The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-607
of :
: November 19, 1992
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE QUENTIN L. KOPP, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
May a city prohibit its officers and employees from cooperating in their official
capacities with Immigration and Naturalization Service investigation, detention, or arrest procedures
relating to alleged violations of the civil provisions of the federal immigration laws?
CONCLUSION
Due to the supremacy clause of the United States Constitution, a city may not prohibit
its officers and employees from cooperating in their official capacities with Immigration and
Naturalization Service investigation, detention, or arrest procedures relating to alleged violations
of the civil provisions of the federal immigration laws.
ANALYSIS
We are asked to determine whether it is permissible for a city to enact an ordinance
prohibiting cooperation by city officers and employees with the Immigration and Naturalization
Service ("INS") which might assist the federal agency in detecting persons whose presence in this
country violates the civil provisions of the Immigration and Nationality Act (8 U.S.C. § 1101, et
seq.; "Act").1 Specifically, the ordinance prohibits city officers and employees from using, in their
official capacities, any city resources to cooperate with INS investigation, detention, or arrest
procedures relating to alleged violations of the civil provisions of federal immigration laws or to
gather or disseminate information regarding the immigration status of individuals in the city. We
1
The civil provisions of the Act apply to persons who are illegally present in this country
and thus subject to deportation.
are advised that the stated purpose of the ordinance is to encourage persons who are illegally present
in this country to report criminal activities which they observe to local law enforcement officers.
It is posited that under the ordinance, city police officers may not notify the INS of
lawfully obtained information regarding the immigration status of any person arrested; INS agents
are not to be given access to the city's records to review such information.
When a peace officer lawfully comes across information in the course of investigating
a crime which reasonably leads to the belief that the person arrested is illegally present in this
country, neither the state nor federal Constitution prevents the officer from advising the INS of such
information. (Gates v. Superior Court (1987) 193 Cal.App.3d 205, 219.) We have previously
determined that although there is no general affirmative legal duty imposed on California judges and
peace officers to report to the INS knowledge that they might have of persons being unlawfully
present in the United States,2 public officials may report that knowledge if they choose to do so
unless it was learned in a manner made confidential by law. (67 Ops.Cal.Atty.Gen. 331 (1984).)3
We stated:
"The Immigration and Naturalization Act is the law of this land and it is an
`act of responsible citizenship' and the `duty' and the right of every citizen to assist
in prosecuting and securing punishment for its breach by giving whatever
information he or she may have in that regard to aid those who enforce it." (Id., at
p. 340.)
In Gates v. Superior Court, supra, 193 Cal.App.3d 205, 219, the Court of Appeal observed:
"Where otherwise warranted investigation by local officers leads to evidence
of a federal civil or criminal violation, the local authority has the right to exchange
information with federal authorities; to deny such an exchange is not reasonable and
rewards those federal violators fortunate enough to be arrested by local, rather than
federal, officials."
It is against this background that we analyze the constitutional validity of the city ordinance in
question.
The Act is a comprehensive legislative scheme intended to govern all aspects of the
admission of aliens to the United States. (National Center for Immigrants' Rights v. I.N.S. (9th Cir.
2
However, as pointed out in our prior opinion, Health and Safety Code section 11369 does
provide:
"When there is reason to believe that any person arrested for a violation of
[specified drug-related offenses] may not be a citizen of the United States, the
arresting agency shall notify the appropriate agency of the United States having
charge of deportation matters."
3
Such transfers of arrest information do not constitute enforcement of the civil provisions
of the Act. (Gates v. Superior Court, supra, 193 Cal.App.3d 205, 219.) Local agency arrests for
civil violations of the Act are deemed to intrude impermissibly on the federal preserve. (Id., at p.
218.) On the other hand, federal immigration laws do not preclude local enforcement of the criminal
provisions of the Act. (Gonzales v. City of Peoria (9th Cir. 1983) 722 F.2d 468, 475.)
