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DENNIS J. HERRERA, State Bar #139669

City Attorney 

JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney 

RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney 

YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation 

CHRISTINE VAN AKEN, State Bar #241755 

TARA M. STEELEY, State Bar #231775 

MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303 

MATTHEW S. LEE, State Bar #295247 

NEHA GUPTA, State Bar #308864 

Deputy City Attorneys 

City Hall, Room 234 

1 Dr. Carlton B. Goodlett Place 

San Francisco, California 94102-4602 

Telephone: (415) 554-4748 

Facsimile: (415) 554-4715 

E-Mail: brittany.feitelberg@sfgov.org 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

CITY AND COUNTY OF SAN 

FRANCISCO, 

 Plaintiff, 

 vs. 

DONALD J. TRUMP, President of the United 

States, UNITED STATES OF AMERICA, 

JOHN F. KELLY, Secretary of United States 

Department of Homeland Security, 

JEFFERSON B. SESSIONS, Attorney General 

of the United States, DOES 1-100, 

 Defendants. 

Case No. 3:17-cv-00485-WHO 

FIRST AMENDED COMPLAINT FOR 

DECLARATORY AND INJUNCTIVE RELIEF 

Trial Date: Not set 

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INTRODUCTION 

1. In blatant disregard of the law, the President of the United States seeks to coerce local 

authorities to bend to his will and abandon “Sanctuary City” laws and policies. To that end, on 

January 25, 2017, the President issued an Executive Order entitled “Enhancing Public Safety in the 

Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive 

Order”). The Executive Order announces that it is the Executive Branch’s policy to withhold federal 

funds from “sanctuary jurisdictions,” directs the Attorney General and Secretary of Homeland Security 

to ensure that sanctuary jurisdictions do not receive federal grants, and directs the Attorney General to 

take enforcement action against any local entity that “hinders the enforcement of Federal law.” The 

Executive Order undermines established principles of federalism and separation of powers, violates 

the United States Constitution, and impermissibly threatens cities with catastrophic financial 

consequences. 

2. The President and San Francisco agree that the City and County of San Francisco 

(“San Francisco”) is a Sanctuary City, but disagree about what that means. San Francisco laws limit 

when city employees and agencies may assist with the enforcement of federal immigration law. These 

laws generally prohibit city employees from using city funds or resources to assist in the enforcement 

of federal immigration law, unless required by federal or state law. They specifically prohibit local law 

enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer 

requests, which are voluntary, and limit when local law enforcement officers may give ICE advance 

notice of a person’s release from local jail. 

3. Like many other cities, San Francisco is a city of immigrants—many of whom are 

undocumented—who come here to live, work, and raise families. San Francisco’s Sanctuary City laws 

make San Francisco safer, healthier, and economically stronger. San Francisco is safer when all 

people, including undocumented immigrants, feel safe reporting crimes. San Francisco is healthier 

when all residents, including undocumented immigrants, access public health programs. And 

San Francisco is economically and socially stronger when all children, including undocumented 

immigrants, attend school. Using city and county resources for federal immigration enforcement 

breeds distrust of local government and officials who have no power to change federal laws, and can 

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also wrench apart family and community structures that support residents and thus conserve resources. 

For these reasons, among others, San Francisco has directed its employees and officers not to assist the 

Federal government in enforcing federal immigration law, with limited exceptions. 

4. San Francisco faces the imminent loss of more than $2 billion in federal funds and 

impending enforcement action if it does not capitulate to the President’s demand that it help enforce 

federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat. 

5. The threat San Francisco faces now is particularly troubling given that San Francisco 

already complies with all federal immigration laws. The Executive Order relies on Title 8, Section 

1373 of the United States Code (“Section 1373”), which provides that local governments may not 

prohibit or restrict any government entity or official from “sending to, or receiving from, [federal 

immigration officials] information regarding the citizenship or immigration status . . . of any 

individual.” 

6. San Francisco’s laws comply with Section 1373. San Francisco previously prohibited 

employees and officials from sharing information regarding immigration status but amended this 

language to ensure compliance with Section 1373. Under current law, San Francisco does not prohibit 

or restrict its employees from sharing information about the citizenship or immigration status of any 

individual with federal immigration officials. Section 1373 has thus already undermined San 

Francisco’s Sanctuary City laws and intruded into its sovereign power to govern the official actions of 

its officers and employees. San Francisco will bend no further. 

7. The Executive Order is a further and more severe invasion of San Francisco’s 

sovereignty. The Executive Order not only interferes with San Francisco’s ability to direct the official 

actions of its officers and employees but also threatens new consequences for failing to comply with 

Section 1373. In this action, San Francisco seeks declaratory relief that Section 1373 and the 

Executive order are unconstitutional on their face and as applied to state and local Sanctuary City laws 

such as San Francisco’s. The Executive Branch may not commandeer state and local officials to 

enforce federal law. 

8. The Constitution establishes a balance of power between the state and Federal 

governments, as well as among the coordinate branches of Federal government, to prevent the 

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excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from 

any government office. In so doing, the Tenth Amendment provides that “[t]he powers not delegated 

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States 

respectively, or to the people.” This state sovereignty extends to political subdivisions of the State, 

including cities and counties such as San Francisco. 

9. This lawsuit is about state sovereignty and a local government’s autonomy to devote 

resources to local priorities and to control the exercise of its own police powers, rather than being 

forced to carry out the agenda of the Federal government. Under the Constitution and established 

principles of federalism, state and local governments have this autonomy. The Executive Order 

purports otherwise to wrest this autonomy from state and local governments, and a court order is 

needed to resolve this controversy. 

10. This lawsuit is also about the separation of powers established by Article 1, Section 8 

of the Unites States Constitution. Congress, not the Executive Branch, has the authority to determine 

how federal funds will be spent. 

11. San Francisco recognizes that there will be additional developments related to the 

Executive Order in the weeks and months to come. But the consequences threatened by the Executive 

Order are too severe for San Francisco to wait. The Executive Order threatens funds that support vital 

services, the loss of community trust, and the loss of San Francisco’s sovereign authority to set and 

follow its own laws on matters appropriately and historically within the control of local government. 

San Francisco has no choice but to seek the intervention of this Court to ensure that its rights and 

residents are protected, and that the Administration complies with Federal law and the Constitution. 

12. San Francisco seeks declaratory and injunctive relief against the United States of 

America and the above-named federal officials for violating the Tenth Amendment, U.S. Const. 

amend. X. San Francisco further seeks a declaration that it complies with Title 8, Section 1373 of the 

United States Code (“Section 1373”) under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 

and 2202 et seq. 

// 

// 

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JURISDICTION AND VENUE 

13. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court has 

further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et 

seq. 

14. Venue properly lies within the Northern District of California because Plaintiff, 

San Francisco, resides in this judicial district and a substantial part of the events or omissions giving 

rise to this action occurred in this District. 28 U.S.C. § 1391(e). 

PARTIES 

15. Plaintiff San Francisco is a municipal corporation organized and existing under and by 

virtue of the laws of the State of California, and is a charter city and county. 

16. Defendant Donald J. Trump is the President of the United States. He is sued in his 

official capacity. 

17. Defendant United States of America is sued under 28 U.S.C. Section 1346. 

18. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the 

United States Federal government with the primary mission of securing the United States. Defendant 

John F. Kelly is the Secretary of DHS. Secretary Kelly is responsible for executing relevant provisions 

of the Executive Order. Secretary Kelly is sued in his official capacity. 

19. The Attorney General (“AG”) is a cabinet department of the United States Federal 

government overseeing the Department of Justice. Defendant Jefferson B. Sessions is the Attorney 

General. Attorney General Sessions is responsible for executing relevant provisions of the Executive 

Order. Attorney General Sessions is sued in his official capacity.1

20. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the 

true names or capacities of said Defendants, who were responsible for the alleged violations alleged, 

but pray that the same may be alleged in this complaint when ascertained. 

// 

// 

 1

 Attorney General Sessions assumed office on February 9, 2017, thereby replacing Acting 

Attorney General Dana J. Boente as a defendant, pursuant to Fed. R. Civ. P. 25(d). 

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FACTUAL ALLEGATIONS 

I. SAN FRANCISCO’S SANCTUARY CITY LAWS 

21. San Francisco has been a Sanctuary City since 1989. In the 1980s, thousands of Central 

American refugees fled countries in the midst of violent civil wars to seek legal protection in the 

United States. Against the backdrop of this humanitarian crisis, San Francisco began enacting the 

ordinances that, as later amended, make up San Francisco’s Sanctuary City laws. 

22. Numerous other municipalities have also enacted Sanctuary City laws. Although the 

details of their ordinances differ, all of these jurisdictions have adopted laws or policies that limit 

using local resources to implement and enforce federal immigration laws. 

23. Today, San Francisco’s body of Sanctuary City law is contained in two chapters of 

San Francisco’s Administrative Code: Chapters 12H and 12I. Importantly, these chapters do not 

protect criminals or prevent people from being prosecuted for illegal acts. Instead, they protect 

children by ensuring that their parents feel safe taking them to playgrounds, to schools, and to 

hospitals. They support family stability and community engagement. And they protect the safety and 

health of all residents of San Francisco by helping to ensure that everyone, including undocumented 

immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical 

care. 

24. San Francisco Administrative Code Chapter 12H—the full text of which is attached as 

Exhibit 1—prohibits San Francisco departments, agencies, commissions, officers, and employees from 

using San Francisco funds or resources to assist in the enforcement of Federal immigration law or to 

gather or disseminate information regarding the release status, or other confidential identifying 

information, of an individual unless such assistance is required by Federal or state law. 

25. Chapter 12H previously prohibited disseminating information regarding the 

immigration status of any individual, but the Board of Supervisors amended Chapter 12H in July 2016 

to, inter alia, delete that prohibition in order to ensure compliance with Section 1373. 

26. San Francisco Administrative Code Chapter 12I—the full text of which is attached as 

Exhibit 2—prohibits San Francisco law enforcement officials from detaining an individual who is 

// 

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otherwise eligible for release from custody on the basis of a civil immigration detainer request issued 

by the Federal government.2

27. A detainer request is distinct from a criminal warrant, which San Francisco honors 

consistent with its Sanctuary City laws. A detainer request is not issued by a judge based on a finding 

of probable cause. It is simply a request by ICE that a state or local law enforcement agency hold 

individuals after their release date to provide ICE agents extra time to decide whether to take those 

individuals into federal custody and then deport them. 

28. Complying with detainer requests requires municipalities to commit scarce law 

enforcement personnel and resources to track and respond to requests, detain individuals in holding 

cells, and supervise and feed individuals during the prolonged detention. And the Federal government 

has made clear that the local agency bears the financial burden of the detention, providing that “[n]o 

detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal 

obligation on the part of the Department.” 8 C.F.R. § 287.7(e). 

29. Further, complying with civil immigration detainer requests, in the absence of a 

probable cause determination, violates the Fourth Amendment to the United States Constitution and 

could subject San Francisco to civil liability. See Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 

2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014); see also 

Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to 

immigration arrests). 

30. Chapter 12I also prohibits San Francisco law enforcement officials from responding to 

a federal immigration officer’s request for advance notification of the date and time an individual in 

San Francisco’s custody is being released, unless the individual in question meets certain criteria. See 

S.F. Admin. Code § 12I.3(c), (d). 

