a legal challenge on federal preemption grounds not only to the proposed Amendment, but also to the entire City of Refuge Ordinance. Also, if the City attempted to enforce the new policy by disciplining an employee for violating it, the City could be exposed to damages for unlawful termination. Finally, as discussed further below, there is an ongoing threat of criminal prosecution by the federal authorities. For these reasons, until the courts clarify whether federal law controls, we have advised and will continue to advise the Juvenile Probation Department that it cannot take any adverse employment action against an employee who provides information to immigration authorities about a juvenile.

CITY AND COUNTY OF SAN FRANCISCO

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Privileged & Confidential Mayor Gavin Newsom

August 18, 2009

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Given the dearth of case law on the subject, we cannot predict the outcome of a federal preemption challenge to the proposed Amendment, but there is a serious risk that a court will find the proposed Amendment and perhaps the entire City of Refuge Ordinance to be preempted. Based on our experience in similar cases, we estimate that the cost to the City in attorney's fees and costs could exceed $1 million. If the City were to lose, it could be required to pay the same amount or more to plaintiffs for their attorney's fees and costs.

II. State law requires an "arresting agency" to report to ICE individuals arrested on certain drug offenses where there is reason to believe they are not citizens.

The City of Refuge Ordinance generally prohibits use of City resources to report information about immigration status to the federal immigration authorities, but contains an

exception when "such assistance is required by federal or State statute, regulation or court decision." (San Francisco Administrative Code Section 12H.2 [Use of City Funds Prohibited]).

California 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] 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." These drug offenses include not only felonies but also misdemeanors such as possession of marijuana and being under the influence of an illegal drug.

In October 2008, in the case of Fonseca v. Fong, supra, 167 Cal.App.c" 922, the state Court of Appeal held that San Francisco must comply with Section 11369 because that statute is not preempted by federal immigration law. Rather, according to the Court, Section 11369 is an effort to "stamp out illicit drug traffic" in California by facilitating the "swift imposition" of federal deportation. (Id. at pp. 940-41.) The Court held, among other things, that due process did not require that arresting agencies wait until conviction to make a report to federal authorities. (Id. at p. 936 & fn. 15.) The Court remanded the case to the trial court to determine if the SFPD is complying with Section 11369.

While we await further direction from the trial court in Fonseca, settlement discussions are underway. Public safety depends in part on the willingness of the immigrant community to report crimes to the police. Accordingly, at the direction of City officials, we are attempting to settle this case on terms that minimize the involvement of SFPD patrol officers in reporting to federal immigration authorities. But once the proposed Amendment becomes public, it may delay settlement efforts and inject into the case the issue of reporting juveniles.

The Fonseca decision did not specifically address the application of Section 11369 to juveniles. Section 11369 applies to "any person," and does not expressly except juveniles. The definitions that govern Section 11369 state that "person" means "individual, corporation, government ... or any other legal entity." (Health & Saf. Code §§ 11001, 11022.) No case discusses this issue. But there is a reasonable argument that by using the term "arrest" in Section 11369, the Legislature did not intend to require the reporting of juveniles.

In 1971, the California Supreme Court held that "the Legislature has carefully avoided the use of the term 'arrest'" for detentions of juveniles. (TlvG v. Superior Court (1971) 4 Ca1.3d 767, 775.) The Court explained that "Welfare and Institutions Code section 625 provides that

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY ATTORNEY

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DATE:

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Privileged & Confidential Mayor Gavin Newsom

August 18, 2009

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juveniles are not subject to 'arrest,' but may only be taken into 'temporary custody.'" (Ibid.) "Although the courts and the Legislature have not been completely consistent in their terminology, the legislative purpose and intent to spare juveniles from the untoward and unjustified consequences of an 'arrest' record appears clear." (Id. at p. 776.) It was in 1972 - one year after the California Supreme Court decided TNG - that the Legislature enacted Health and Safety Code Section 11369. We would argue that the Legislature presumably was aware of the ruling when it enacted Section 11369 and that its use of the terms "arrest" must similarly be understood to refer to adults and not juveniles. It is unclear how a court would rule, however, given the broad definition of the term "person" in the Health and Safety Code.

The proposed Amendment likely will cause the issue of juveniles to be raised in the Fonseca case. If a court ruled that Section 11369 required the City to report drug arrests of juveniles, the City would be required to report not just arrests or convictions for felonies, but also for drug-related misdemeanors such as possession of marijuana. Misdemeanor drug arrests are common, and if the enactment of the proposed Amendment led to such an interpretation of Section 11369, the City would be required to report a much greater number of juveniles to ICE than it does under current policy.

III. The U.S. Attorney is continuing a federal criminal investigation of the City and its officials for alleged illegal harboring and transportation of undocumented youth.

The U.S. Attorney's Office has an ongoing criminal investigation into whether City employees illegally transported or harbored undocumented youth detained in the juvenile justice

system.

Federal law makes it a crime for any person in knowing or reckless disregard of the fact that an alien is illegally in the United States to:

• transport, move or attempt to transport or move the alien within the United States "in furtherance of such violation oflaw," or

• conceal, harbor or shield from detection such alien in any place, including any building or any means of transportation. (8 U.S.c. § 1324(a)(l)(A)(ii) and (iii).)

