Fonseca v. Fong

Full title: CHARLES FONSECA, Plaintiff and Appellant, v. HEATHER J. FONG as Chief…

Court: California Court of Appeals, First District, Second Division

Date published: Nov 17, 2008

No. A120206 (Cal. Ct. App. Nov. 17, 2008)

Opinion

Page 363a

168 Cal.App.4th 363a __ Cal.Rptr.3d__ CHARLES FONSECA, Plaintiff and Appellant, v. HEATHER J. FONG as Chief, etc., et al., Defendants and Respondents SAN FRANCISCO POLICE DEPARTMENT, Real Party in Interest and Respondent. A120206 California Court of Appeal, First District, Second Division November 17, 2008

Superior Court of San Francisco Super. Ct. No. CPF-07-507227, Trial Judge: Hon. Peter J. Busch

COUNSEL

Judicial Watch, Inc., Sterling Ernie Norris, Paul J. Orfanedes, James F. Peterson, Law Offices of David Klehm, David Klehm, for Plaintiff and Appellant.

Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, Deputy City Attorney, for Defendants and Respondents, for Real Party in Interest and Respondent.

THE COURT:

It is ordered that the published opinion filed herein on October 22, 2008, (167 Cal.App.4th 922; __Cal.Rptr.3d __ ), be modified as follows:

1. In footnote 9, on page 9 of the opinion [167 Cal.App.4th 931, advance report], 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 [147 Cal.Rptr. 195];

Page 363b

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 [78 S.Ct. 1190, 2 L.Ed.2d 1332]; see Pen. Code, § 836.)

There is no change in the judgment.

Respondents’ petition for rehearing is denied.