2. 92-607
1990) 913 F.2d 1350, 1358.) The United States Supreme Court "has repeatedly emphasized that
`over no conceivable subject is the legislative power of Congress more complete than it is over' the
admission of aliens." (Fiallo v. Bell (1977) 430 U.S. 787, 792.) "The ability to control entry and
to identify those admitted remains vital to the welfare and security of the people." (United States
v. Elder (S.D. Tex. 1985) 601 F.Supp. 1574, 1578; see also Boutilier v. Immigration and
Naturalization Service (1967) 387 U.S. 118, 123-124; The Japanese Immigrant Case (1903) 189
U.S. 86, 96-97.)
Here, the city ordinance establishes city policy vis-a-vis application of the civil
provisions of the Act to undocumented aliens within the city. The ordinance thus concerns a subject
matter, immigration, wherein federal power to regulate is exclusive. (See De Canas v. Bica (1975)
424 U.S. 351, 354-355.) However, as pointed out in De Canas v. Bica, "standing alone, the fact that
aliens are the subject of a state statute does not render it a regulation of immigration, which is
essentially a determination of who should or should not be admitted into the country and the
conditions under which a legal entrant may remain." (Id., at p. 355.)4
The city's ordinance seeks to preclude cooperation by city officers and employees
with the INS such that the risk of detection faced by undocumented aliens is not affected by any
contact with city personnel. In so doing, the ordinance makes it possible for an undocumented alien
to move more freely within the community and diminishes the likelihood than an alien's arrest on
a state charge will result in an INS "detention hold" being placed on that individual. Thus, although
the ordinance does not directly regulate immigration, it regulates an integrally related subject matter
-- the detection of persons whose presence in this country may violate the civil provisions of the Act.
Obviously, only upon detection may deportation proceedings be commenced. Such proceedings are
central to the enforcement of the Act.
When a state or local governmental entity enacts legislation which involves federal
prerogatives, the application of the supremacy clause of the United States Constitution5 must be
considered. (See De Canas v. Bica, supra, 424 U.S. 351, 356.) One situation in which federal
preemption of local legislation occurs is when the local enactment "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress." (Hines v.
Davidowitz (1941) 312 U.S. 52, 67.) "[E]ven absent . . . a manifestation of congressional intent to
`occupy the field,' the Supremacy Clause requires the invalidation of any state legislation that
burdens or conflicts in any manner with any federal laws or treaties." (De Canas v. Bica, supra, 424
U.S. 351, 357, fn. 5.) This particular preemption test "is applied when there is room in the subject
area for both federal and local regulation" and "requires the court to examine both statutory schemes
to determine if they can co-exist or if they conflict." (Rogers v. Larson (3rd Cir. 1977) 563 F.2d
617, 621.)
4
For purposes of federal preemption, local ordinances are treated in the same manner as
state statutes. (See Hillsborough County v. Automated Medical Laboratories, Inc. (1985) 471 U.S.
707, 713.)
5
The supremacy clause provides as follows:
"This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the land; and the judges in every
state shall be bound thereby; any thing in the Constitution or laws of any state to the
contrary notwithstanding." (U.S. Const., art. VI, cl. 2.)
3. 92-607
In United States v. City of Philadelphia (3rd Cir. 1986) 798 F.2d 81, the court
examined whether Philadelphia could prohibit Temple School of Law from allowing a federal
agency on campus to recruit for the armed services. The city's ordinance banned employment
recruiting based on an individual's sexual orientation, and "the Army, Navy, and Marine Corps do
not accept homosexuals as members of the uniformed services." (Id., at p. 84.) The court found a
conflict between the city's order implementing its ordinance and the federal policy supporting on-
campus military recruiting. The court analyzed the issue as follows:
"The task presently before us, then, is to determine whether the Ordinance,
as applied to the Law School by the Order, `conflicts with Congressional legislation
or with any discernible Congressional policy.' [Citation.] While ostensibly a
question of governmental immunity, [citation] this issue is perhaps `best understood
as posing an issue essentially of federal preemption.' [Citation.] Viewed in this
light, the Order `conflicts' with federal law if, and to the extent that, it `stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.' [Citation.]
