San Francisco skyline with Golden Gate Bridge
San Francisco skyline with Golden Gate Bridge (shutterstock)

While the city and county of San Francisco have repeatedly gone to court to challenge President Donald Trump’s efforts to financially penalize so-called “sanctuary cities” for refusing to cooperate with federal immigration enforcement agencies, San Francisco faces an immigration-related lawsuit of its own.

Taxpayer Cynthia Cerletti sued San Francisco Sheriff Vicki Hennessy and the San Francisco Sheriff’s Department earlier this year in state court seeking a declaration that the sheriff has flouted federal immigration laws by refusing to allow employees to share the release dates of suspected deportable aliens with U.S. Immigration and Customs Enforcement officials.

At a hearing on the city’s motion to knock out most of Cerletti’s claims, San Francisco Superior Court Judge Harold Kahn said the case raised “very interesting issues of federal pre-emption and legislative interpretation.”

Kahn sounded largely unpersuaded by arguments from Cerletti’s lawyer, Los Angeles-based attorney Robert Sticht, that federal immigration law explicitly pre-empts the sheriff’s directive to employees about withholding release dates. But after listening to arguments on the legislative history of the underlying federal immigration law, Kahn withdrew his tentative ruling tossing out claims based on both express and implied pre-emption.

San Francisco became a flash point in the national immigration debate after the July 2015 death of Kathryn Steinle, who was shot and killed on Pier 14 in the Embarcadero District. Juan Francisco Lopez-Sanchez, an undocumented immigrant who was released by the sheriff’s department despite a request from ICE that he be held for possible deportation, has been charged with murder and is awaiting trial.

Steinle’s family filed a wrongful death lawsuit against San Francisco and former Sheriff Ross Mirkarimi. U.S. Magistrate Judge Joseph Spero of the Northern District of California, however, dismissed the family’s claims against the city and local officials in January.

“No law required the sheriff’s department to share Lopez-Sanchez’s release date with ICE, nor did any law forbid Mirkarimi establishing a policy against such cooperation,” Spero wrote.

At Monday’s hearing, Kahn pointed out that a “release date is not immigration status,” something federal law does mandate local authorities give to immigration officials when asked.

But Sticht argued the legislative history of 8 U.S. Code Section 1373, which governs communications between government agencies and the Immigration and Naturalization Service, indicates it was “designed to prevent” policies that restrict communication between local and immigration officials.

After reading the cited legislative history, Kahn asked San Francisco Deputy City Attorney Wayne Snodgrass, “isn’t that enough to get by [on] implied pre-emption?”

“First off, the language of 1373 is clear and you don’t get to the legislative history,” Snodgrass said. “There are good reasons you don’t [need to go] to the legislative history.”

Kahn, perhaps noting the irony of a lawyer for San Francisco taking a textualist approach, said Snodgrass’ argument sounded “like [U.S. Supreme Court Justice Antonin] Scalia on legislative history.”

Kahn took the matter under submission and said he hoped to have an order out in the coming weeks.