Court Rejects Challenge to LAPD Immigration Policy

Thursday, January 21, 2010

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Court Rejects Challenge to LAPD Immigration Policy

By STEVEN M. ELLIS, Staff Writer

This district’s Court of Appeal has rejected a conservative legal group’s request to force the Los Angeles Police Department to comply with state law requiring the Department of Homeland Security to be notified of the arrest of non-citizens for certain drug offenses.

Div. Seven held Tuesday in an unpublished opinion that Judicial Watch failed to show that the LAPD’s procedure of noting foreign-born arrestees and sending that information to the Los Angeles County Sheriff’s Department, who then transmitted it to the federal government, did not meet statutory obligations.

The group filed a petition for a writ of mandamus in 2007 on behalf of taxpayer Rudy Moreno, arguing that the LAPD’s approach violated California Health and Safety Code Section 11369. The statute provides that where there is reason to believe a person arrested for one of 14 enumerated narcotics offenses may not be a citizen, “the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.”

According to Judicial Watch, when the LAPD arrests someone for a narcotics offense and determines that person was born outside of the United States, an “X” is marked in the “birthplace” field of the booking form.

The group says the information is then uploaded to the LAPD’s database and electronically transferred to a computer system used by Los Angeles County, which the Sheriff’s Department has modified to automatically notify a division of the Department of Homeland Security located in Vermont when someone born outside of the United States is arrested on a narcotics offense.

Judicial Watch argued that the “complicated, confusing, and incomplete process” was not consistent with Sec. 11369 because the Sheriff’s Department was not the “arresting agency.” The group contended that the Legislature, in singling out the drug problem, intended direct notification as a “specific requirement.”

Los Angeles Superior Court Judge David Yaffe denied the group’s request, reasoning that the group failed to prove the LAPD was not complying with the law, a decision the Court of Appeal affirmed in an opinion by Justice Laurie D. Zelon.

Noting that Judicial Watch bore the burden of showing error by the trial court, the justice said the group “failed completely to provide evidence…that establishes any violation of any law.”

She explained:

“At the hearing below, Moreno’s counsel both objected to, and attempted to rely on, the declarations submitted by LAPD in opposition to the petition.

“There were two problems with this method of attempting to satisfy the burden of proof. The first, as noted by the trial court, was that it was ‘an attempt…to change the burden of proof’….

“Equally important is the fact that the declarations demonstrated that the LAPD does provide to the federal authorities, in cooperation with the Los Angeles Sheriff’s Department, the necessary information, and that the federal government has no objection to this method of proceeding.”

Judicial Watch’s counsel, Sterling E. Norris, said he did not know his group’s next step, but commented that he thought the case was “wrongly decided,” particularly in light of the Court of Appeal’s 2008 decision in Fonseca v. Fong 167 Cal.App.4th 922 that federal immigration law does not preempt Sec. 11369.

There, Judicial Watch brought a similar suit against the San Francisco Police Department, and Presiding Justice J. Anthony Kline of First District’s Div. Two wrote that the statute was not per se pre-empted because it did not require state or local officials to determine who should or should not be admitted into the country, or define the conditions under which a legal entrant could remain.

Norris said the San Francisco Police Department was complying with the decision in Fonseca, and analogized the LAPD’s approach to “using a firehose to water the garden instead of the small sprinkler hose the statute requires.”

Representatives of the Los Angeles City Attorney’s Office, which represented the LAPD, declined comment on the decision.

Senior Assistant City Attorney Claudia McGee Henry represented the city on appeal, while Judicial Watch was also represented by David Klehm of Carlin & Buchsbaum in Long Beach.

The case is Moreno v. Bratton, B214390.

The decision marks the second rejection of challenges by Judicial Watch to the LAPD’s policies with respect to immigration status in the last year.

In June, Div. Three of this district’s Court of Appeal ruled that an LAPD directive prohibiting officers from approaching an individual for the sole purpose of inquiring about the person’s immigration status is not—on its face—pre-empted by state or federal law.

That case, Sturgeon v. Bratton 174 Cal.App.4th 1407, was brought by Judicial Watch on behalf of civil activist Harold Sturgeon, who has also been involved in the group’s challenges to the payment of benefits to supplement the salaries of Los Angeles Superior Court judges.