"In conducting this inquiry, we remain mindful of the fact that `[a]n
unexpressed purpose of Congress to set aside statutes of the states regulating their
internal affairs is not lightly to be inferred and ought not to be implied where the
legislative command, read in the light of its history, remains ambiguous.' [Citations.]
"........................
"Given . . . the funding prohibitions contained in the DDA Acts of 1971 and
1973, and the NASAA Act of 1969, it is obvious that the Commission's Order
conflicts with a `discernible Congressional policy.' [Citation.] The Order absolutely
prohibits the cooperation that Congress intended this legislation to engender and, as
a result, military recruiters are denied the access that Congress deemed critical to
their ability to conduct `intensive recruiting campaigns.'
"Nonetheless, the Supreme Court has cautioned that `"a mere conflict in
words is not sufficient"; the question remains whether the "consequences [of the state
regulation] sufficiently injure the objectives of the federal program to require
nonrecognition."' [Citations.] We interpret this statement to mean, in the present
circumstances, that if the Order does not significantly impair the military's ability to
recruit doctors, lawyers, and other skilled personnel, the fact that it conflicts with
Congress' policy of promoting on-campus recruiting by the military would not permit
us to invalidate the Order.
".........................
" . . . We believe that it is appropriate to consider the Order's effect on
military recruiting on Temple's campus generally, as well as its impact on military
recruiting on other college and university campuses throughout the City, and the
possibility that other jurisdictions may adopt a similar interpretation of their anti-
discrimination ordinances. [Citation.] We cannot conceive of any reason why the
Commission would prohibit the military from recruiting lawyers at Temple, yet
permit it to recruit doctors or engineers at the University of Pennsylvania. Nor can
we conceive of any reason why other jurisdictions with similar laws would adopt a
construction different from that adopted by the Commission. Rather, these
4. 92-607
considerations simply underscore the fact that the Order has `the potential to
frustrate' effective military recruiting, both in Philadelphia and throughout the nation.
[Citation.]
"Finally, while we agree . . . that, under the DDA Act of 1973 and its
predecessor legislation, each college and university retained the `absolute right to
determine whether it desires to have any association with the military forces of its
country, and this includes the right to determine whether it desires to permit military
recruiters . . . on its campus' [citation], we do not believe that this detracts from our
conclusions that Congress considers on-campus recruiting to be an integral part of
its military recruiting policy, and that the Order significantly impairs the military's
ability to recruit the skilled personnel it requires.
"We conclude, therefore, that the Order conflicts with a clearly discernible
Congressional policy concerning military recruitment on the campuses of this
nation's colleges and universities. . . .
"In reaching this conclusion we freely concede that the issues raised by the
Commission are difficult given the traditional importance of the City's interest, under
its police power, in eradicating employment discrimination. But our conviction that
the Order cannot stand is highlighted by one critical fact: in most (if not all) of the
reported cases involving questions of governmental immunity, it was at least
theoretically possible for the persons involved to comply with both the state and
federal policies involved. . . .
"In the present case, on the other hand, there is nothing that Temple can do
to enable it to permit the military to conduct on-campus interviews. Quite to the
contrary, given the Order, Temple is barred from cooperating with the military unless
and until the United States changes its employment policy with respect to
homosexuals. Under these circumstances, we believe that the Commission has no
more right to enforce the Ordinance against Temple than did the Town of Windsor
to enforce its building permit regulations against the contractor hired to construct a
top-secret federal research facility. [Citation.]" (Id., at pp. 85-89; fns. omitted.)
