APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC351646).
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Special Order 40 (SO40) is the policy of the Los Angeles Police Department (LAPD) governing interactions with illegal immigrants. It prohibits LAPD officers from initiating police action with the sole objective of discovering the immigration status of an individual, and arresting individuals for illegal entry into the United States. In 1987, this court upheld SO40 against a challenge that the mere questioning of a criminal arrestee about his immigration status, and passing that information on to federal immigration officials, acts permitted by SO40, constituted unconstitutional state enforcement of federal civil immigration law. (Gates v. Superior Court (1987) 193 Cal.App.3d 205, 219.) We concluded that the LAPD could voluntarily transfer legitimately obtained arrest information to federal authorities without running afoul of the U.S. Constitution. (Ibid.)
Subsequently, Congress enacted a statute invalidating state and local restrictions on the voluntary exchange of immigration information with federal immigration authorities. (8 U.S.C. § 1373 (section 1373).) Plaintiff Harold P. Sturgeon brought a taxpayer action to enjoin defendants, LAPD Chief William Bratton and other officials,*fn1 from enforcing SO40, as a local restriction invalidated by section 1373. The trial court permitted intervention, in support of defendants, by several organizations supporting immigrants‟ rights.*fn2 Interveners and defendants moved for summary judgment on the basis that SO40 was not invalid. Sturgeon took the position that SO40 violated the supremacy clause (U.S. Const., art. VI, cl. 2) because it conflicted with section 1373. Alternatively, Sturgeon argued that SO40 was preempted by federal immigration law. Finally, Sturgeon argued that SO40 violated Penal Code section 834b, a California statute requiring local law enforcement agencies to cooperate with federal immigration authorities, and specifying certain immigration enforcement tasks which must be taken with respect to every arrestee suspected of being present in the United States illegally.
The trial court granted summary judgment, upholding the validity of SO40. As to Sturgeon‟s contention that SO40 violated the supremacy clause, the trial court concluded that Sturgeon‟s challenge was solely a facial challenge, not an as-applied challenge, and that Sturgeon had failed to establish that SO40 was facially invalid under all circumstances. As to Sturgeon‟s preemption argument, the trial court concluded SO40 is not preempted by federal immigration authority. Finally, as to Sturgeon‟s argument that SO40 violated Penal Code section 834b, the trial court concluded that Penal Code section 834b was itself preempted by federal law. The trial court therefore granted summary judgment in favor of defendants and interveners. Sturgeon appeals. We agree with the trial court‟s analysis in all respects, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A brief review of the relationship between federal and local authorities with respect to the enforcement of immigration law is helpful to place into context the adoption of SO40. While improper entry into the United States is a misdemeanor (8 U.S.C. § 1325(a)), an alien illegally in the country may also be subjected to removal proceedings before an immigration judge (8 U.S.C. § 1229a). Only the former constitutes a criminal proceeding.
The federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion and deportation of aliens. (Gates v. Superior Court, supra, 193 Cal.App.3d at pp. 214-215.) As such, Congress is prohibited by the Tenth Amendment from passing laws requiring states to administer civil immigration law. (City of New York v. United States (2d Cir. 1999) 179 F.3d 29, 33-35.)
Under federal law, matters of immigration are handled by the Office of Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security.*fn3 (Fonseca v. Fong (2008) 167 Cal.App.4th 922, 927.) Authorized ICE officers have powers to enforce federal immigration laws which exceed the powers of state law enforcement officers.*fn4 Under 8 U.S.C. § 1357(g), the Attorney General of the United States may enter into a written agreement with a State or political subdivision pursuant to which State or local officers may carry out the function of immigration officers, but this requires a voluntary agreement, and the local officer would be subject to the supervision of the Attorney General when performing the functions of an ICE officer. (8 U.S.C. § 1357(g)(3).) Similarly, the Attorney General may authorize local law enforcement officers to perform as ICE officers when a mass influx of aliens requires an immediate response; even then, the Attorney General must act "with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving." (8 U.S.C. § 1103, subd. (a)(10).)
While the Tenth Amendment shields state and local governments from the federal government requiring them to administer federal civil immigration law, local police are not precluded from enforcing federal criminal statutes. (Gates v. Superior Court, supra, 193 Cal.App.3d at p. 215.) Thus, in theory, local police could arrest for misdemeanor improper entry into the United States. However, in California, a police officer may arrest for a misdemeanor only when that offense is committed in the officer‟s presence. (Pen. Code, § 836, subd. (a).) As the misdemeanor offense of improper entry into the United States is complete upon the improper entry itself, no California police officer can arrest for misdemeanor illegal entry once the alien has reached a place of repose. (Gates v. Superior Court, supra, 193 Cal.App.3d at pp. 215-216.) As it is extremely unlikely that an LAPD officer would make contact with an illegal alien during the course of that individual‟s illegal entry into the United States, LAPD officers generally cannot arrest aliens for illegal entry into the United States.
As LAPD officers can neither commence deportation proceedings nor arrest aliens for improper entry, they are powerless to take direct action against an individual they believe to be in this country illegally. However, LAPD officers may, " "as a matter of comity and good citizenship,‟ " voluntarily report such individuals to ICE, and it does not constitute improper local enforcement of civil immigration law for them to do so. (Gates v. Superior Court, supra, 193 Cal.App.3d at p. 219.) Many local police agencies, including the LAPD, believe that local law enforcement can best achieve its goal of crime prevention by making it known to the community that local law enforcement officers are unconcerned with immigration violations -- thereby encouraging illegal immigrants to come forward with relevant information about crimes without fear of deportation. Thus, while local police officers are permitted under federal law to voluntarily report suspected illegal aliens to ICE, some local entities have chosen to restrict such reporting. (See City of New York v. United States, supra, 179 F.3d at p. 31-32 [considering a Mayor‟s Executive Order prohibiting city officers from transmitting information regarding immigration status to federal authorities except under specified circumstances].) The LAPD did not do so. Instead, it chose to impose limits on its officers‟ ability to investigate the immigration status of aliens with whom they come into contact.
SO40 was promulgated by then-Chief of Police Daryl Gates on November 27, 1979. Special Orders are directives issued by the Chief of Police which amend the LAPD Manual. Although the parties, and, apparently, members of the community, continue to refer to the LAPD‟s policy regarding illegal immigrants as "SO40," the relevant provision is in the LAPD Manual with a different section number. Volume IV, Section 264.50 of the LAPD Manual provides, "ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS. Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry)."*fn5 Stated broadly, SO40 prevents LAPD officers from commencing investigations directed solely toward uncovering violations of civil immigration laws, and arresting for an immigration misdemeanor which is not committed within their presence.
Sturgeon‟s challenge to SO40 is based entirely on a federal statute enacted some 17 years after SO40. In 1996, Congress enacted a statute to protect the voluntary exchange of information with ICE. Section 1373 provides, "Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [ICE] information regarding the citizenship or immigration status, lawful or unlawful, of any individual."*fn6 (Section 1373(a)). The statute also provides that no person or agency may prohibit or restrict a local entity from: (1) sending such information to, or requesting and receiving such information from, ICE; (2) maintaining such information; or (3) exchanging such information with any other government entity. (Section 1373(b).) Finally, the statute requires ICE to respond to any inquiry by a federal, state, or local government agency "seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information."*fn7 (Section 1373(c).)
On May 1, 2006, Sturgeon brought this action against defendants. Sturgeon had not been personally impacted by the application of SO40; instead, he brought a so-called "taxpayer" action to enjoin the enforcement of SO40 as an illegal expenditure of public funds. (Code Civ. Proc., § 526a.) Defendants‟ demurrer was ...