Attorneys say SFPD may have violated the law during ICE arrest at SFO

A bystander who witnessed ICE agents arresting immigrants at San Francisco International Airport on Sunday has filed a complaint with the California Department of Justice, copying the San Francisco City Attorney on her email.

Those agencies are responsible for enforcing violations of San Francisco’s sanctuary city law.

On Sunday evening, ICE officers arrested two Guatemalan immigrants at the airport. According to ICE, the family had a 2019 final order of removal from an immigration judge. 

Footage caught on multiple bystanders’ cameras shows plainclothes ICE officers restraining a woman who was kneeling on a bench as her young daughter cried nearby. 

During the incident, around 20 San Francisco police officers were seen standing in a circle around the ICE agents as the ICE agents conducted enforcement. 

A crowd of bystanders formed, and several filmed the incident, asking the ICE officers to identify themselves. The agents did not provide any identification, nor did SFPD answer bystanders’ questions about who the agents were. 

Attorneys familiar with sanctuary city policy allege that the San Francisco Police Department’s actions at the airport during the federal arrests may present a violation of the city’s sanctuary ordinance and the police department’s own policy directives.

Officer Robert Rueca, an SFPD spokesperson, said in a statement that SFPD officers do not assist in the enforcement of civil federal immigration laws. The SFPD states that its officers arrived in response to a 911 call, and remained at the scene to “maintain public safety.” 

Its office did not respond to specific questions regarding whether police presence during the arrest violates departmental policy directives or the city’s ordinance. Instead, a department spokesperson referred to the earlier statement released Monday morning.

“A dozen officers stand in a circle to help officials to take or keep someone in custody. That seems to fit the definition of ‘assisting,’” said Angela Chan, assistant chief attorney at the San Francisco public defender’s office. She called the incident “alarming and horrifying.” 

“The crowd was furious, but was giving them their distance and was only asking reasonable questions about the identification, and documenting what was happening,” said Nicole Killian, the bystander who filed a complaint.

Killian said she believes that if the SFPD was not present during the arrest, the ICE agents would have been unable to conduct their enforcement operations. 

“I was like, you’re not supposed to be helping, but if you’re allowed to crowd control; how is that not helping them?” Killian told Mission Local. 

Jordan Wells, a senior staff attorney at the Lawyers Committee For Civil Rights, said that the SFPD’s actions do not seem to fit into the listed exceptions in the state sanctuary law, and likely amount to a violation. 

Bill Ong Hing, a longtime immigration attorney, professor of law at University of San Francisco and former police commissioner, said that if there was not an emergency to the public or possible harm coming to the ICE agents, then the SFPD would have violated both the city sanctuary ordinance and the police department’s own policy directives.

But, he said, depending upon the circumstances, “SFPD may argue [the woman being arrested] created a situation where there was a danger to the public.”

What happened 

There are, at present, no claims that federal immigration officials overstepped their authority or violated any policies in enacting this arrest. 

The San Francisco Police Department, however, is bound to state sanctuary law, San Francisco’s sanctuary ordinance and also San Francisco Police Department general orders, which are policy directives.

Immigration attorneys say that by surrounding the ICE officers as they made the arrest, police violated these policies, which bar assisting in immigration enforcement.

“Creating a perimeter around an ICE arrest to keep the public at a distance so that ICE can conduct an arrest appears to be the SFPD using its resources to support an ICE arrest,” sums up Grisel Ruiz, ​​the senior managing attorney of the Immigrant Legal Resource Center.

“This type of behavior could certainly be construed to violate local and state laws, because the SFPD is using its resources to facilitate an immigration arrest. In other words, the dispatch of local law enforcement to an ICE arrest can be a violation of state and local laws when that assistance supports an immigration arrest.”

There are exceptions to the above referenced laws, Ruiz adds, “but, to my knowledge, they do not apply here.”

Alleged policy violations

San Francisco Police Department policy states that local law enforcement agents “shall not cooperate with or assist ICE/CBP in any investigation, detention, or arrest procedures, public or clandestine, where in any such instance the express or implied purpose is the enforcement of federal immigration laws.”

It also bars local police from helping ICE or Customs and Border Protection transport individuals.

Chan says that, aside from assisting ICE, there is no other reason as to why local police were present. “It does not appear there is any crime being committed by any members of the public.” 

Local law enforcement is allowed to assist in the case of an emergency, but Chan says of the recorded arrest that it “does not appear a member of the public is threatening safety and it does not appear any violence is occurring.” Since no crime was being committed by any member of the public, local law enforcement would be in violation of its policy, she said. 

At one point during the detention, the older Guatemalan immigrant was put into a wheelchair and wheeled away, and SFPD officers formed a phalanx around the ICE agents.

Chan says the SFPD was essentially escorting the ICE agents as they transported the woman, which would mean the local officers are “assisting” ICE in transportation, an act directly contravened in the SFPD’s policy directives. 

The city also has its own sanctuary city ordinance that “prohibits city employees and law enforcement from using city funds or resources to assist federal immigration enforcement (ICE).”

In 2020, during President Donald Trump’s first administration, Chan worked on writing the San Francisco Police Department policy.

“I was alarmed and horrified seeing these videos,” she said. “Because it does show a dozen or more SFPD officers acting as security for ICE and doing precisely what we spent many months creating a policy to prohibit.”