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SF sues Trump over sanctuary city executive order

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San Francisco City Attorney Dennis Herrera and San Francisco Mayor Ed Lee announce plans to file a lawsuit against President Donald Trump over Trump’s sanctuary city executive order during a news conference at City Hall on Tuesday, January 31, 2017. (Jessica Christian/S.F. Examiner)
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San Francisco’s widespread resistance to President Donald Trump broadened from protests in the streets to inside a courthouse Tuesday.

Staying true to San Francisco’s vow to counter the president at every step of the way, City Attorney Dennis Herrera filed a lawsuit Tuesday to strike down Trump’s executive order to strip sanctuary cities of federal funding if they do not cooperate with federal immigration enforcement.

SEE RELATED: Federal funding in SF in limbo under Trump administration

The federal lawsuit, the first filed by a U.S. city over Trump’s sanctuary city executive order, comes as The City braces for potential funding cuts as it relies on $1.2 billion annually in federal funding for a range of services.

“The president’s executive order is not only unconstitutional, it is un-American,” Herrera said during a Tuesday morning news conference where he was joined by Mayor Ed Lee.

Trump’s executive order signed Jan. 25 could mean that if San Francisco doesn’t comply with the order, The City could lose federal funding and face other penalties. Trump relies on federal law section 1373 for his legal grounds, which bars cities from restricting government employees from communicating information about a person’s immigration status.

Herrera has asked the court to halt the implementation of the executive order, invalidate the federal law section 1373 itself and affirm that San Francisco’s sanctuary laws comply with federal law.

The City’s sanctuary laws, which date back to 1989, don’t explicitly prohibit employees from sharing immigration information with federal immigration officials, but they do prohibit using city funds to ask people their immigration status.

Under The City’s sanctuary policies, Sheriff Vicki Hennessy has ignored 41 requests in the past six months from U.S. Immigration and Customs Enforcement to be notified in advance when undocumented inmates are released.

The lawsuit argues Hennessy’s policy is legal under federal law 1373, which only deals with communication of immigration status.

The requests are “not issued by a judge and is not based on a finding of probable cause,” but “by contrast, San Francisco does comply with criminal warrants,” the lawsuit said.

The lawsuit notes that federal authorities are aware of the immigration status of those in custody through fingerprints the Sheriff’s Department sends to the state’s Department of Justice.

A recent U.S. Supreme Court ruling may work in San Francisco’s favor. “As recently as 2012, the Supreme Court in a case involving the Affordable Care Act said that the federal government can’t put a financial gun to the head of local and state government,” Herrera said.

The City receives $1.2 billion, 13 percent of its total annual budget, in federal funds, according to City Controller Ben Rosenfield, of which $800 million “is for federal entitlement programs, including food stamps, foster care, childcare, and Medicaid healthcare funds.” About $200 million is “an assortment of various grants for a host of smaller programs.”

While currently there are no actual funding cuts being proposed – just the threat of them – Herrera said it was important to resolve the legal questions before it gets to that point.

The mayor praised Herrera for filing the lawsuit and said it was part of San Francisco’s vow to protect its sanctuary status. “Today, we fight back,” Lee said.

Herrera said that “President Trump’s executive order tries to turn city and state employees into federal immigration officers.”

“No president can commandeer the local police force and turn it into the deportation arm of the federal government,” he said.

Trump took on San Francisco and sanctuary city policies during his campaign for the presidency following the July 2015 killing of Kathryn “Kate” Steinle. Steinle was allegedly fatally shot by a Mexican national recently released from a San Francisco jail.

When Trump executed his order last week, he suggested sanctuary policies make cities unsafe. “We are going to get the bad ones out, the criminals and drug dealers and gangsters and gang leaders,” Trump said Jan. 25. “The day is over when they can stay in our country and wreak havoc.”

City officials Tuesday said sanctuary policies make cities safer and stronger economically by fostering trust in immigrant communities where those are not fearful of deportation if they report crimes, send their children to school or access other city services.

Herrera pointed to a Center for American Progress study by a political science professor at University of California, San Diego. The study found that “on average, 35.5 fewer crimes committed per 10,000 people in sanctuary counties compared to non-sanctuary counties.”

As The City pushes back against Trump it will proceed with normal procedures to secure federal funding. The board’s Budget and Finance Committee will vote Thursday on authorizing this year’s application for federal homeland security grant funding, which last year totaled $23 million for the Bay Area region.

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