 2

 Section 287.7 of Title 8 of the Code of Federal Regulations allows ICE to issue detainer 

requests to local jurisdictions. Section 287.7 provides that such a detainer “serves to advise another 

law enforcement agency that the Department seeks custody of an alien presently in the custody of that 

agency, for the purpose of arresting and removing the alien.” Subsection (d) provides that “[u]pon a 

determination by the Department to issue a detainer for an alien not otherwise detained by a criminal 

justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, 

excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the 

Department.” 

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31. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall 

not arrest or detain an individual, or provide any individual’s personal information to a federal 

immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil 

immigration document based solely on alleged violations of the civil provisions of immigration laws.” 

See Section 12I.3(e). “Personal information” is defined as “any confidential, identifying information 

about an individual, including, but not limited to, home or work contact information, and family or 

emergency contact information.” See Section 12I.2. 

32. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to 

federal civil immigration detainers, notification of release of individuals, transmission of personal 

information, or civil immigration documents, based solely on alleged violations of the civil provisions 

of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement 

agencies may continue to collaborate with federal authorities to protect public safety.” See Section 

12I.4. 

33. San Francisco’s Sanctuary City laws arise from San Francisco’s commitment and 

responsibility to ensure public safety and welfare. The Board of Supervisors, as San Francisco’s 

legislative body, found that public safety is “founded on trust and cooperation of community residents 

and local law enforcement.” Section 12I.1. Citing a study by the University of Illinois, which found 

that at least 40% of Latinos surveyed were less likely to provide information to police because they 

feared exposing themselves, family, or friends to a risk of deportation, the Legislature stated that “civil 

immigration detainers and notifications regarding release undermine community trust of law 

enforcement by instilling fear in immigrant communities of coming forward to report crimes and 

cooperate with local law enforcement agencies.” Id.; see also id. (“The City has enacted numerous 

laws and policies to strengthen communities and to build trust between communities and local law 

enforcement. Local cooperation and assistance with civil immigration enforcement undermines 

community policing strategies.”). Indeed, a recent study shows that crime is statistically significantly 

lower in sanctuary counties compared to non-sanctuary counties. See Tom K. Wong, The Effects of 

Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017), 

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https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effectsofsanctuary-policies-on-crime-and-the-economy/. 

34. The legislative findings set forth in Chapter 12I evidence the legitimate local purpose of 

San Francisco’s Sanctuary City laws. For example, the Legislature declared: 

Fostering a relationship of trust, respect, and open communication between City 

employees and City residents is essential to the City’s core mission of ensuring 

public health, safety, and welfare, and serving the needs of everyone in the 

community, including immigrants. The purpose of this Chapter 12I, as well as 

of Administrative Code Chapter 12H, is to foster respect and trust between law 

enforcement and residents, to protect limited local resources, to encourage 

cooperation between residents and City officials, including especially law 

enforcement and public health officers and employees, and to ensure 

community security, and due process for all. (See Section 12I.2.) 

35. The Board of Supervisors also had a public health purpose for its decision to restrict 

disclosure of confidential information: “To carry out public health programs, the City must be able to 

reliably collect confidential information from all residents . . . . Information gathering and cooperation 

may be jeopardized if release of personal information results in a person being taken into immigration 

custody.” Section 12I.1. 

36. Finally, the Board of Supervisors determined that enforcing immigration detainer 

requests would require San Francisco to redirect scarce local law enforcement personnel and 

resources—noting that the costs of “responding to a civil immigration detainer can include, but [are] 

not limited to, extended detention time, the administrative costs of tracking and responding to 

detainers, and the legal liability for erroneously holding an individual who is not subject to a civil 

immigration detainer.” Id. In short, the Board of Supervisors concluded that “[c]ompliance with civil 

immigration detainers and involvement in civil immigration enforcement diverts limited local 

resources from programs that are beneficial to the City.” Id.

37. San Francisco departments have adopted and implemented policies consistent with 

Chapters 12H and 12I. 

38. California law incorporates local Sanctuary City laws such as Chapters 12H and 12I. 

The TRUST Act states that local law enforcement officials may comply with ICE detainer requests 

only if (1) the continued detention would not violate any federal, state, or local law, or any local 

policy, and (2) the defendant’s criminal history meets specified conditions. Cal. Gov’t Code §§ 7282, 

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7282.5. Thus, because in San Francisco ICE detentions are prohibited under local law, they are also 

prohibited under state law. 

II. SECTION 1373 

A. San Francisco Complies With Section 1373 By Not Prohibiting Its Employees 

From Sharing “Citizenship Or Immigration Status” Information With The 

Federal Government. 

39. Section 1373 provides that a “local government entity or official may not prohibit, or in 

any way restrict, any government entity or official from sending to, or receiving from, [federal 

immigration officials] information regarding the citizenship or immigration status . . . of any 

individual.” 8 U.S.C. § 1373(a). This restriction exclusively regulates government entities. 

40. Section 1373 requires San Francisco to allow its employees to use city resources, 

including San Francisco tax dollars, to respond to requests for information about citizenship and 

immigration status. 

41. San Francisco complies with Section 1373. 

42. Nothing in San Francisco Administrative Code Chapters 12H or 12I limits 

communications regarding citizenship or immigration status in any way. 

43. And, indeed, under ICE’s recently restored Secure Communities program (also known 

as “S-Comm”), whenever an individual is taken into custody, the person is digitally fingerprinted and 

those fingerprints are sent to the California Department of Justice and ultimately the FBI. The FBI 

forwards the fingerprints to DHS, which allows ICE to determine the immigration status of everyone 

in San Francisco custody. 

44. Under Chapter 12I and the TRUST Act, San Francisco does not enforce detainer 

requests (see ¶26, supra), and does not respond to notification requests from the Federal government 

unless certain conditions are met (see ¶30, supra). But compliance with such requests is not required 

by Section 1373, which speaks only to communications regarding citizenship and immigration status. 

45. San Francisco has affirmatively instructed personnel regarding the substance of Section 

1373 in a recent memorandum to all San Francisco employees from the San Francisco Human 

Resources Director. 

// 

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46. The San Francisco Board of Supervisors is currently considering a proposed ordinance 

that would prohibit San Francisco officers and employees from using San Francisco resources to assist 

with the creation or enforcement of any registry of individuals on the basis of religious affiliation, 

national origin, or ethnicity. See San Francisco Board of Supervisors, Board File No. 170092, S.F. 

Admin. Code – Non-Cooperation with Identity-Based Registry, introduced January 24, 2017, last 

amended February 22, 2017. The proposed ordinance specifically exempts from its scope 

communications about citizenship or immigration status authorized by Section 1373, and allows those 

communication until a court of competent jurisdiction declares Section 1373 unconstitutional. 

Findings for the proposed ordinance explain that it is San Francisco’s position that Section 1373 is 

unconstitutional, but that San Francisco will continue to comply with Section 1373 until it obtains 

Court relief. 

B. The United States Improperly Interprets Section 1373 To Require Compliance 

With Detainer Requests. 

47. On May 31, 2016, in response to a request from the Office of the Attorney General, the 

Office of the Inspector General (“OIG”) of the Department of Justice issued a memorandum (“OIG 

Memo”) regarding potential violations of Section 1373 by recipients of funding from the Edward 

Byrne Memorial Justice Assistance Grant Program (“JAG”). Memorandum from Michael E. 

Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs, 

Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant 

Recipients (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf.3

 

48. In analyzing the local laws and policies of ten selected state and local jurisdictions, OIG 

demonstrated how the Federal government interprets Section 1373. 

49. Although Section 1373 does not expressly address immigration detainers, OIG 

expressed concern that local laws concerning the handling of detainer requests “may have a broader 

practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, 

 3

 The authorizing legislation for the JAG program requires that all grant applicants certify 

compliance with the provisions of the authorizing legislation and all other “applicable federal laws.” 

42 U.S.C. § 3750 et seq. The U.S. Department of Justice, Office of Justice Programs has recently 

announced that Section 1373 is an “applicable” law under the JAG authorizing legislation. 

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be inconsistent with at least the intent of Section 1373.” OIG Memo at 7. It went on to state that local 

laws and policies that “purport to be focused on civil immigration detainer requests [and say nothing 

about sharing immigration status with ICE] . . . may nevertheless be affecting ICE’s interactions with 

the local officials regarding ICE immigration status requests.” Id. 

50. OIG also stated that such immigration detainer request policies “may be causing local 

officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE 

in all respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id.

at 8. 

51. In the OIG Memo, the Federal government also endorses the view that local 

jurisdictions hinder the enforcement of Federal immigration law if they do not honor detainer requests 

or if they place any other limitations on cooperation with ICE. See, e.g., id. at 4 (stating that even 

though Section 1373 does not specifically address restrictions by state or local entities on cooperation 

with ICE regarding detainers, “[a] primary and frequently cited indicator of limitations placed on 

cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction 

handles immigration detainer requests issued by ICE”). 

52. Yet, San Francisco cannot lawfully comply with ICE detainer requests. Complying with 

civil immigration detainer requests, in the absence of a determination of probable cause, would violate 

the Fourth Amendment to the United States Constitution and could subject San Francisco to civil 

liability for this harm. See Arizona v. United States, 132 S. Ct. 2492, 2509 (2012) (noting that 

“[d]etaining individuals solely to verify their immigration status would raise constitutional concerns”); 

Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., 

2014 WL 1414305 (D. Or. Apr. 11, 2014); see also Melendres v. Arpaio, 695 F.3d 990, 1000-01 (9th 

Cir. 2012) (applying the Fourth Amendment to immigration arrests). 

53. In the OIG Memo, OIG recommended that the U.S. Department of Justice, Office of 

Justice Programs (“OJP”) provide JAG recipients clear guidance on their obligation to comply with 

Section 1373 and require them to certify that they comply with that section. See OIG Memo at 9. 

54. In response to these recommendations, in July and October 2016 OJP issued guidance 

regarding compliance with Section 1373. See Office of Justice Programs, Guidance Regarding 

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Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST. (July 7, 2016) (“OJP July Guidance”); Office of 

Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. DEP’T JUST. 

(October 6, 2016) (“OJP October Guidance”). 

55. In the OJP July Guidance, OJP reads Section 1373 to impose an affirmative obligation 

on state and local governments. The Guidance states that to comply with Section 1373, “[y]our 

personnel must be informed that notwithstanding any state or local policies to the contrary, federal law 

does not allow any government entity or official to prohibit the sending or receiving of information 

about an individual’s citizenship or immigration status with any federal, state or local government 

entity and officials.” OJP July Guidance at 1 (emphasis added). Accordingly, OJP reads into the law 

an affirmative obligation to instruct personnel regarding the substance of Section 1373. 

56. In the October 2016 Guidance, OIG stated that all JAG applicants must comply with—

and certify their compliance with—Section 1373. OJP October Guidance at 1. 

57. As a subgrantee of a JAG grant, San Francisco is required to certify its compliance with 

Section 1373. 

III. THE EXECUTIVE ORDER 

A. The Executive Order Cuts Off Federal Funding From Sanctuary Jurisdictions 

And Directs Enforcement Action Against Them. 

