Fonseca

Section 11369 of the Health and Safety Code (Section 11369) states that “[w]hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses ] 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.”

Claiming the San Francisco Police Department (SFPD) “disregards” the mandate of this statute, Charles Fonseca (appellant), a taxpayer and resident of San Francisco, filed this petition for a writ of mandate commanding that Heather J. Fong, Chief of the SFPD, and the members of the San Francisco Police Commission, and the SFPD as real party in interest (collectively respondents), all comply with Section 11369.

Respondents demurred to the petition, claiming appellant has not and cannot state a cause of action inasmuch as Section 11369 is an unlawful state immigration law per se preempted by the exclusivity of the federal government’s constitutional power to regulate in this area. After issuing an order agreeing with respondents that the statute was per se preempted and sustaining the demurrer without leave to amend, the trial…