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ROBERT PATRICK STICHT (SBN 138586)
Law Offices Robert Patrick Sticht
P.O. Box 49457
Los Angeles, 90049
Telephone:
(310) 889-1950
Facsimile:
(310) 889-1864
Email:
LORPS@verizon.net
Sterling Norris (SBN 040993)
JUDICIAL WATCH, INC.
2540 Huntington Drive, Suite 201
San Marino, 91108
Telephone:
(626) 287-4540
Facsimile:
(626) 237-2003
Email:
jw-West@judicialwatch.org
Attorneys for Plaintiff
SUPERIOR COURT THE STATE CALIFORNIA
COUNTY SAN FRANCISCO
CYNTHIA CERLETTI,
Case No.: CGC-16-556164
Plaintiff,
VICKI HENNESSY, her Official Capacity Sheriff the City and County San
Francisco.
FIRST AMENDED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF
Defendant.
INTRODUCTION
Plaintiff CYNTHIA CERLETTI, taxpayer and resident the City and County
San Francisco, California CCSF seeks enjoin Defendant VICKI HENNESSY, her
official capacity Sheriff CCSF, from expending taxpayer funds and taxpayer-financed
resources illegally substantially restricting, not prohibiting, San Francisco Sheriff
Department SFSD personnel from sharing information with federal immigration officials
about the citizenship, immigration status, and time and date release criminal aliens
SFSD custody. Plaintiff contends that Defendant restrictions are unlawful because they are
preempted federal law.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
JURISDICTION AND VENUE
Jurisdiction this case founded California common law taxpayer standing
doctrine and Code Civil Procedure section 526a, which grants California taxpayers the right
sue government officials prevent unlawful expenditures taxpayer funds and taxpayer-
financed resources. The mere expending paid, public official time performing illegal
unauthorized acts constitutes unlawful use funds that may enjoined, and immaterial
that the amount the expenditure small that enjoining the illegal expenditure will permit
savings tax funds. Blair Pitchess, Cal.3d 258, 268 (1971).
Venue this Court appropriate under Section 393 the Code Civil
Procedure Defendant official CCSF and the taxpayer funds and taxpayer-financed
resources issue are being expended CCSF. Regents the University California Karst, Cal.3d 529, 542 (1970) [F]or the purpose venue, the action arises the county where the
agency spends the tax money that causes the alleged injury.
PARTIES
Plaintiff CYNTHIA CERLETTI citizen and taxpayer, and has paid property
and other local taxes CCSF during the one-year period prior the commencement this
action.
Defendant VICKI HENNESSY the Sheriff CCSF, public officer and the
head SFSD. Defendant charged law with keeping CCSF jail and receiving all prisoners
committed jail competent authorities. S.F. Cal. Charter 6.105. Defendant being sued
her official capacity.
STATEMENT FACTS
The Government the United States has broad, undoubted power over the
subject immigration and the status aliens. Arizona United States, 567 U.S. 387, 394
(2012). This authority rests, part, the National Government constitutional power
establish uniform Rule Naturalization, Art. cl. and its inherent power
sovereign control and conduct relations with foreign nations. Arizona 567 U.S. 394-95.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Federal governance immigration and alien status extensive and complex. Id. 395.
Congress has specified which aliens may removed from the United States and
the procedures for doing through the enactment the Immigration and Naturalization Act,
U.S.C. 1101 seq. INA Arizona, 567 U.S. 396. principal feature the removal
system the broad discretion exercised immigration officials. Id.
State and local governments enjoy power with respect the classification
aliens. Plyler Doe, 457 U.S. 202, 225 (1982). That power committed the political
branches the federal government. Id.
Immigration and Customs Enforcement ICE agency within the U.S.
Department Homeland Security DHS charged with enforcing the INA. ICE conducts
criminal investigations involving the enforcement immigration-related statutes. Arizona, 567
U.S. 397 (internal citations and quotations omitted). ICE officers are responsible for the
identification, apprehension, and removal illegal aliens from the United States. Id.
10. aid the enforcement the INA, Congress has long sought encourage full
and open communication between state and local entities and federal immigration officials.
Congress also has sought remove obstacles such communication.
11. August 1996, the U.S. Congress amended the INA include provision
prohibiting all restrictions State local government entities sending receiving information from federal immigration officials regarding alien immigration status. U.S.C. 1644.