58. On January 25, 2017, President Donald J. Trump issued the Executive Order attached 

as Exhibit 3. 

59. The Executive Order declares, “Sanctuary jurisdictions across the United States 

willfully violate Federal law in an attempt to shield aliens from removal from the United States. These 

jurisdictions have caused immeasurable harm to the American people and to the very fabric of our 

Republic.” Executive Order at 8799. 

60. To address the purported harm caused by Sanctuary Cities, the Executive Order 

establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not receive 

Federal funds, except as mandated by law.” Id.

// 

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61. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the 

executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a 

State, shall comply with 8 U.S.C. 1373.” Id. at 8801. 

62. Section 9(a) of the Executive Order establishes a funding restriction (the “Funding 

Restriction”): 

In furtherance of this policy, the Attorney General and the Secretary, in their discretion 

and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse 

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive 

Federal grants, except as deemed necessary for law enforcement purposes by the 

Attorney General or the Secretary. The Secretary has the authority to designate, in his 

discretion and to the extent consistent with law, a jurisdiction as a sanctuary 

jurisdiction. 

Id.

63. Section 9(a) of the Executive Order also mandates enforcement action (the 

“Enforcement Directive”): 

The Attorney General shall take appropriate enforcement action against any entity that 

violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents 

or hinders the enforcement of Federal law. 

Id. 

64. Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those 

jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” But Section 9(b) indicates that 

Defendants in fact define that category quite broadly as including any jurisdiction that declines to 

comply with ICE detainer requests: 

To better inform the public regarding the public safety threats associated with 

sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer 

Outcome Report or its equivalent and, on a weekly basis, make public a 

comprehensive list of criminal actions committed by aliens and any jurisdiction 

that ignored or otherwise failed to honor any detainers with respect to such 

aliens. 

65. The Executive Order thus attempts to mandate compliance with detainer requests as 

part of Section 1373 compliance, with the consequence that a jurisdiction such as San Francisco that 

does not comply with ICE detainer requests will lose federal funds under the Executive Order. 

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66. A jurisdiction that fails to comply with detainer requests also faces enforcement action 

under Section 9(a)’s Enforcement Provision. As discussed further below, Defendants view the local 

decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or 

hinders the enforcement of Federal law.” 

B. Defendants Have Labeled San Francisco A Sanctuary Jurisdiction Within The 

Meaning Of The Executive Order. 

67. As discussed above, San Francisco does comply with Section 1373, properly construed. 

Nonetheless, Defendants deem San Francisco a sanctuary jurisdiction pursuant to their overly broad 

definition of that term. 

68. If there were any question about whether Defendants deem San Francisco as a 

“sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which clearly 

characterize San Francisco as a Sanctuary City. 

69. For example, in a written campaign speech, then-candidate Donald J. Trump gave in 

Phoenix, Arizona on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City. See

Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration (“Another 

victim is Kate Steinle, gunned down in the Sanctuary City of San Francisco by an illegal immigrant 

deported five previous times.”). 

70. Further, Defendants have repeatedly identified Sanctuary Cities, and specifically 

San Francisco, as those that decline detainer requests and otherwise do not affirmatively support 

federal immigration enforcement. 

• In statements to the Daily Caller on July 7, 2015, Congressman Darrell Issa and 

now-Attorney General Sessions criticized San Francisco and other sanctuary 

jurisdictions for failing to honor detainers. Sessions stated, “This disregarding of 

detainers and releasing persons that ICE has put a hold on—it goes against all 

traditions of law enforcement. Laws and courtesies within departments— if you 

have somebody charged with a crime in one city, you hold them until you complete 

your business with them . . . . So what was happening was, ICE authorities were 

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filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them. 

They finished paying for the crime they committed in our city— we’ve released 

them.’” Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant 

Felons Could Be Charged with Crime, Daily Caller (July 7, 2015, 10:07 PM), 

http://dailycaller.com/2015/07/07/sen-sessions-city-officials-harboring-illegalimmigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux. 

• On July 8, 2015, Sessions gave a speech to Congress describing San Francisco as “a 

jurisdiction that is known to release illegal immigrants back into the public,” and 

one which refused to “honor” a detainer sought by federal authorities. News 

Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress To 

Take Up Immigration Reform for Americans (July 9, 2015), 

http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=B7A98B63-

8ECA-4A4E-B5C8-4A665F2343DE. 

• In an interview with Breitbart News in May 2016, then-candidate Donald J. Trump 

stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and 

people that should not have a safe-haven in many cases. It’s just unacceptable. 

We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive — 

Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’ 

Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016), 

http://www.breitbart.com/2016-presidential-race/2016/05/16/exclusive-donald-jtrump-to-san-francisco-sanctuary-cities-unacceptable-a-disaster-creating-safehaven-for-criminals/. This Breitbart news report further stated that “Trump’s 

comments . . . come in response to efforts by far left progressive organizations in 

San Francisco to expand that city’s sanctuary city laws.” Id.

• Another Breitbart News article published on November 21, 2016 regarding 

Sanctuary Cities quoted Texas Republican Congressman John Culberson as stating, 

“The law requires cooperation with immigration officials 100 percent of the time.” 

Bob Price, Sanctuary Cities Risk Losing DOJ Funds in 2017, Texas Congressman 

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Says, Breitbart News (Nov. 21, 2016), 

http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds2017-texas-congressman-says/. 

71. Defendants have also repeatedly stated their intent to strip federal funding from 

Sanctuary Cities. 

 In a statement by White House Press Secretary Sean Spicer on January 25, 2017 

announcing the issuance of the Executive Order, Spicer stated, “We are going to 

strip federal grant money from the sanctuary states and cities that harbor illegal 

immigrants. The American people are no longer going to have to be forced to 

subsidize this disregard for our laws.” White House, 1/25/17: White House Press 

Briefing, YouTube (Jan. 25, 2017), 

https://www.youtube.com/watch?v=OaPriMVvtZA. 

 A press release from the Office of the Press Secretary for the White House issued 

on January 28, 2017 detailing President Trump’s First Week of Action, reads in 

relevant part: “President Trump signed an executive order to ensure that 

immigration laws are enforced throughout the United States, including halting 

federal funding for sanctuary cities.” Press Release, The White House, Office of the 

Press Secretary, President Trump’s First Week of Action (Jan. 28, 2017), 

https://www.whitehouse.gov/the-press-office/2017/01/28/president-trumps-firstweek-action. 

 Press Secretary Sean Spicer reiterated this goal on February 1, 2017, stating “I think 

the President’s goal in ending sanctuary cities is pretty clear. . . . [T]he President 

has been very clear through his executive order that federal funds, paid for by 

hardworking taxpayers, should not be used to help fund sanctuary cities.” Press 

Release, The White House, Office of the Press Secretary, Press Briefing by Press 

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), 

https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-presssecretary-sean-spicer-212017-6. 

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72. Indeed, Defendants have explicitly stated their intent to use federal funding cuts as a 

“weapon” against Sanctuary Cities, in an attempt to coerce jurisdictions to bend to their will. 

 In an interview with Bill O’Reilly on February 5, 2017, President Trump called the 

efforts of California lawmakers to propose legislation that could stop state police and 

sheriffs from enforcing federal immigration laws “ridiculous.” Alexander Mallin and 

Lissette Rodriguez, Trump Threatens Defunding Sanctuary States as 'Weapon', ABC 

News (Feb. 5, 2017, 6:01 PM), http://abcnews.go.com/Politics/trump-threatensdefunding-sanctuary-states-weapon/story?id=45286642. He stated: “I don't want to 

defund anybody. I want to give them the money they need to properly operate as a 

city or a state.” But he said, “If they’re going to have sanctuary cities, we may have 

to do that. Certainly that would be a weapon.” Id. “Sanctuary cities, as you know I’m 

very much opposed to sanctuary cities -- they breed crime, there’s lots of problems.” 

Id. “We give tremendous amounts of money to California,” Trump said. “Obviously 

the voters agree or otherwise they wouldn't have voted for me.” Id. 

 When asked at a press briefing whether Cincinnati would face sanctions for voting to 

become a Sanctuary City, Sean Spicer, the President’s press secretary stated: 

As I’ve noted before, at the end of the day, this order is about two 

things: one, keeping our cities safe, and two, respecting the hardearned taxpayers who send their money to the federal government. 

And the President is going to do everything he can within the scope 

of the executive order to make sure that cities who don’t comply 

with it -- counties and other institutions that remain sanctuary cities 

don’t get federal government funding in compliance with the 

executive order. I think more areas like Miami-Dade, down in 

Florida, understand the importance of this order, and we hope cities 

like Cincinnati and other communities around the country follow 

their lead and comply with that. 

Press Release, The White House, Office of the Press Secretary, Press Briefing by 

Press Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), 

https://www.whitehouse.gov/the-press-office/2017/02/08/press-briefing-presssecretary-sean-spicer-282017-10. 

// 

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73. The White House’s public website states that President Trump “is dedicated to 

enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated 

with illegal immigration.” Standing Up For Our Law Enforcement Community, The White House, 

https://www.whitehouse.gov/law-enforcement-community (last visited on Feb. 27, 2017) (emphasis 

added). 

74. Defendants’ statements demonstrate their belief that Sanctuary Cities, like 

San Francisco, violate Section 1373 and their intent that Sanctuary Cities will lose federal funding—

apparently all or almost all federal funding—and be subject to enforcement action under the Executive 

Order. 

75. There is a “credible threat” that Defendants will seek to enforce the unconstitutional 

Executive Order against San Francisco. 

IV. SECTION 1373 AND THE EXECUTIVE ORDER HARM SAN FRANCISCO 

A. Constitutional Injury 

1. Section 1373(a) Violates The Tenth Amendment. 

76. Congress may not command States to provide the Federal government with information 

“that only state officials have access to.” Printz v. United States, 521 U.S. 898, 932 n.17 (1997). The 

Federal government must not regulate its fellow governments in their capacities as governments. 

77. Yet, that is exactly what Section 1373(a) does. Section 1373(a) unconstitutionally 

regulates “States in their sovereign capacity.” Reno v. Condon, 528 U.S. 141, 151 (2000). It 

necessarily regulates governments in their capacities as governments. It does not “subject state 

governments to generally applicable laws.” New York v. U.S., 505 U.S. 144, 160 (1992). On the 

contrary, in every possible application, it targets “government entit[ies] or official[s]” for special 

treatment. 8 U.S.C. § 1373(a). 

78. Also, Section 1373(a) targets government entities’ and officials’ authority to control 

their subordinates—an authority at the heart of a government’s existence as a government. “[A] State 

can act only through its officers and agents.” Nevada v. Hicks, 533 U.S. 353, 365 (2001). “Through the 

structure of its government, and the character of those who exercise government authority, a State 

defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). 

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79. By preventing state and local governments from directing employees how to handle 

information about citizenship and immigration status, Section 1373 makes it impossible for local 

jurisdictions to freely choose and to clearly establish how they will handle this information. Under 

Section 1373, San Francisco cannot command its government officials and employees never to share 

citizenship or immigration information. Yet Congress has no power “to require the States to govern 

according to Congress’ instructions.” New York, 505 U.S. at 162. 

