City (San Francisco) Is Sued For Failure To Report Noncitizens Arrested For Drugs

City (San Francisco) is sued for failing to report noncitizens arrested for drugs

Activist contends police are breaking California law

Leslie Fulbright,
San Francisco Chronicle Staff Writer
Friday, May 11, 2007

A San Francisco illegal immigration opponent has sued the city's police chief and police commissioners for failing to comply with a state law that requires officers to tell federal authorities about all suspected noncitizens who are arrested on drug charges.

Charles Fonseca, a 70-year-old Portola district resident who came to the United States from Nicaragua at the age of 9 and filed the lawsuit May 4, said he opposes amnesty for illegal immigrants, especially those who break the law after they get here.

“It is absurd that drug addicts don't get deported,” Fonseca said. “This country welcomes immigrants. The illegal ones should get in line.”

Fonseca's attorney David Klehm, who practices in Orange County and strongly opposes illegal immigration, filed similar suits against Los Angeles and San Jose in April. Police should take a more active role in rounding up illegal immigrants who break the law, he said.

Under federal immigration law, the U.S. Immigration and Customs Enforcement agency can move to deport anyone who is not a citizen, including legal permanent residents, on the grounds of a conviction for an aggravated felony.

The state law Klehm bases his complaint on requires police to report not only illegal immigrants but legal permanent residents and anyone else who is not a citizen who is suspected of a drug crime.

City Attorney Dennis Herrera, whose office will defend the city against Klehm and Fonseca's lawsuit, said through a spokesman Thursday that he is confident in the city's legal position. Herrera's office would not comment on whether police comply with the law.

“This is a cynical lawsuit that reflects the political aims of an anti-immigrant extremist,” Herrera said in an e-mail. “And I, frankly, think it's intended to win headlines rather than a favorable judgment.”

San Francisco Mayor Gavin Newsom has said several times that he and other San Francisco officials remain committed to offering illegal immigrants refuge in the city.

San Francisco has been a sanctuary city since 1989. The designation, adopted by cities across the country in the late 1980s and early 1990s has no legal meaning.

Robert Rubin, legal director for the Lawyers' Committee for Civil Rights of San Francisco, helped write the sanctuary ordinance and said it doesn't contradict the reporting requirement.

“This is a frivolous lawsuit,” Rubin said. “This state law is embodied in the general order of the Police Department. I don't know why he contends the city is not reporting.”

At issue is Section 11369 of the state Health and Safety code, which reads: “When there is reason to believe that any person arrested (on any of a variety of drug possession and sale charges) 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.”

Newsom's declaration that he will not allow anyone associated with the city to cooperate with federal immigration raids earned him a call for an investigation from Colorado Republican Rep. Tom Tancredo.

Klehm has asked for a court order requiring San Francisco police to report all suspected noncitizens, including immigrants who are in the country legally, if they are arrested on a drug offense. He said he will continue to file suits in California as long as cities continue to offer refuge.

“We are focusing on the subset of the community that isn't just here doing law-abiding work but committing crimes against American citizens,” Klehm said. “There is no viable argument that that portion of the population should stay here.”

E-mail Leslie Fulbright at

This article appeared on page B – 4 of the San Francisco Chronicle