Similarly, the ordinance with which we are concerned creates a conflict with a federal
program. It prohibits city cooperation with the INS in the administration of the civil provisions of
the Act. Such administration is predicated upon the ability of the INS to detect the presence of those
who are not lawfully residing in this country. Congress surely did not intend that state and local
governments would undermine the deterrent effect of the criminal or civil penalties contained in the
Act.6 By giving the impression that illegal aliens may obtain refuge from such penalties in a
particular locale, the ordinance creates localized immigration policy and dissipates enforcement of
the federal laws.
That Congress has placed great importance on the immigration detection effort is
evidenced by the criminal penalties which have been established for those who assist illegal aliens
in escaping detection. (8 U.S.C. § 1324; see United States v. Rubio-Gonzales (5th Cir. 1982) 674
6
Section 115 of the 1986 amendments to the Act states that "the immigration laws of the
United States should be enforced vigorously and uniformly. . . ."
5. 92-607
F.2d 1067, 1073; United States v. Cantu (5th Cir. 1977) 557 F.2d 1173, 1180; United States v. Lopez
(2d Cir. 1975) 521 F.2d 437, 444; 67 Ops.Cal.Atty.Gen. 331, 338, fn. 16 (1984).)7 This discernible
congressional policy is substantially frustrated by a city ordinance impeding the right and the duty
of city officials and law enforcement personnel to report, in the course of their official duties,
possible violations of the Act to the proper federal authorities.8 As one of the principal collection
points for legally obtainable, non-confidential information about persons who may be unlawfully
present in this country, local law enforcement agencies constitute an important component of the
overall effort to effectuate the civil provisions of the Act. By peremptorily removing such a
significant component from enforcement activities, the city's ordinance stands "as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress." (Hines v.
Davidowitz, supra, 312 U.S. 52, 67.)9
7
Section 1324 of title 8 of the United States Code provides in part:
"(a) Criminal Penalties
"(1) Any person who --
". . . . . . . . . . . . . . . . . . . . . . . . . . .
"(C) knowing or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United States in
violation of law, conceals, harbors, or shields from detection, or
attempts to conceal, harbor, or shield from detection, such alien in
any place, including any building or any means of transportation; or
"(D) encourages or induces an alien to come to, enter,
or reside in the United States, knowing or in reckless disregard of the
fact that such coming to, entry, or residence is or will be in violation
of law, shall be fined in accordance with Title 18, or imprisoned not
more than five years, or both, for each alien in respect to whom any
violation of this paragraph occurs."
8
"Since a regulation imposed on one who deals with the Government has as much potential
to obstruct governmental functions as a regulation imposed on the Government itself" (North
Dakota v. U.S. (1990) 495 U.S. 423, 438), it is of no consequence that the ordinance here would
operate upon city officials and employees rather than directly upon INS agents. Also, because of
the conclusion we reach, we need not consider the First Amendment rights of city officers and
employees to communicate with INS agents or their possible obligations under any oaths of office.
9
We note that the ordinance allows cooperation with INS agents if such assistance is required
by federal or state statute or regulation or court decision. The supremacy clause, however, is
violated here without a direct court decision ordering the city to comply with the federal
Constitution. It is the ordinance's creation of an "obstacle" to the objectives of Congress that is
impermissible, regardless of what the ordinance may otherwise allow. A direct conflict with a
federal or state statute or regulation presents a separate and distinct basis for the preemption of a
local ordinance. (See Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142-143; Savage v.
Jones (1912) 225 U.S. 501, 533; Galvan v. Superior Court (1969) 70 Cal.2d 851, 856; Ex parte
Daniels (1920) 183 Cal. 636, 642-645.)
6. 92-607
We conclude that due to the supremacy clause of the United States Constitution, a
city may not prohibit its officers and employees from cooperating in their official capacities with
INS investigation, detention, or arrest procedures relating to alleged violations of the civil provisions
of the federal immigration laws.
*****
7. 92-607