80. Section 1373 mandates uncertainty where Sanctuary City laws seek to provide 

certainty. Because of Section 1373, San Francisco cannot tell the public that it will never share 

information about citizenship or immigration status. Any attempt to impose a uniform rule is fettered 

by the individual discretion of over 30,000 employees and officials. This is not the way San Francisco 

chooses to govern. It is chaos imposed by the Federal government. 

81. Through its Sanctuary City laws, policies, and practices, San Francisco has sought to 

distinguish local law enforcement officers from federal immigration enforcement officers in order to 

encourage local government accountability and public confidence in local law enforcement. As 

applied against these local governance efforts, Section 1373 would violate a core principle underlying 

the Tenth Amendment, namely, the accountability of state and Federal government officials to their 

electorates. See Printz, 521 U.S. at 929–30. 

82. Defendants’ broader interpretation of Section 1373—to require compliance with 

“voluntary” ICE detainer requests—implicates additional constitutional injury. This interpretation 

would affirmatively require San Francisco to use local resources to detain and hold people without 

probable cause, in violation of both the Fourth and Tenth Amendments. 

2. The Executive Order Violates The Tenth Amendment, Separation Of 

Powers, And The Spending Clause. 

a. The Executive Order Funding Restriction Is Unconstitutional. 

i. Tenth Amendment 

83. To the extent the Executive Order’s Funding Restriction incorporates Section 1373(a), 

it is invalid for all of the reasons described above. The Funding Restriction is also unconstitutional for 

the additional reasons described below. 

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ii. Separation of Powers 

84. As a threshold matter, the Funding Restriction purports to exercise Spending Power that 

Article I, Section 8 of the Constitution grants exclusively to Congress. 

85. The Executive Order violates the separation of powers by creating a penalty for Section 

1373 that Congress did not authorize, without regard to statutory rules on grant programs put in place 

by Congress. The Executive Order effectively legislates a sanction for violations of Section 1373 by 

using the statute as a basis to broadly deny federal grants to municipalities that have made a policy 

decision to focus law enforcement resources on local problems and limit their entanglement with 

federal immigration enforcement. The President’s unilateral imposition of this new sanction and 

condition on spending is not supported by any act of Congress, including the Immigration and 

Nationality Act, 8 U.S.C. § 1101 et seq., or by the Constitution. 

86. The Funding Restriction additionally violates the separation of powers by imposing a 

new restriction on jurisdictions’ eligibility to receive federal funds: “jurisdictions that willfully refuse 

to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, 

except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” 

Executive Order at 8801. 

87. The President may not unilaterally impose new restrictions on jurisdictions’ eligibility 

for federal funding. Any restriction on eligibility for federal funds must be imposed—clearly, 

unambiguously, and in advance—by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 

1, 17 (1981). When Congress has not imposed such a restriction by statute, the President may not do 

so by fiat. The President does not have “unilateral power to change the text of duly enacted statutes.” 

Clinton v. City of New York, 524 U.S. 417, 447 (1998). 

88. Congress has spoken to reject the imposition of such funding restrictions, including 

when it declined to enact Senate Bill 1842, “Protecting American Lives Act,” introduced in July 2015 

by then-Senator Attorney General Jeff Sessions. The bill would in part have expanded Section 1373 to 

deprive jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement 

officers of the State, or of a political subdivision of the State, from assisting or cooperating with 

Federal immigration law enforcement in the course of carrying out the officers’ routine law 

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enforcement duties” of “any . . . law enforcement or Department of Homeland Security grant.” S. 

1842, 114th Cong. § 3 (2015). Senate Bill 1842 did not make it out of committee, nor did the identical 

House of Representatives Bill 3437. Where the President “takes measures incompatible with 

the expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube 

Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). 

89. By imposing conditions or limitations on federal spending without express statutory 

authority, the Executive Order also unlawfully exceeds the President’s powers under other provisions 

of the Constitution that establish the separation of powers among the branches of our government, 

including: (i) the President’s obligation to “take Care that the Laws be faithfully executed,” U.S. 

Const. art. II, § 3, cl. 5 (Take Care Clause), and (ii) the limitation that Congressional enactments must 

“be presented to the President of the United States,” who then may sign that enactment or veto it, but 

has no power to merely revise it, either upon presentment or after enactment, U.S. Const. art. I, § 7, 

cls. 2-3 (Presentment Clause). 

iii. Spending Clause 

90. Further, the Funding Restriction purports to exercise Spending Power in ways that even 

Congress could not. 

91. The Funding Restriction violates the Spending Clause by imposing new funding 

conditions on existing appropriations of federal funds. “[I]f Congress intends to impose a condition on 

the grant of federal moneys, it must do so unambiguously,” in advance. Pennhurst, 451 U.S. at 17. 

“The legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the 

State voluntarily and knowingly accepts” Congress’s conditions. Id. “There can, of course, be no 

knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of 

it.” Id.

92. The Funding Restriction also violates the Spending Clause by imposing funding 

conditions that are not germane to the purpose of the funds. “[T]he imposition of conditions under the 

spending power” must be “germane” or “related” to the purpose of federal funding. South Dakota v. 

Dole, 483 U.S. 203, 208-09 & n.3 (1987); see also Massachusetts v. United States, 435 U.S. 444, 461 

(1978). Here, the Funding Restriction conditions eligibility for federal funding on compliance with 

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Section 1373, without regard for whether Section 1373 is germane to any federal funds at issue. In 

fact, the Funding Restriction specifically exempts those federal funds—funds “deemed necessary for 

law enforcement purposes”—that might arguably be germane to Section 1373. 

93. The Funding Restriction also imposes conditions so severe that they “cross[] the line 

distinguishing encouragement from coercion.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 

2603 (2012) (opinion of Roberts, C.J.); New York v. United States, 505 U.S. 144, 175 (1992). The 

Funding Restriction “is much more than ‘relatively mild encouragement’—it is a gun to the head.” 

Sebelius, 132 S. Ct. at 2604 (opinion of Roberts, C.J.). The Funding Restriction threatens a substantial 

percentage of San Francisco’s overall budget—approximately 13% of its total annual operating 

budget, even without considering federal multi-year grants. Threatened funds include the entire 

funding stream for programs, such as Medicaid, that are critical to the lives of San Francisco’s 

residents. Threats of this magnitude, and to such critical programs, constitute “economic dragooning 

that leaves the States with no real option but to acquiesce” to federal dictates. Id. at 2605. 

94. Finally, because Defendants interpret Section 1373 to require jurisdictions to comply 

with immigration detainers, the Funding Restriction imposes a new funding condition that requires 

jurisdictions to act unconstitutionally. Under the Fourth Amendment, detention of an individual must 

be supported by a determination of probable cause. See Morales v. Chadbourne, 793 F.3d 208, 215–17 

(1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Or. Apr. 11, 2014). 

Requiring state and local governments (including San Francisco) to establish blanket policies of 

compliance with immigration detainers could thus cause them to violate the Fourth Amendment. But 

Congress’s Spending Power “may not be used to induce the States to engage in activities that would 

themselves be unconstitutional.” Dole, 483 U.S. at 210. 

95. This concern is heightened by the fact that state and local governments, including 

San Francisco, generally lack authority to make warrantless arrests under the Federal government’s 

civil immigration laws. See Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). It is further 

heightened by the prospect that “ICE’s issuance of detainers that seek to detain individuals without a 

warrant goes beyond its statutory authority to make warrantless arrests.” Moreno v. Napolitano, No. 

11-C-5452, 2016 WL 5720465, at *8 (N.D. Ill. Sept. 30, 2016). 

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96. For all these reasons, the Funding Restriction violates the Constitution’s separation of 

powers (and, in particular, the Constitution’s grant of legislative power to Congress in Article I, 

Section 1); the Spending Clause of Article I, Section 8; and the Tenth Amendment. 

b. The Executive Order Enforcement Directive Is Unconstitutional. 

97. The Executive Order’s Enforcement Directive violates the Tenth Amendment. The 

Enforcement Directive commandeers state and local governments by, inter alia, compelling them to 

enforce federal law under threat of legal action. 

98. The Enforcement Directive mandates that “[t]he Attorney General shall take 

appropriate enforcement action against any entity that violates 8 U.S.C. 1373.” Executive Order at 

8801. As discussed above, Defendants interpret Section 1373 to require jurisdictions to comply with 

immigration detainers. 

99. The Enforcement Directive also mandates “enforcement action against any entity 

that . . . has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal 

law.” Executive Order at 8801. As discussed above, Defendants interpret a state or local government’s 

decision not to comply with ICE detainer requests as a “statute, policy, or practice that prevents or 

hinders the enforcement of Federal law.” 

100. The Enforcement Directive thus mandates that the Attorney General take enforcement 

action against state and local governments that do not detain individuals at the behest of the Federal 

government. 

101. Compelling state and local governments to detain individuals at the behest of the 

Federal government violates the Tenth Amendment. “[T]he Federal Government may not compel the 

States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United 

States, 521 U.S. 898, 925 (1997). To “command state or local officials to assist in the implementation 

of federal law” is to engage in impermissible commandeering. Id. at 927. 

B. Community Injury 

102. The Executive Order fosters an atmosphere of fear and distrust between undocumented 

immigrants and local government officials in San Francisco. Its sweeping terms, combined with recent 

ICE activity in San Francisco, and compounded by the Trump administration’s statements about 

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immigration enforcement, have generated a maelstrom of fear and confusion that San Francisco 

agencies have had to move quickly to contain. 

103. The Executive Order is designed to—and does—create public confusion about whether 

San Francisco is and will remain a Sanctuary City, and what that means. 

104. San Francisco has been forced to spend resources to counteract the effect of the 

Executive Order. Since the Executive Order issued, San Francisco officials and employees have 

responded to questions from San Francisco departments, non-profit partners, and members of the 

public about topics such as whether the Executive Order modifies ICE’s authority to enter public 

facilities, jails, and residences; whether individuals’ personal identifying information on applications 

for benefit programs remains protected; and whether the Executive Order changes the way 

San Francisco law enforcement officers interact with ICE. San Francisco departments have held 

numerous meetings discussing the impact of the Executive Order and have developed new educational 

materials about San Francisco Chapters 12H and 12I. 

105. Given the Executive Order’s broad language, even San Francisco’s extensive and 

ongoing efforts to offer clear answers leave the public far from reassured. 

106. By heightening undocumented immigrants’ concerns that any interaction with 

San Francisco officials will lead to their information being turned over to ICE, the Executive Order 

discourages undocumented immigrants from reporting crimes, seeking public health services, and 

otherwise engaging with San Francisco programs and services. This threat harms public safety, public 

health, and San Francisco’s ability to act in what San Francisco has determined to be the best interest 

of its residents, consistent with federal and state law. 

107. The Executive Order undermines San Francisco’s ability to provide critical services not 

just to undocumented immigrants, but to all residents. When witnesses and crime victims will not talk 

to the police, law enforcement suffers and the entire community is less safe. When children are not 

vaccinated or the sick are not treated for communicable diseases, illness spreads throughout the 

community. 

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108. As a result, the Executive Order causes the very harms San Francisco’s Sanctuary City 

laws were designed to prevent. The Executive Order destroys rather than “foster[s] respect and trust 

between law enforcement and residents,” wastes rather than “protect[s] limited local resources,” and 

discourages rather than “encourage[s] cooperation between residents and City officials, including 

especially law enforcement and public health officers and employees.” S.F. Admin. Code § 12I.1. 

