Fonseca v. Fong

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Filed 11/17/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO CHARLES FONSECA, Plaintiff and Appellant, A120206 v. HEATHER J. FONG as Chief, etc., et al., Defendants and Respondents; SAN FRANCISCO POLICE DEPARTMENT, Real Party in Interest and Respondent. (San Francisco County Super. Ct. No. CPF-07-507227) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the published opinion filed herein on October 22, 2008, be modified as follows: 1. In footnote 9, on page 9 of the opinion, the last full sentence and the citation following thereafter shall be deleted. The modified footnote shall otherwise remain unchanged, with the exception of the addition of see Pen. Code, § 836 to the now final citation, and shall read as follows: 9 Though Section 11369 does not mandate state or local enforcement of the criminal provisions of the INA, it deserves to be noted that preemption principles do not bar state and local law enforcement officers from enforcing those provisions. Unlike the civil provisions of the INA, which are so comprehensive that no opportunity for state activity remains, the criminal provisions of the INA (8 U.S.C. §§ 1323-1328) are few and simple and it is settled that the federal government has not occupied the field of criminal immigration enforcement. (Gonzalez v. City of Peoria (9th Cir. 1983) 722 F.2d 468, 475, overruled on other grounds by Hodgers- Durgin v. de la Vina (9th Cir. 1999) 199 F.3d 1037, 1040, fn. 1; People v. Barajas (1978) 81 Cal.App.3d 999; Am. Jur.2d (2008) Aliens and Citizens, § 99; Cal.Jur. 3d (2008) Aliens Rights, § 16.) State and local law enforcement authorities may legally arrest a person for being in this country in violation of the criminal provisions of the INA (most commonly 8 U.S.C. §§ 1325 [improper entry by alien, a misdemeanor] and 1326 [improper reentry by removed alien, a felony]); provided only that such arrests are authorized by state law. (Miller v. United States (1958) 357 U.S. 301, 305; see Pen. Code, § 836.) There is no change in the judgment. Respondents petition for rehearing is denied. Dated: _____________________ ____________________________________ Kline, P.J. Trial Court: Superior Court of San Francisco Trial Judge: Hon. Peter J. Busch Attorneys for Plaintiff and Appellant: Judicial Watch, Inc. Sterling Ernie Norris Paul J. Orfanedes James F. Peterson Law Offices of David Klehm David Klehm Attorneys for Defendants and Respondents: Attorneys for Real Party in Interest and Respondent: Dennis J. Herrera, City Attorney Wayne K. Snodgrass, Deputy City Attorney Dennis J. Herrera, City Attorney Wayne K. Snodgrass, Deputy City Attorney

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