12. September 1996, Congress amended the INA again further clarify that
Federal, State, local government entity can prohibited any way restricted from sending
information receiving information from federal immigration officials regarding
individual citizenship immigration status. U.S.C. 1373(a). The amendment also
expressly prohibits all restrictions Federal, State, local government entities sending,
requesting, receiving, exchanging information to, from, with federal immigration officials
regarding individual immigration status. Id. 1373(b).
13. 2012, the U.S. Supreme Court found that [c]onsultation between federal and
state officials important feature the immigration system. Arizona, 567 U.S. 411. The
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Court also noted that Congress has encouraged the sharing information about possible
immigration violations. Id. 412 (quoting U.S.C. 1357(g)(10)(A)). According the Court,
examples such cooperation include allow[ing] federal immigration officials gain access
detainees held state facilities and state officials responding requests for information about
when alien will released from their custody. Id. 410 (internal citations omitted).
II.
14.
Congress also has mandated that the Attorney General take certain categories
criminal aliens into custody upon their release federal, state, local law enforcement
agencies. U.S.C. 1226(c). These categories include, inter alia, aliens convicted aggravated
felonies, two more crimes moral turpitude single crime moral turpitude for which the
alien has been sentenced least one (1) year jail, controlled substance and certain firearm
offenses, and terrorist activities. Id. Congress requires the Attorney General take any such
alien into custody when the alien released without regard whether the alien released
parole, supervised release, probation, and without regard whether the alien may arrested imprisoned again for the same offense.
15.
The federal government also has prioritized these same categories criminal
aliens, well other categories, for removal. Exec. Order No. 13768, Fed. Reg. 8799,
8800 (Jan. 25, 2017).
16. all relevant times until April 2017, DHS categorized certain criminal aliens
suspected priority aliens and designated them immigration enforcement priorities. When
ICE learned suspected priority alien state local law enforcement agency custody,
issued DHS Form I-247N Request for Voluntary Notification Release Suspected Priority
Alien the law enforcement agency. The notice identified the name, date birth, suspected
citizenship, and sex the subject. informed the law enforcement agency that ICE suspected
the subject was removable alien and immigration enforcement priority and identified, from list options (e.g., conviction aggravated felony significant misdemeanor why the
subject was enforcement priority. The law enforcement agency was asked provide notice early practicable (at least hours, possible, before the subject released from your
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
custody. The reason for the request was allow DHS opportunity determine whether
there probable cause conclude that she removable alien.
17. April 2017, ICE began using consolidated form, DHS Form I-247A entitled
Immigration Detainer Notice Action, request information about the release criminal
alien and provide notice ICE intent assume custody the alien. Like the earlier form,
DHS Form I-247A gives the name, date birth, suspected citizenship, and sex the subject.
Unlike the earlier form, however, the new form informs the law enforcement agency that DHS
has determined that probable cause exists that the subject removable alien and identifies,
from list options, the basis for the probable cause determination. The form also provides
contact information for providing the notification.
III.
18.
CCSF has declared itself City and County Refuge and, this end, has
adopted what calls Sanctuary City law. section entitled Immigration Status, CCSF
Sanctuary City law generally prohibits, with limited exceptions, the use City funds resources gather disseminate information about individual release status any other such
personal information. S.F. Cal. Admin. Code ch. 12H.2(a) and (c).
19.
CCSF Sanctuary City law defines personal information broadly include
any confidential, identifying information about individual. S.F. Cal. Admin. Code ch. 12I.2. information and belief, identifying information about individual includes information
about the individual citizenship and immigration status.
20. separate section CCSF Sanctuary City law, entitled Restrictions Law
Enforcement Officials, prohibits responding federal immigration officer notification
request, which defined include formal and informal requests for notification
individual release from local custody. S.F. Cal. Admin. Code ch. 12I.2 and 12I.3
21.
The only exception this prohibition notification request regarding
individual who has been convicted Violent Felony the past seven years, Serious
Felony the pasts five years, three separate, particular, serious violent felonies the past
five years, provided further that magistrate has also determined there currently probable cause
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF believe the alien guilty particular, serious violent felony and has ordered the alien
answer for the offense. S.F. Cal. Admin. Code ch. 12I.3(d). Even the individual meets both
criteria, before responding notification request, law enforcement officials also are required
consider whether any mitigating factors warrant denial the request. Id.
IV.
22.
Since taking office, Defendant has substantially restricted, not prohibited, SFSD
personnel communications with ICE about inmates citizenship and immigration status and the
time and date criminal aliens release from SFSD custody. information and belief, these
restrictions reflect Defendant independent judgment about how aliens should classified when
they commit crimes, whether and when criminal aliens should should not removed from the
United States, and, more generally, the conditions that should granted imposed aliens
the United States. They also reflect, information and belief, her judgment about how CCSF
Sanctuary City law should read and implemented.