C. Budgetary Injury 

1. San Francisco Relies On Federal Funding For Essential Public Services. 

109. San Francisco is home to about 865,000 residents and has a total daytime population of 

about 1,250,000. People who live in, work in or visit San Francisco rely on—in addition to other 

public services—law enforcement provided by the San Francisco Police Department; public 

infrastructure projects such as roads, bridges and public transit; and the availability of high quality 

emergency care from San Francisco General Hospital. Residents also rely on public health programs 

such as Medi-Cal and public assistance programs like CalWORKS. While San Francisco has 

benefitted from a recent economic boom, over 12% of San Franciscans live in poverty, and depend on 

public assistance to make ends meet and put food on the table. 

110. San Francisco contributes disproportionately to national economic growth and job 

creation. Between 2010 and 2015, San Francisco ranked second among all U.S. counties in percentage 

change in employment, generating over 125,000 new jobs, a growth rate of 28%. A significant portion 

of this growth has been in the technology sector, a source of high wage jobs with important multiplier 

effects and potential for future growth. 

111. The State of California, including San Francisco, pays more to the Federal government 

in taxes than it receives in federal spending. In 2014, California residents and businesses paid a total of 

$369.2 billion in federal business and personal income, estate, gift, and excise taxes to the Internal 

Revenue Services and were the beneficiaries of $355.8 billion in federal expenditures. California 

ranked 38th among states in the ratio of federal spending to collections. 

112. In turn, San Francisco relies on federal funding to provide essential services and build 

and maintain public infrastructure projects. 

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113. San Francisco budgets by a fiscal year that runs from July 1 to June 30. The current 

fiscal year began July 1, 2016, and will end June 30, 2017 (“FY16-17”). The next fiscal year will run 

from July 1, 2017 to June 30, 2018 (“FY17-18”). 

114. San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in 

federal funds. This is approximately 13% of the total annual operating budget. 

115. On top of the federal funds allocated in the annual operating budget, San Francisco 

expects to receive an additional $800 million in federal multi-year grants, largely for public 

infrastructure projects. 

116. The programs, projects, and services described below are just a few examples of how 

San Francisco uses federal funds. 

a. Human Services Agency 

117. San Francisco’s Human Services Agency (“HSA”) provides critical services to 

San Francisco’s most vulnerable residents. It works with over 200,000 residents each year to provide 

needed nutrition assistance, income support, and child welfare services, among other support services. 

Approximately one in four San Franciscans is a client of HSA. HSA also manages numerous programs 

that serve young children and their families, older adults, and individuals with disabilities. HSA relies 

on federal funding to provide these services. 

118. For example, the In-Home Supportive Services (“IHSS”) program assists about 23,000 

low-income elderly, disabled, or blind San Franciscans to live safely in their own homes and 

communities. For some recipients, the IHSS program reduces acute health care and institutional longterm care costs that would otherwise be incurred by the state and Federal governments through MediCal. About 19,000 individuals work as independent providers for IHSS recipients. For FY16-17, the 

County’s IHSS program is budgeted to receive approximately $64 million in federal funds, accounting 

for nearly 40% of the program’s budget. Virtually all of these funds are provided as reimbursements. 

This amount does not include the approximately $200 million of federal funds that the State of 

California pays directly to independent IHSS providers. 

119. HSA also provides financial assistance and services to San Francisco’s neediest 

residents, including children and families living in poverty. For example, through California Work 

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Opportunity and Responsibility to Kids (CalWORKS), HSA provides financial assistance, family 

stabilization, case management, vocational counseling, job readiness assistance, behavioral health 

treatment, transportation, and other services designed to help parents of low-income families meet 

welfare-to-work requirements, secure and retain employment, and become self-sufficient. 

San Francisco’s CalWORKS program is budgeted to receive approximately $58 million in federal 

funding in FY16-17, accounting for over 50% of the County’s CalWORKS and Welfare-to-Work 

FY16-17 budget. Virtually all of these funds are provided as reimbursements. 

120. HSA offers numerous other social services, including child welfare programs and 

services, early childhood care and education services, adult protective services and a County Veteran’s 

Service Office that helps veterans and their families receive benefits to which they are entitled. 

121. In FY16-17, HSA expects to receive a total of approximately $286 million in federal 

funding. This represents approximately 33% of its FY16-17 budget. 

122. HSA directly employs nearly 2,000 employees. It also funds hundreds of additional 

jobs through contracts to service providers. Loss of federal funds would threaten many of these jobs, 

as well as the underlying services, that depend on HSA funds. 

b. Department of Public Health 

123. The Zuckerberg San Francisco General Hospital (“ZSFGH”) is a licensed general acute 

care hospital owned and operated by San Francisco. ZSFGH has 284 beds and provides a full 

complement of inpatient, outpatient, emergency, skilled nursing, diagnostic, mental health, and 

rehabilitation services for adults and children. ZSFGH is the largest safety net provider in 

San Francisco and is the designated trauma center for the 1.5 million residents of San Francisco and 

northern San Mateo County. In FY16-17, ZSFGH expects to receive approximately $450 million in 

federal funding for Medi-Cal and Medicare patient services. This accounts for over half of the ZSFGH 

FY16-17 budget of nearly $840 million. Virtually all of these funds are provided as reimbursements. 

124. Laguna Honda Hospital provides a full range of skilled nursing services to adult 

residents of San Francisco who are disabled or chronically ill, including specialized care for those with 

wounds, head trauma, stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia. In FY16-

17, Laguna Honda Hospital expects to receive approximately $160 million in federal funding for 

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Medi-Cal and Medicare patient services, accounting for nearly 60% of its budget. Virtually all of these 

funds are provided as reimbursements. 

125. The San Francisco Department of Public Health (“DPH”) also provides direct services 

through its primary care clinics, HIV/AIDS health services, mental health and substance abuse 

treatment, housing and homelessness assistance, maternal and child healthcare, and jail health 

services. 

126. Additionally, the DPH Population Health Division addresses public health concerns, 

including consumer safety, health promotion, and disease prevention. DPH also monitors threats to 

public health. 

127. Overall, in FY16-17, DPH expects to receive approximately $800 million in federal 

funding. This represents almost 40% of the Department’s FY16-17 budget. 

128. DPH has approximately 6,800 full-time equivalent employees, and it funds hundreds of 

additional jobs through contracts to service providers. Loss of federal funds would threaten many of 

the thousands of jobs that depend on DPH funds. 

c. Department of Emergency Management 

129. The Department of Emergency Management (“DEM”) leads San Francisco in planning, 

preparedness, communication, response, and recovery for daily emergencies, large scale citywide 

events, and major disasters. DEM is the vital link in emergency communication between the public 

and first responders. 

130. One of the programs DEM administers is the Bay Area Urban Areas Security Initiative 

(“UASI”), which sustains and improves regional capacity to prevent, mitigate, respond to, and recover 

from terrorist attacks and catastrophic disasters. UASI funds training exercises and regional 

emergency management and disaster response. This program is funded entirely by federal funds. 

131. In FY16-17, DEM anticipates receiving about $25 million in federal funding, mostly 

supporting the UASI program. This represents nearly 30% of the Department’s FY16-17 budget. 

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d. San Francisco Municipal Transportation Agency’s Vehicle 

Replacement Program 

132. San Francisco Municipal Transportation Authority (“SFMTA”) operates over 1,000 

vehicles across 75 transit lines, carrying on average 700,000 passengers each workday. Replacing and 

rehabilitating vehicles as they near the end of their useful life helps avoid costly repairs and service 

interruptions. Growing the vehicle fleet also alleviates overcrowding and enables the transit system to 

carry more passengers. 

133. Nearly 80% of SFMTA’s vehicle replacement and rehabilitation funding comes from 

the Federal government. Based on the latest Metropolitan Transportation Commission’s 

Transportation Improvement Program, which is a comprehensive spending plan for the Bay Area 

region, SFMTA expects to receive over $500 million for this purpose from FY 2016-17 through FY 

2019-20. These funds are subject to “Buy American” provisions. For example, San Francisco’s most 

recently purchased light-rail vehicles are manufactured in Sacramento, California and New Flyer 

trolley buses are manufactured in Minnesota. The funds are expected to replace the system’s 

approximately 1,000 aging vehicles over the four-year period. 

D. Federal Funding Streams 

134. San Francisco receives federal funds in the form of grants, as well as though payments 

for entitlement programs. These entitlement programs include Medicaid and Medicare, Temporary 

Assistance for Needy Families, Supplemental Nutrition Assistance Program, Foster Care, and various 

child welfare programs. Undocumented immigrants are not eligible to receive benefits from most 

entitlement programs. Approximately 80% of the federal funds budgeted for FY16-17 are for 

entitlement programs. 

135. San Francisco receives federal funds directly from the Federal government, as well as 

indirectly through the State of California and other pass-through entities. For FY16-17, 

San Francisco’s budget includes over $1.1 billion in pass-through funds, the vast majority of which is 

passed through the State of California. President Trump has identified California as a possible 

sanctuary jurisdiction. Because California does not prohibit voluntary communications about 

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immigration status, it should be deemed to comply with Section 1373. If Defendants nonetheless cut 

off funds to California, this could result in the loss of pass-through funds to San Francisco. 

136. San Francisco receives most federal funds—for both grants and entitlement programs—

as reimbursements. San Francisco is currently providing services and benefits that the Federal 

government has agreed to reimburse. San Francisco is also building major transit expansions and other 

public infrastructure projects, as well as running programs across a variety of San Francisco agencies, 

based on the Federal governments’ commitment to pay for these projects and programs. The Executive 

Order calls into question whether the Federal government will in fact reimburse San Francisco for 

these funds. 

137. Congress has established numerous conditions governing eligibility for federal funds. 

For instance, to receive Medicaid funds, a state must create a state plan that includes assurances to the 

Federal government that the state will provide specified types of care and that the state regulates health 

insurance providers to ensure access to medical assistance, among many other requirements. 42 U.S.C. 

§ 1396(a). 

138. In another example, the United States Department of Housing and Urban Development 

Community Development Block Grants fund many projects to combat unlawful evictions, maintain 

stable housing occupancy and supply, and incentivize affordable unit construction. These grants 

require the grantee to prepare a statement of community development objectives and projected use of 

funds, provide a citizen participation plan, and certify other enumerated criteria. 42 U.S.C. § 5304. 

139. No federal funds received by San Francisco have statutory conditions specifically 

requiring compliance with Section 1373. 

C. Coercive Effect Of The Executive Order 

140. The Executive Order threatens not to pay San Francisco over $2 billion in federal funds 

that is money already spent by San Francisco—money San Francisco is spending today and money 

San Francisco has reasonably relied on receiving. As set forth in this Complaint, the Executive Order 

is unconstitutional in numerous respects. Nonetheless, San Francisco currently faces the prospect of 

sweeping cuts in necessary federal funding. 

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141. It would be catastrophic for San Francisco to lose all federal funds. It would not be 

possible for San Francisco to backfill the loss of $1.2 billion with local revenue sources. 