The U.S. Attorney has taken an aggressive view of these statutes, and has argued that the City is violating federal criminal law when it houses or transports a suspected illegal alien without informing ICE. We are not aware of any criminal prosecution brought against a government entity for transporting or harboring aliens under this federal criminal law. Moreover, all of the City'S actions in connection with juvenile offenders were done under orders of the Superior Court. Nevertheless, the U.S. Attorney's Office has continued to pursue the investigation despite our efforts to terminate it.

The City has produced thousands of documents in the custody of the Juvenile Probation Department in response to federal criminal grand jury SUbpoenas. We have asked the U.S. Attorney's Office to confirm whether City employees are targets, but the U.S. Attorney has refused to do so. Therefore, City employees of the Juvenile Probation Department and perhaps other departments may be targets. The City has hired criminal defense counsel to represent certain individuals and to advise on the investigation.

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY A nORNEY

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Privileged & Confidential Mayor Gavin Newsom

August 18,2009

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Because federal criminal authorities are scrutinizing the Juvenile Probation Department, the Departments members may be reluctant to attend or testify at public hearings. They also may fear arrest or indictment by federal authorities if they alter their current practice of providing to ICE information on juveniles in custody after being booked on a felony. About a year ago, in response to newspaper reports that a court commissioner had sent a juvenile immigrant arrested for dealing drugs to be treated by social services in a group home, the U.S. Attorney responded:

"I am concerned that there are people who are still attempting to find stratagems to avoid compliance with federal law" (S.F. Chronicle, August 26,2008 ["Court rules S.F. teen illegal needs services"].) Ifthe City's policy is changed, outside criminal defense counsel may advise the represented City employees that they are in legal jeopardy if they comply, and may further advise them not to alter their current practice of providing federal authorities information on juveniles booked on felony charges.

The federal criminal investigation has proven expensive for the City, including requiring expenditure for City Attorney time, outside counsel time, and the cost of producing documents in response to the grand jury subpoenas. A change in City policy is likely to cause the US. Attorney to extend the investigation, which will force the City to incur significant additional expense, including out-of-pocket costs to outside counsel. The return to a policy of not reporting juveniles could also encourage the U.S. Attorney's Office to file charges it might otherwise exercise its discretion not to pursue.

IV. The Bologna family filed a lawsuit alleging that the City's implementation of its sanctuary city ordinance caused the death of its family members.

Bologna family members filed a civil lawsuit claiming that the City's policies and practices in implementing its City of Refuge Ordinance violate federal and state law and that they shielded Edwin Ramos, the murderer of their family members, from deportation. They allege that the City's policies caused the deaths of three members of the Bologna family.

The Bolognas brought suit not only against the City, but against the Mayor, Police Chief Fong and Juvenile Probation Chief William Siffennann, all as individuals. The Bolognas have asserted claims for wrongful death, negligence, negligent infliction of emotional distress, state civil rights violations, federal civil rights violations (42 US.C. § 1983), and racketeer influenced and corrupt organizations violations (18 US.c. § 1961, et seq.).

Recently, the federal district court dismissed the federal claims with prejudice and is considering whether to remand the state claims to state court. Among the state claims, is a request for injunctive relief under which plaintiffs may attempt to litigate whether the City of Refuge Ordinance is preempted by federal law, 8 US.c. Section 1373, whether the City properly complies with the state reporting requirement contained in Health and Safety Code Section 11369, and whether the City's policies are a violation of federal criminal harboring law, 8 U.S.c. Section 1324. Ifthis request for injunctive relief survives, any change in City policies may prolong this aspect of the case.

CITY AND COUNTY OF SAN FRANCISCO

OFFICE OF THE CITY ATTORNEY

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Privileged & Confidential Mayor Gavin Newsom

August 18, 2009

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CONCLUSION

San Francisco's City of Refuge Ordinance has been part of the City's law since 1989.

Recently, the City has become involved in expensive litigation over its policies for reporting to ICE information on individuals suspected of being here illegally. Currently, the City is defending itself against a civil lawsuit (Fong v. Fonseca) challenging the City's adherence to state requirements to report to ICE those arrested on drug offenses; a federal criminal investigation into its policies for informing ICE about juvenile offenders; and a civil suit by the Bologna family (Bologna v. CCSF) alleging that the City's policies were responsible for the death of family members by Edwin Ramos, allegedly an illegal immigrant once in the City's juvenile justice system. The litigation to date, without including the costs of non-litigation legal advice, has cost the City in excess of $300,000.

The proposed Amendment is likely to induce a new legal challenge - based on federal preemption - to the Amendment and possibly the entire City of Refuge Ordinance. Although the Ninth Circuit Court of Appeals and the United States Supreme Court have not addressed federal preemption of sanctuary city ordinances, particularly in their application to juveniles, there is a serious risk that a court could find the City's ordinance to be preempted by federal law . As stated above, such litigation would be expensive, because it would end up in the appellate courts, costing the City an estimated $500,000 to $1 million or more for its own fees and costs, and a comparable amount or more, if the City loses, for the opposing parties' attorney's fees.

Raising the issue of juvenile offenders at this time also increases the risks associated with the existing legal proceedings: (1) in Fonseca v. Fong, the risk that a court will require the City to go beyond its current reporting of juveniles booked for felonies and report all juveniles arrested on drug charges - including common misdemeanors; (2) in the federal criminal investigation, the risk that the U.S. Attorney will prolong the investigation and be more inclined to file charges; and (3) in the Bologna case, the risk of prolonging the case. By adding a new legal issue to these pending cases, the proposed Amendment also will increase the cost to the City of litigating them.