23.
Before Defendant took office, her predecessor had issued directive All SFSD
Personnel expressly prohibiting them from providing information ICE representatives about
the citizenship/immigration status any inmate release dates times inmates, among
other information.
24.
After Defendant took office, she issued directive April 11, 2016, Reference
No. 2016-051, entitled Immigration and Custom Enforcement Procedure (ICE) Contact and
Communication, purportedly revoking her predecessor directive and putting place her own.
25. information and belief, Defendant April 11, 2016 directive keeps place her
predecessor prohibition SFSD personnel providing information ICE about inmates
citizenship immigration status. Under the headers AUTHORIZED and NOT
AUTHORIZED, Defendant directive lists categories information SFSD personnel are and
are not authorized provide ICE. While Defendant predecessor directive had expressly
stated that SFSD personnel shall not provide information ICE representatives about the
citizenship/immigration status any inmate, Defendant April 11, 2016 directive does not
identify citizenship/immigration status information SFSD personnel are authorized
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
provide. Citizenship and immigration status are not listed under either header. addition, the
directive states, Any questions requests received from ICE representatives, especially those
not covered here, shall referred Sheriff Legal Counsel. minimum, Defendant
directive prohibits SFSD personnel from providing information about inmates citizenship
immigration status ICE directly, but must instead refer any ICE requests for such information Defendant counsel.
26.
Like her predecessor directive, Defendant April 11, 2016 directive expressly
prohibits SFSD personnel from providing inmates release dates and times ICE. Under the
NOT AUTHORIZED header, the directive states that Sheriff staff members are not
authorized provide Release dates and times ICE representatives and advises SFSD
personnel that
Per Administrative Code 12H.2.1 are currently the process working
guidelines that will initiate review process for each person for whom receive request for notification release. have been reviewing all requests for
notification release received date for this purpose All ICE requests for
Voluntary Notification (DHS Form I-247D I-247N) will continue
forwarded Administration without action.
27. information and belief, Defendant subsequently developed her own
classifications criminal aliens, different from the classifications criminal aliens set forth
the INA and Executive Order 13768, apply determining whether SFSD will provide inmates
release dates and times ICE. further information and belief, Defendant classifications
criminal aliens are similar, but not identical, the classifications set forth CCSF Sanctuary
City law. information and belief, these determinations have been centralized within SFSD
ensure Defendant control over them. further information and belief, these determinations
require analysis whether alien subject ICE notification request meets specific
criminal history threshold and whether any mitigating factors warrant denial the request.
28.
Pursuant CCSF Administrative Code Chapter 12I.5, Defendant required
report, semi-annual basis, all communications received from federal immigration officials
and all communication SFSD made federal immigration officials, including but not limited
release notification requests and responses. S.F. Cal. Admin. Code ch. 12I.5.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
29. September 28, 2016 report Defendant provided CCSF Mayor Edwin Lee,
SFSD received communications from ICE between January 2016 and June 30, 2016,
including request for detention, requests for transfer, and requests for release information,
but SFSD did not respond any them. Other than meeting between Defendant, her staff,
and ICE officials February 11, 2016, Defendant reported other communication from
SFSD and ICE.
30.
SFSD receives millions dollars taxpayer support annually. Fiscal year
2014-15, SFSD was appropriated approximately $190 million from CCSF general fund
finance its operations. Fiscal Years 2015-16, SFSD was appropriated nearly $200 million from
CCSF general fund finance its operations. CCSF adopted budget for Fiscal Year 2016-17
appropriated nearly $208 million SFSD from the general fund finance SFSD operations.
The primary source funds for CCSF general fund are property taxes and other local taxes
such those paid Plaintiff.
31. information and belief, Defendant has expended taxpayer funds and taxpayer-
financed resources purportedly revoking and replacing her predecessor directive.
information and belief, Defendant also has expended taxpayer funds and taxpayer-financed
resources preparing and issuing her own directive and restrictions sharing information with
ICE, communicating her directive and information-sharing restrictions SFSD personnel,
CCFS Board Supervisors, and others CCFS government, training SFSD personnel the
directive and restrictions, and implementing, enforcing, defending, and otherwise carrying out the
directive and restrictions.
FIRST CAUSE ACTION
(Taxpayer Claim Citizenship and Immigration Status)
(Express Preemption)
32.