142. San Francisco’s reserves are insufficient to cover the loss of all federal funds. 

San Francisco currently has contingency reserves of approximately $350 million, in a Rainy Day Fund 

and a Stabilization Fund, which were created and funded over the last decade for the purpose of 

managing local tax revenue volatility created by economic conditions. These reserve levels, totaling 

less than 8% of general fund revenues, remain below levels recommended by the Government Finance 

Officers Association for local governments and the 10% target established by San Francisco law. 

There are restrictions on the use of these reserves, and even if entirely depleted, their levels would be 

inadequate to cover a shortfall in federal funds for even a single year. To fully absorb the loss of all 

federal funds, San Francisco would also have to suspend capital projects—causing significant job 

loss—and make drastic service cuts in order to maintain a balanced budget, as it is legally required to 

do. 

143. Even a loss of 10% of annual federal funds would be calamitous for San Francisco. A 

cut of $120 million would lead to severe public health and public safety impacts. San Francisco 

currently has approximately 1,971 police officers, a level mandated by the Charter, but a $120 million 

cut would likely require San Francisco to reduce that number significantly, with similar reductions in 

the number of firefighters. Capital programs would be postponed, resulting in lost jobs, and social 

service programs would be reduced or eliminated. General Fund Departments have identified specific 

programs and services that they will need to cut if they must reduce their General Fund Support for 

FY17-18 to help the Mayor’s Office balance the budget. These include, for example, services for 

women that are domestic violence survivors, programming for low-income children and families, and 

housing programs to support low-income residents. 

144. The Executive Order’s threat to cut federal funds is manifestly coercive. This is why at 

least one jurisdiction has already changed its policy about immigration detainers in response to the 

Executive Order. The day after the Executive Order was issued, Miami-Dade County Mayor Carlos 

Giménez instructed the county’s interim corrections director to “fully cooperate” with the Federal 

government and comply with all immigration detainer requests, eliminating a previous requirement 

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that the Federal government reimburse detainer costs. “It’s really not worth the risk of losing millions 

of dollars to the residents of Miami-Dade County in discretionary money from the feds,” said Mayor 

Giménez. Ray Sanchez, Florida’s Largest County to Comply with Trump’s Sanctuary Crackdown, 

CNN Politics (Jan. 27, 2017, 6:34 PM ET), http://www.cnn.com/2017/01/27/politics/miami-dademayor-sanctuary-crackdown/. There is little doubt that is exactly what the President intends this 

coercive effect with his promise to defund Sanctuary Cities. 

D. Budget Impact of the Executive Order 

145. For FY16-17, San Francisco’s annual operating budget is approximately $9.6 billion. 

Of this, approximately $1.2 billion is money provided by the Federal government for entitlement 

programs, grants, and contracts, and other items. For the vast majority of the federal funds received by 

San Francisco, there is no nexus between the purpose of the funds and immigration enforcement. Only 

a small percentage of all federal funds received by San Francisco relate to either immigration or law 

enforcement. 

146. The concern about losing federal funds is so acute that the Board of Supervisors has 

established the Budget and Finance Federal Select Committee, a new committee that will consider 

issues related to the possible loss of federal funds as a result of the Executive Order and other federal 

action. 

147. San Francisco has already begun the seven-month process of adopting the annual 

budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the 

Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco 

departments with detailed guidance on the preparation of departments’ budget requests. Most 

San Francisco departments held public hearings on their budget proposals in January and February and 

submitted their budget requests for the coming fiscal year to the Controller by February 21. 

San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by 

March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board 

of Supervisors to approve a balanced budget by August 1. 

148. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by 

May 15, and input these decisions into San Francisco’s budget software by May 24. During the last 

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week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s 

proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies 

the proposed budget. 

149. The budget for the fiscal year beginning July 1, 2017 will be approximately $10 billion, 

approximately $5 billion of which is in San Francisco’s General Fund. The remainder of the budget is 

comprised of self-supporting activities at San Francisco’s enterprise departments, which focus on cityrelated business operations and include the Port, the Municipal Transportation Agency, the Airport, 

the Public Utilities Commission, and others. The use of funds in these operations is legally restricted 

and cannot be redirected to backfill a shortfall in the General. Fund. Money in San Francisco’s 

General Fund is used to support public services such as public health, human services, police and fire 

services, and public works. Approximately $2 billion of General Fund money is legally dedicated for 

specific purposes, leaving approximately $3 billion in discretionary funds. 

150. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is 

whether to create a budget reserve to account for the possible loss of federal and state funds in the 

coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could 

place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount 

of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued 

receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget 

process. 

151. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at 

that time, as there will be less time to absorb the loss of funds. Depending on the nature of the cuts, 

they could lead to immediate service cuts, layoffs, or cancellation of contracts and associated 

penalties. 

152. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to 

propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s 

assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut. 

Money used to fund the reserve is money that will not be available for General Fund programs and 

services. 

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153. A May 15, 2017, decision to set the reserve at a specified amount will have a real world 

impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the 

reserve will sit in the reserve instead of being available for General Fund services and programs. Once 

funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year 

unless they are released in response to reliably detailed information about the timing and size of 

federal or state funding cuts. 

154. The Mayor must make a trade-off between putting money into a reserve and using it for 

other San Francisco priorities, some of which are currently unfunded. For instance, the Department of 

Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years 

to make an impact in reducing homelessness in San Francisco. This money would fund a family 

shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A 

reserve would set money aside instead of using it for purposes like this. 

155. Since the Executive Order issued, San Francisco has received inquiries from credit 

rating agencies about the impact of the Executive Order on San Francisco’s finances. If credit rating 

agencies downgrade their assessment of San Francisco, it will increase San Francisco’s borrowing 

costs. The Executive Order imposes a “substantial contingent liability” to the extent that it 

“immediately and directly affects the borrowing power, financial strength, and fiscal planning” of 

San Francisco. See Clinton v. City of N.Y., 524 U.S. 417, 430-31 (1998). 

CAUSES OF ACTION 

COUNT ONE 

DECLARATORY RELIEF – SAN FRANCISCO LAW COMPLIES WITH 8 U.S.C. § 1373 

156. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as 

if fully set forth herein. 

157. San Francisco contends that it complies with Section 1373. San Francisco 

Administrative Code Chapters 12H and 12I do not prohibit, or in any way restrict, any government 

entity or official from sending to, or receiving from, immigration officials information regarding the 

citizenship or immigration status, lawful or unlawful, of any individual. 

158. Defendants contend that San Francisco does not comply with Section 1373. 

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159. An actual controversy presently exists between San Francisco and Defendants about 

whether San Francisco complies with Section 1373. 

160. A judicial determination resolving this controversy is necessary and appropriate at this 

time. 

COUNT TWO 

DECLARATORY RELIEF – SAN FRANCISCO POLICIES 

COMPLY WITH 8 U.S.C. § 1373 

161. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as 

if fully set forth herein. 

162. San Francisco contends that its policies comply with Section 1373. San Francisco does 

not prohibit, or in any way restrict, any government entity or official from sending to, or receiving 

from, immigration officials information regarding the citizenship or immigration status, lawful or 

unlawful, of any individual. 

163. Defendants contend that San Francisco does not comply with Section 1373. 

164. An actual controversy presently exists between San Francisco and Defendants about 

whether San Francisco complies with Section 1373. 

165. A judicial determination resolving this controversy is necessary and appropriate at this 

time. 

COUNT THREE 

TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL 

166. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as 

if fully set forth herein. 

167. On its face, Section 1373 commandeers state and local governments in violation of the 

Tenth Amendment to the Constitution by, inter alia, regulating the “States in their sovereign 

capacity,” Reno, 528 U.S. at 151, limiting state authority to regulate internal affairs and determine the 

duties and responsibilities of state employees, Gregory, 501 U.S. at 460, and ultimately forcing States 

to allow their employees to use state time and state resources to assist in the enforcement of federal 

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statutes regulating private individuals, Reno, 528 U.S. at 151, and to provide information that belongs 

to the State and is available to them only in their official capacity, Printz, 521 U.S. at 932-33 & n.17. 

168. As applied to invalidate state and local Sanctuary City laws, like San Francisco 

Administrative Code Chapters 12H and 12I, which were enacted to further legitimate local interests 

grounded in the basic police powers of local government and related to public health and safety, 

Section 1373(a) commandeers state and local governments and violates the Tenth Amendment to the 

United States Constitution. 

COUNT FOUR 

TENTH AMENDMENT, SEPARATION OF POWERS, AND SPENDING CLAUSE – 

EXECUTIVE ORDER SECTION 9(A)’S FUNDING RESTRICTIONS ARE 

UNCONSTITUTIONAL 

169. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as 

if fully set forth herein. 

170. Executive Order Section 2(c) states: “It is the policy of the executive branch to . . . 

Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, 

except as mandated by law.” Executive Order at 8799. 

171. Executive Order Section 9 states: “It is the policy of the executive branch to ensure, to 

the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 

U.S.C. 1373.” Id. at 8801. 

172. Executive Order Section 9(a) contains a Funding Restriction stating: “In furtherance of 

this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with 

law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary 

jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law 

enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to 

designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary 

jurisdiction.” Id.

173. The Funding Restriction violates the Tenth Amendment, the Spending Clause, and 

Article I, sec. 1 of the United States Constitution by: 

a. Exercising Spending Power that the Constitution grants to Congress; 

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b. Imposing new funding conditions on existing federal funds; 

c. Imposing funding conditions not germane to the purpose of the funds; 

d. Imposing funding conditions so severe as to coerce compliance; and 

e. Imposing funding conditions that require jurisdictions to act unconstitutionally. 

COUNT FIVE 

TENTH AMENDMENT – EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT 

DIRECTIVE IS UNCONSTITUTIONAL 

174. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as 

if fully set forth herein. 

175. Executive Order Section 9(a) contains an Enforcement Directive stating: “The Attorney 

General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or 

which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal 

law.” Executive Order at 8801. 

176. The Federal government has taken the position that a state or local jurisdiction that fails 

to affirmatively assist federal immigration officials—by, for example, refusing to comply with a 

detainer request issued under Section 287.7 of Title 8 of the Code of Federal Regulations—hinders the 

enforcement of federal law and violates Section 1373. 

177. Accordingly, the Enforcement Directive commandeers state and local governments, 

violating Tenth Amendment to the United States Constitution by, inter alia, compelling them to 

enforce a federal program by imprisoning individuals subject to removal at the request of the Federal 

government when those individuals would otherwise be released from custody. 

PRAYER FOR RELIEF 

Wherefore, San Francisco prays that the Court grant the following relief: 

San Francisco Complies With Section 1373 (Count One and Two) 

1. Declare that San Francisco laws comply with Section 1373; 

2. Declare that San Francisco policies and practices comply with Section 1373; 

// 

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3. Preliminarily and permanently enjoin Defendants from designating San Francisco as a 

jurisdiction that fails to comply with Section 1373; 

Section 1373 Is Unconstitutional (Count Three) 

4. Declare that 8 U.S.C. Section 1373(a) is unconstitutional and invalid on its face; 

5. Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for 

receiving federal funds; 

6. Declare that Section 1373(a) is invalid as applied to state and local Sanctuary City laws, 

like San Francisco Administrative Code Chapters 12H and 12I, which were enacted for 

legitimate local purposes related to public health and safety; 

7. Preliminarily and permanently enjoin Defendants from enforcing Section 1373(a) 

against jurisdictions that enact Sanctuary City laws for legitimate local purposes; 

Executive Order Section 9(a)’s Funding Restriction Is Unconstitutional (Count Four) 

8. Declare the Funding Restriction in Executive Order invalid; 

9. Preliminarily and permanently enjoin Defendants from enforcing the Funding 

Restriction in the Executive Order; 

Executive Order Section 9(a)’s Enforcement Directive Is Unconstitutional (Count Five) 

10. Declare the Enforcement Directive in Executive Order invalid; 

11. Preliminarily and permanently enjoin unconstitutional applications of the Enforcement 

Directive in Executive Order Section 9(a); 

Other Relief 

12. Award San Francisco reasonable costs and attorney’s fees; and 

// 

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// 

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13. Grant any other further relief that the Court deems fit and proper. 

Dated: February 27, 2017 

DENNIS J. HERRERA 

City Attorney 

 RONALD FLYNN 

 JESSE C. SMITH 

 YVONNE R. MERÉ 

 MOLLIE M. LEE 

 SARA J. EISENBERG 

Deputy City Attorneys 

By: /s/ Dennis J. Herrera 

DENNIS J. HERRERA 

 City Attorney 

By: /s/ Mollie M. Lee 

MOLLIE M. LEE 

 Deputy City Attorney 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO 

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EXHIBIT 1 

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Print

San Francisco Administrative Code

CHAPTER 12H:

IMMIGRATION STATUS

Sec. 12H.1. City and County of Refuge.

Sec. 12H.2. Use of City Funds Prohibited.

Sec. 12H.3. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees.

Sec. 12H.4. Enforcement.

Sec. 12H.5. City Undertaking Limited to Promotion of General Welfare.

Sec. 12H.6. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.

 It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge. 

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.

 No department, agency, commission, officer, or employee of the City and County of San Francisco shall use 

any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate 

information regarding release status of individuals or any other such personal information as defined in Chapter 

12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, 

regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited 

to: 

 (a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, 

public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration 

law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted 

under Administrative Code Section 12I.3. 

 (b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of 

information conducted by foreign governments, except for cooperation related to an alleged violation of City 

and County, State, or Federal criminal laws. 

 (c) Requesting information about, or disseminating information, in one's official capacity, regarding the 

release status of any individual or any other such personal information as defined in Chapter 12I, except as 

permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the 

City and County of San Francisco upon immigration status, except as required by Federal or State statute or 

regulation, City and County public assistance criteria, or court decision. 

 (d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or 

opportunities provided by the City and County of San Francisco any question regarding immigration status 

other than those required by Federal or State statute, regulation, or court decision. Any such questions existing 

or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the 

adoption of this Chapter. 

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(Added by Ord. 375-89, App. 10/24/89; amended by Ord. 228-09, File No. 091032, App. 10-28-2009; Ord. 96-16 , File No. 160022, App. 

6/17/2016, Eff. 7/17/2016)

SEC. 12H.2-1. [REPEALED.]

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-28-2009; repealed by Ord. 

96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS 

CHAPTER; INFORMING CITY EMPLOYEES.

 The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments 

thereto that may be made, to every department, agency and commission of the City and County of San 

Francisco, to California's United States Senators, and to the California Congressional delegation, the 

Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United 

States Attorney General, and the Secretary of State and the President of the United States. Each appointing 

officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the 

prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this 

ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to 

appropriate disciplinary action. Each City and County employee shall be given a written directive with 

instructions for implementing the provisions of this Chapter. 

(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)

SEC. 12H.4. ENFORCEMENT.

 The Human Rights Commission shall review the compliance of the City and County departments, agencies, 

commissions and employees with the mandates of this ordinance in particular instances in which there is 

question of noncompliance or when a complaint alleging noncompliance has been lodged. 

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF 

GENERAL WELFARE.

 In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to 

promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City 

is liable in money damages to any person who claims that such breach proximately caused injury. This section 

shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person. 

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

 If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance 

shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, 

the provisions of this ordinance, and each of them, are severable. 

(Added by Ord. 375-89, App. 10/24/89)

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EXHIBIT 2 

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Print

San Francisco Administrative Code

CHAPTER 12I:

CIVIL IMMIGRATION DETAINERS

Sec. 12I.1. Findings.

Sec. 12I.2. Definitions.

Sec. 12I.3. Restrictions on Law Enforcement Officials.

Sec. 12I.4. Purpose of this Chapter.

Sec. 12I.5. Semiannual Report.

Sec. 12I.6. Severability.

Sec. 12I.7. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.

 The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national 

backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection 

and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, 

respect, and open communication between City employees and City residents is essential to the City's core 

mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, 

including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to 

foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage 

cooperation between residents and City officials, including especially law enforcement and public health 

officers and employees, and to ensure community security, and due process for all.

 The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil 

immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority 

Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its 

enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action 

and that any request is not an authorization to detain persons at the expense of the federal government. The 

federal government should not shift the financial burden of federal civil immigration enforcement, including 

personnel time and costs relating to notification and detention, onto local law enforcement by requesting that 

local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers 

or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is 

not a wise and effective use of valuable City resources at a time when vital services are being cut.

 ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil 

immigration enforcement onto local law enforcement. S-Comm came into operation after the state sent 

fingerprints that state and local law enforcement agencies had transmitted to the California Department of 

Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would 

forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration 

and other databases. To give itself time to take a detainee into immigration custody, ICE would send an 

Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting 

that the local law enforcement official hold the individual for up to 48 hours after that individual would 

otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without 

evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation 

officers, immigration inspectors, and immigration adjudication officers.

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 Given that civil immigration detainers are issued by immigration officers without judicial oversight, and the 

regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance, 

there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by 

probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil 

immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE 

"Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the 

Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in 

custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that 

detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See 

alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-

12 (N.D. Ill. filed May 5, 2014).)

 On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of 

local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require 

state or local law enforcement officials to determine an individual's immigration status or to enforce federal 

immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to 

local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may 

determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, 

bulletin, the Attorney General warned that a federal court outside of California had held a county liable for 

damages where it voluntarily complied with an ICE request to detain an individual, and the individual was 

otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. 

Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 

counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to 

hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' 

responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil 

immigration detainers frequently raises due process concerns.

 According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the 

federal government for the costs associated with civil immigration detainers alone. The full cost of responding 

to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative 

costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is 

not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in 

civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

 The City seeks to protect public safety, which is founded on trust and cooperation of community residents and 

local law enforcement. However, civil immigration detainers and notifications regarding release undermine 

community trust of law enforcement by instilling fear in immigrant communities of coming forward to report 

crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled 

"Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at 

least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing 

themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the 

transfer of victims of crime, including domestic violence victims, to ICE. 

 The City has enacted numerous laws and policies to strengthen communities and to build trust between 

communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement 

undermines community policing strategies.

 In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share 

many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's 

fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of 

individuals from local jails to immigration custody.

 First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about 

an individual's release date prior to his or her release from local custody. As with civil immigration detainers, 

these notification requests are issued by immigration officers without judicial oversight, thus raising questions 

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about local law enforcement's liability for constitutional violations if any person is overdetained when 

immigration agents are unable to be present at the time of the person's release from local custody.

 Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law 

enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term 

that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth 

Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is 

supported by probable cause or has been reviewed by a neutral magistrate.

 The increase in information-sharing between local law enforcement and immigration officials raises serious 

concerns about privacy rights. Across the country, including in the California Central Valley, there has been an 

increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and 

other documents that contain personal information of all jail inmates.

 The City has an interest in ensuring that confidential information collected in the course of carrying out its 

municipal functions, including but not limited to public health programs and criminal investigations, is not used 

for unintended purposes that could hamper collection of information vital to those functions. To carry out public 

health programs, the City must be able to reliably collect confidential information from all residents. To solve 

crimes and protect the public, local law enforcement depends on the cooperation of all City residents. 

Information gathering and cooperation may be jeopardized if release of personal information results in a person 

being taken into immigration custody.

 In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco 

Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve 

his car, which police had located, he was detained for some time by police officers before being released, and an 

ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was 

later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE 

officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention 

facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law 

enforcement's relationship with immigration authorities, and has weakened the immigrant community's 

confidence in policing practices. Community cooperation with local law enforcement is critical to investigating 

and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law 

enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant 

populations, will be seriously compromised.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 

7/17/2016)

(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App.

3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.2. DEFINITIONS.

 "Administrative warrant" means a document issued by the federal agency charged with the enforcement of the 

Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.

 "Eligible for release from custody" means that the individual may be released from custody because one of the 

following conditions has occurred:

 (a) All criminal charges against the individual have been dropped or dismissed.

 (b) The individual has been acquitted of all criminal charges filed against him or her.

 (c) The individual has served all the time required for his or her sentence.

 (d) The individual has posted a bond, or has been released on his or her own recognizance.

 (e) The individual has been referred to pre-trial diversion services.

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 (f) The individual is otherwise eligible for release under state or local law.

 "Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration 

officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to 

maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal 

immigration officer prior to the release of that individual.

 "Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have 

been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the 

date of release.

 "Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a 

projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.

 "Law enforcement official" means any City Department or officer or employee of a City Department, 

authorized to enforce criminal statutes, regulations, or local ordinances; operate jails or maintain custody of 

individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile 

detention facilities.

 "Notification request" means a non-mandatory request issued by an authorized federal immigration officer to 

a local law enforcement official asking for notification to the authorized immigration officer of an individual's 

release from local custody prior to the release of an individual from local custody. Notification requests may 

also include informal requests for release information by the Federal agency charged with enforcement of the 

Federal immigration law.

 "Personal information" means any confidential, identifying information about an individual, including, but not 

limited to, home or work contact information, and family or emergency contact information.

 "Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as 

violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; 

exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person 

with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle 

at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).

 "Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in 

Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any 

crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or 

attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 

12022.4 and 12022.5.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 

7/17/2016)

(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File 

No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.

 (a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the 

basis of a civil immigration detainer after that individual becomes eligible for release from custody.

 (b) Law enforcement officials may continue to detain an individual in response to a civil immigration 

detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is 

consistent with state and federal law, and the individual meets both of the following criteria:

 (1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date 

of the civil immigration detainer; and

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 (2) A magistrate has determined that there is probable cause to believe the individual is guilty of a Violent 

Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

 In determining whether to continue to detain an individual based solely on a civil immigration detainer as 

permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's 

rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other 

mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the 

individual has been a victim of any crime, the individual's contribution to the community, and the individual's 

participation in social service or rehabilitation programs.

 This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the 

Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive 

immigration reform that diminishes the need for this subsection (b), whichever comes first.

 (c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal 

immigration officer's notification request.

 (d) Law Enforcement officials may respond to a federal immigration officer's notification request if the 

individual meets both of the following criteria:

 (1) The individual either:

 (A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the 

notification request; or 

 (B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the 

notification request; or

 (C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or 

Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three 

separate incidents in the five years immediately prior to the date of the notification request; and

 (2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony 

identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)

(3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code 

Section 872.

 In determining whether to respond to a notification request as permitted by this subsection (d), law 

enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the 

individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, 

but is not limited to, the individual's ties to the community, whether the individual has been a victim of any 

crime, the individual's contribution to the community, and the individual's participation in social service or 

rehabilitation programs.

 (e) Law enforcement officials shall not arrest or detain an individual, or provide any individual's personal 

information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, 

or other civil immigration document based solely on alleged violations of the civil provisions of immigration 

laws.

 (f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs 

incurred in continuing to detain an individual, after that individual becomes eligible for release, in response 

each civil immigration detainer.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 

7/17/2016)

(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App.

3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.4. PURPOSE OF THIS CHAPTER.

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 The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary 

notification of release of individuals, transmission of personal information, and civil immigration documents 

based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be 

construed to apply to matters other than those relating to federal civil immigration detainers, notification of 

release of individuals, transmission of personal information, or civil immigration documents, based solely on 

alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement 

agencies may continue to collaborate with federal authorities to protect public safety. This collaboration 

includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy 

or applicable city or state law.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 

7/17/2016)

(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App.

3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.5. SEMIANNUAL REPORT.

 By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of 

Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil 

immigration detainers during the first six months following the effective date of this Chapter, and detailing the 

rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation 

Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 

1st of each year, addressing the following issues for the time period covered by the report:

 (a) a description of all communications received from the Federal agency charged with enforcement of the 

Federal immigration law, including but not limited to the number of civil immigration detainers, notification 

requests, or other types of communications.

 (b) a description of any communications the Department made to the Federal agency charged with 

enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires 

as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 

12I.3(d) and 12I.3(e).

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 

7/17/2016)

(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File 

No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.6. SEVERABILITY.

 If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any 

reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision 

shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby 

declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, 

phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this 

Chapter 12I would be subsequently declared invalid or unconstitutional.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App.

3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003) 

CODIFICATION NOTE

1. So in Ord. 204-13.

SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.

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 In enacting and implementing this Chapter 12I the City is assuming an undertaking only to promote the 

general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of 

which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)

(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, 

File No. 030422, App. 7/3/2003) 

SEC. 12I.8. 

(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 

171-03, File No. 030422, App. 7/3/2003) 

SEC. 12I.10. 

(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, 

App. 7/3/2003) 

SEC. 12I.11. 

(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, 

App. 7/3/2003)

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EXHIBIT 3 

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Presidential Documents

Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 8799 

Executive Order 13768 of January 25, 2017 

Enhancing Public Safety in the Interior of the United States 

By the authority vested in me as President by the Constitution and the 

laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public 

safety of the American people in communities across the United States 

as well as to ensure that our Nation’s immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, 

as follows: 

Section 1. Purpose. Interior enforcement of our Nation’s immigration laws 

is critically important to the national security and public safety of the 

United States. Many aliens who illegally enter the United States and those 

who overstay or otherwise violate the terms of their visas present a significant 

threat to national security and public safety. This is particularly so for 

aliens who engage in criminal conduct in the United States. 

Sanctuary jurisdictions across the United States willfully violate Federal 

law in an attempt to shield aliens from removal from the United States. 

These jurisdictions have caused immeasurable harm to the American people 

and to the very fabric of our Republic. 

Tens of thousands of removable aliens have been released into communities 

across the country, solely because their home countries refuse to accept 

their repatriation. Many of these aliens are criminals who have served time 

in our Federal, State, and local jails. The presence of such individuals 

in the United States, and the practices of foreign nations that refuse the 

repatriation of their nationals, are contrary to the national interest. 

Although Federal immigration law provides a framework for Federal-State 

partnerships in enforcing our immigration laws to ensure the removal of 

aliens who have no right to be in the United States, the Federal Government 

has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes 

or categories of removable aliens from potential enforcement. The purpose 

of this order is to direct executive departments and agencies (agencies) 

to employ all lawful means to enforce the immigration laws of the United 

States. 

Sec. 2. Policy. It is the policy of the executive branch to: 

(a) Ensure the faithful execution of the immigration laws of the United 

States, including the INA, against all removable aliens, consistent with Article 

II, Section 3 of the United States Constitution and section 3331 of title 

5, United States Code; 

(b) Make use of all available systems and resources to ensure the efficient 

and faithful execution of the immigration laws of the United States; 

(c) Ensure that jurisdictions that fail to comply with applicable Federal 

law do not receive Federal funds, except as mandated by law; 

(d) Ensure that aliens ordered removed from the United States are promptly 

removed; and 

(e) Support victims, and the families of victims, of crimes committed 

by removable aliens. 

Sec. 3. Definitions. The terms of this order, where applicable, shall have 

the meaning provided by section 1101 of title 8, United States Code. 

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8800 Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 

Sec. 4. Enforcement of the Immigration Laws in the Interior of the United 

States. In furtherance of the policy described in section 2 of this order, 

I hereby direct agencies to employ all lawful means to ensure the faithful 

execution of the immigration laws of the United States against all removable 

aliens. 

Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws 

of the United States, the Secretary of Homeland Security (Secretary) shall 

prioritize for removal those aliens described by the Congress in sections 

212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 

U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as 

well as removable aliens who: 

(a) Have been convicted of any criminal offense; 

(b) Have been charged with any criminal offense, where such charge 

has not been resolved; 

(c) Have committed acts that constitute a chargeable criminal offense; 

(d) Have engaged in fraud or willful misrepresentation in connection 

with any official matter or application before a governmental agency; 

(e) Have abused any program related to receipt of public benefits; 

(f) Are subject to a final order of removal, but who have not complied 

with their legal obligation to depart the United States; or 

(g) In the judgment of an immigration officer, otherwise pose a risk to 

public safety or national security. 

Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later 

than one year after the date of this order, the Secretary shall issue guidance 

and promulgate regulations, where required by law, to ensure the assessment 

and collection of all fines and penalties that the Secretary is authorized 

under the law to assess and collect from aliens unlawfully present in the 

United States and from those who facilitate their presence in the United 

States. 

Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through 

the Director of U.S. Immigration and Customs Enforcement, shall, to the 

extent permitted by law and subject to the availability of appropriations, 

take all appropriate action to hire 10,000 additional immigration officers, 

who shall complete relevant training and be authorized to perform the 

law enforcement functions described in section 287 of the INA (8 U.S.C. 

1357). 

Sec. 8. Federal-State Agreements. It is the policy of the executive branch 

to empower State and local law enforcement agencies across the country 

to perform the functions of an immigration officer in the interior of the 

United States to the maximum extent permitted by law. 

(a) In furtherance of this policy, the Secretary shall immediately take 

appropriate action to engage with the Governors of the States, as well as 

local officials, for the purpose of preparing to enter into agreements under 

section 287(g) of the INA (8 U.S.C. 1357(g)). 

(b) To the extent permitted by law and with the consent of State or 

local officials, as appropriate, the Secretary shall take appropriate action, 

through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines 

are qualified and appropriate, to perform the functions of immigration officers 

in relation to the investigation, apprehension, or detention of aliens in 

the United States under the direction and the supervision of the Secretary. 

Such authorization shall be in addition to, rather than in place of, Federal 

performance of these duties. 

(c) To the extent permitted by law, the Secretary may structure each 

agreement under section 287(g) of the INA in a manner that provides the 

most effective model for enforcing Federal immigration laws for that jurisdiction. 

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Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 8801 

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch 

to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. 

(a) In furtherance of this policy, the Attorney General and the Secretary, 

in their discretion and to the extent consistent with law, shall ensure that 

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary 

jurisdictions) are not eligible to receive Federal grants, except as deemed 

necessary for law enforcement purposes by the Attorney General or the 

Secretary. The Secretary has the authority to designate, in his discretion 

and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against 

any entity that violates 8 U.S.C. 1373, or which has in effect a statute, 

policy, or practice that prevents or hinders the enforcement of Federal 

law. 

(b) To better inform the public regarding the public safety threats associated 

with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer 

Outcome Report or its equivalent and, on a weekly basis, make public 

a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect 

to such aliens. 

(c) The Director of the Office of Management and Budget is directed 

to obtain and provide relevant and responsive information on all Federal 

grant money that currently is received by any sanctuary jurisdiction. 

Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority 

Enforcement Program (PEP) described in the memorandum issued by the 

Secretary on November 20, 2014, and to reinstitute the immigration program 

known as ‘‘Secure Communities’’ referenced in that memorandum. 

(b) The Secretary shall review agency regulations, policies, and procedures 

for consistency with this order and, if required, publish for notice and 

comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify 

any inconsistent policies and procedures, as appropriate and consistent with 

the law. 

(c) To protect our communities and better facilitate the identification, 

detention, and removal of criminal aliens within constitutional and statutory 

parameters, the Secretary shall consolidate and revise any applicable forms 

to more effectively communicate with recipient law enforcement agencies. 

Sec. 11. Department of Justice Prosecutions of Immigration Violators. The 

Attorney General and the Secretary shall work together to develop and 

implement a program that ensures that adequate resources are devoted to 

the prosecution of criminal immigration offenses in the United States, and 

to develop cooperative strategies to reduce violent crime and the reach 

of transnational criminal organizations into the United States. 

Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and 

the Secretary of State shall cooperate to effectively implement the sanctions 

provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. 

The Secretary of State shall, to the maximum extent permitted by law, 

ensure that diplomatic efforts and negotiations with foreign states include 

as a condition precedent the acceptance by those foreign states of their 

nationals who are subject to removal from the United States. 

Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The 

Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. 

Immigration and Customs Enforcement an office to provide proactive, timely, 

adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide 

quarterly reports studying the effects of the victimization by criminal aliens 

present in the United States. 

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8802 Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable 

law, ensure that their privacy policies exclude persons who are not United 

States citizens or lawful permanent residents from the protections of the 

Privacy Act regarding personally identifiable information. 

Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary 

and the Attorney General shall each submit to the President a report on 

the progress of the directives contained in this order within 90 days of 

the date of this order and again within 180 days of the date of this order. 

Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney 

General are hereby directed to collect relevant data and provide quarterly 

reports on the following: 

(a) the immigration status of all aliens incarcerated under the supervision 

of the Federal Bureau of Prisons; 

(b) the immigration status of all aliens incarcerated as Federal pretrial 

detainees under the supervision of the United States Marshals Service; and 

(c) the immigration status of all convicted aliens incarcerated in State 

prisons and local detention centers throughout the United States. 

Sec. 17. Personnel Actions. The Office of Personnel Management shall take 

appropriate and lawful action to facilitate hiring personnel to implement 

this order. 

Sec. 18. General Provisions. (a) Nothing in this order shall be construed 

to impair or otherwise affect: 

(i) the authority granted by law to an executive department or agency, 

or the head thereof; or 

(ii) the functions of the Director of the Office of Management and Budget 

relating to budgetary, administrative, or legislative proposals. 

(b) This order shall be implemented consistent with applicable law and 

subject to the availability of appropriations. 

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Federal Register / Vol. 82, No. 18 / Monday, January 30, 2017 / Presidential Documents 8803 

(c) This order is not intended to, and does not, create any right or benefit, 

substantive or procedural, enforceable at law or in equity by any party 

against the United States, its departments, agencies, or entities, its officers, 

employees, or agents, or any other person. 

THE WHITE HOUSE, 

January 25, 2017. 

[FR Doc. 2017–02102 

Filed 1–27–17; 11:15 am] 

Billing code 3295–F7–P 


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