Plaintiff incorporates paragraphs reference fully set forth herein
and further alleges follows:
33. actual and justiciable controversy has arisen and now exists between Plaintiff
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during
the one-year period prior the commencement this action and that Defendant expending
taxpayer funds and taxpayer-financed resources illegally substantially restricting, not
prohibiting, SFSD personnel from sharing information about inmates citizenship immigration
status with ICE. Plaintiff further contends that these restrictions are illegal because they are
expressly preempted U.S.C. 1373 and 1644 and the INA. information and belief,
Defendant contends she not expending taxpayer funds and taxpayer-financed resources
illegally.
34.
Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources.
information and belief, these illegal expenditures will continue unless and until enjoined.
35. judicial declaration pursuant California Code Civil Procedure 1060
necessary and appropriate that the parties may ascertain their respective legal rights and duties
with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed
resources.
36.
Plaintiff also has adequate remedy law.
SECOND CAUSE ACTION
(Taxpayer Claim Release Information)
(Express Preemption)
37.
Plaintiff incorporates paragraphs reference fully set forth herein
and further alleges follows:
38. actual and justiciable controversy has arisen and now exists between Plaintiff
and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during
the one-year period prior the commencement this action and that Defendant expending
taxpayer funds and taxpayer-financed resources illegally substantially restricting, not
prohibiting, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens. Plaintiff further contends that these restrictions are illegal because
they are expressly preempted U.S.C. 1373 and 1644. information and belief,
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Defendant contends she not expending Plaintiff taxpayer funds and taxpayer-financed
resources illegally.
39.
Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources.
information and belief, these illegal expenditures will continue unless and until enjoined.
40. judicial declaration pursuant California Code Civil Procedure 1060
necessary and appropriate that the parties may ascertain their respective legal rights and duties
with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed
resources.
41.
Plaintiff also has adequate remedy law.
THIRD CAUSE ACTION
(Taxpayer Claim Release Information)
(Implied Preemption)
42.
Plaintiff incorporates paragraphs reference fully set forth herein
and further alleges follows:
43. actual and justiciable controversy has arisen and now exists between Plaintiff
and Defendant. Plaintiff contends that she has paid property and other local taxes CCSF during
the one-year period prior the commencement this action and that Defendant expending
taxpayer funds and taxpayer-financed resources illegally substantially restricting, not
prohibiting, SFSD personnel from sharing information with ICE about the release dates and times suspected priority aliens. Plaintiff further contends that these restrictions are illegal because
they are impliedly preempted the INA they stand obstacle clear purpose and
objective Congress and constitute impermissible state local classification aliens and/or
regulation immigration. information and belief, Defendant contends she not expending
Plaintiff taxpayer funds and taxpayer-financed resources illegally.
44.
Plaintiff has been irreparably harmed and will continue irreparably harmed Defendant illegal expenditure taxpayer funds and taxpayer-financed resources.
information and belief, these illegal expenditures will continue unless and until enjoined.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
45. judicial declaration pursuant California Code Civil Procedure 1060
necessary and appropriate that the parties may ascertain their respective legal rights and duties
with respect Defendant illegal expenditure taxpayer funds and taxpayer-financed
resources.
46.
Plaintiff also has adequate remedy law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for the following relief against Defendant:
First Cause Action judgment declaring Defendant expenditure taxpayer funds and taxpayer-
financed resources substantially restricting, not prohibiting, SFSD personnel from sharing
information about inmates citizenship immigration status with ICE illegal; injunction permanently prohibiting Defendant from expending causing the
expenditure taxpayer funds and taxpayer-financed resources substantially restrict, not
prohibit, SFSD personnel from sharing information about inmates citizenship immigration
status with ICE;
Costs suit herein;
Reasonable attorney fees under the Private Attorney General Statute, Code
Civil Procedure 1021.5, the Common Fund Doctrine, and the Substantial Benefit Doctrine; and
Such other relief the Court deems just and proper.
Second Cause Action judgment declaring Defendant expenditure taxpayer funds and taxpayer-
financed resources substantially restricting, not prohibiting, SFSD personnel from sharing
information with ICE about the release dates and times suspected priority aliens illegal; injunction permanently prohibiting Defendant from expending causing the
expenditure taxpayer funds and taxpayer-financed resources substantially restrict, not
prohibit, SFSD personnel from sharing information with ICE about the release dates and times
suspected priority aliens;
Costs suit herein;
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF