Figueroa Zarceno v. City and County of San Francisco et al

Filing 1

COMPLAINT for Declaratory and Injunctive Relief and Damages against All Defendants ( Filing fee $ 400, receipt number 0971-11079785.). Filed byPedro Figueroa Zarceno. (Attachments: # 1 Civil Cover Sheet)(Lee, Belinda) (Filed on 1/17/2017)

1
2
3
4
5
6
7
8
9
10
11

LATHAM & WATKINS LLP
Belinda S Lee (Bar No. 199635)
[e-mail]
Nicholas Y. Lin (Bar No. 268154)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, California 94111
Telephone: [phone]
Facsimile: +1.415.395.8095
ASIAN AMERICANS ADVANCING JUSTICE –
ASIAN LAW CAUCUS
Angela F. Chan (Bar No. 250138)
[e-mail]
Saira A. Hussain (Bar No. 300326)
[e-mail]
Winifred V. Kao (Bar No. 241473)
[e-mail]
55 Columbus Ave
San Francisco, California 94111
Telephone: [phone]
Facsimile: +1.415.896.1702

12
13

Attorneys for Plaintiff
Pedro Figueroa Zarceno

14

(additional counsel on signature page)

15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18
19

Pedro Figueroa Zarceno,
Plaintiff

20
21

CASE NO. 3:17-cv-229
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF AND DAMAGES

v.
DEMAND FOR JURY TRIAL

22
23
24
25
26
27

The City and County of San Francisco,
Acting Chief of Police Toney Chaplin,
Sheriff Vicki Hennessey in their official
capacities; Sergeant Eric Balmy, Public
Service Agent Nicole Chambers, Officer
Kevin Clifford, Sergeant Trevor Kelly,
Central Warrant Bureau Agent Dayna
Thibeaux individually and in their official
capacities; DOES 1-50 inclusive,
Defendants.

28
ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

1

Plaintiff Pedro Figueroa Zarceno alleges, upon personal knowledge as to himself and

2

upon information and belief as to all others, as follows:

3

I.

4
5
6

INTRODUCTION
1.

This case arises from the unlawful arrest and detention of Plaintiff Pedro Figueroa

Zarceno at the hands of the San Francisco Police Department.
2.

Mr. Figueroa’s car was stolen in November 2015. Within days, Mr. Figueroa was

7

informed that the San Francisco Police Department had recovered his car and towed it to an

8

impound lot. On December 2, 2015 following the Police Department’s instructions,

9

Mr. Figueroa went to the impound lot, where he was then directed to the nearest police station to

10

get the paperwork necessary to retrieve his car. However, instead of being assisted by the police,

11

Mr. Figueroa was victimized yet again when he was unlawfully arrested and detained by San

12

Francisco Police Department officers.

13

3.

Working together, San Francisco Police Department officers and the San

14

Francisco Sheriff’s Department identified a civil immigration warrant for Mr. Figueroa, and then

15

proceeded to violate San Francisco’s Sanctuary Ordinance by contacting federal immigration

16

authorities, providing them with Mr. Figueroa’s location, and coordinating to hold him in

17

custody long enough for federal immigration agents to arrive at the police station. When the

18

officers finally “released” Mr. Figueroa, they led him—still handcuffed—to a side exit of the

19

police station, where immigration agents were waiting just outside the station door. In truth, this

20

was anything but a “release.” The San Francisco Police Department directly transferred

21

Mr. Figueroa to Immigration and Customs Enforcement custody, where he remained for the next

22

two months. To add insult to injury, the San Francisco Police Department auctioned off

23

Mr. Figueroa’s car while he remained in custody and without providing any notice to him or his

24

family. Immigration and Customs Enforcement continues to seek to deport Mr. Figueroa.

25

4.

San Francisco is a sanctuary city—a city of refuge for immigrants, where

26

everyone should be safe to report crimes to law enforcement. Mr. Figueroa’s plight is not the

27

first time that San Francisco Police Department personnel have unlawfully and wrongfully

28

arrested or detained the victim of a crime based solely on a civil immigration matter, nor is it the

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

1

1

first time that San Francisco Police Department personnel have violated San Francisco’s

2

Sanctuary Ordinance. This action seeks to make it the last.

3

5.

Mr. Figueroa seeks an end to Defendants’ unlawful actions, practices, and

4

policies, recognition that he was the victim of an unlawful arrest and detention, money damages

5

for the injuries and lost wages that he has suffered, and restitution for his property. The specific

6

relief sought by Mr. Figueroa against each Defendant is alleged herein.

7

II.

8
9

JURISDICTION
6.

This Court has jurisdiction over the claims alleged in this Complaint pursuant to

28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (civil rights), 28 U.S.C. § 2201

10

(declaratory relief), 42 U.S.C. § 1983, and 28 U.S.C. § 1651. Supplemental jurisdiction over

11

pendant state law claims is proper pursuant to 28 U.S.C. § 1367 because all of the claims arise

12

from a common nucleus of operative facts that are so intertwined that they cannot be reasonably

13

separated.

14

III.

15

VENUE AND INTRA-DISTRICT ASSIGNMENT
7.

Venue is proper in this Court pursuant to 28 U.SC. § 1391(b) because Defendant

16

City and County of San Francisco resides in and can be found in this judicial district. This action

17

arises in San Francisco County and assignment in either the Oakland Division or San Francisco

18

division is appropriate pursuant to Civil Local Rule 3-2.

19

IV.

20

PARTIES
8.

Plaintiff Pedro Figueroa Zarceno is a 32-year old Salvadoran male who resides in

21

the City and County of San Francisco, in the State of California. He resided in San Francisco

22

during the events relevant to and described in this Complaint.

23

9.

Defendant City and County of San Francisco (“the City” or “San Francisco”) is a

24

political subdivision of the State of California that can be sued in its own name. Upon

25

information and belief, Defendant San Francisco includes, operates, governs, and is responsible

26

for the San Francisco Police Department (“SFPD”) and the San Francisco Sheriff’s Department

27

(“Sheriff’s Department”) pursuant to the laws of the State of California and San Francisco.

28
ATTORNEYS AT LAW
SAN FRANCISCO

10.

Defendant Acting Chief of Police Toney Chaplin is the current Acting Chief of
COMPLAINT

2

1

Police of the San Francisco Police Department and is responsible for the policies, practices, and

2

customs of the San Francisco Police Department. Defendant Chaplin directs the hiring,

3

screening, training, retention, supervision, discipline, counseling, and control of the officers

4

under his supervision and command. At all relevant times, Defendant Chaplin was acting under

5

color of law. He is sued in his official capacity.

6

11.

Defendant Public Service Agent Nicole Chambers is an employee of the San

7

Francisco Police Department. At all relevant times, Defendant Chambers was acting under color

8

of law. She is sued in her individual and official capacities.

9

12.

Defendant Officer Kevin C. Clifford is an officer with the San Francisco Police

10

Department. At all relevant times, Defendant Clifford was acting under color of law. He is sued

11

in his individual and official capacities.

12

13.

Defendant Sergeant Eric S. Balmy is an officer with the San Francisco Police

13

Department. At all relevant times, Defendant Balmy was acting under color of law. He is sued

14

in his individual and official capacities.

15

14.

Defendant Sergeant Trevor Kelly is an officer with the San Francisco Police

16

Department. At all relevant times, Defendant Kelly was acting under color of law. He is sued in

17

his individual and official capacities.

18

15.

Defendant Sheriff Vicki Hennessey is the current Sheriff of the San Francisco

19

Sheriff’s Department. Defendant Hennessey is responsible for the policies, practices, and

20

customs of the San Francisco Sheriff’s Department. Defendant Hennessey also directs the

21

hiring, screening, training, retention, supervision, discipline, counseling, and control of the

22

deputy sheriffs under her supervision and command. At all relevant times, Defendant Hennessey

23

was acting under color of law. She is sued in her official capacity.

24

16.

Defendant Central Warrant Bureau Agent Dayna Thibeaux is an employee with

25

the San Francisco Sheriff’s Department. At all relevant times, Defendant Thibeaux was acting

26

under color of law. She is sued in her individual and official capacities.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

17.

At all relevant times, Defendants DOES 1 through 50 (also “DOE defendants”)

were agents, employees, or otherwise representatives of the City. At all relevant times, DOES 1
COMPLAINT

3

1

through 50 were acting under color of law. Upon information and belief, Plaintiff alleges that

2

many, if not all, of DOES 1 through 50 are residents of the Northern District of California. Upon

3

information and belief, Plaintiff alleges that DOES 1 through 50, inclusive, are legally

4

responsible for the wrongs committed against Plaintiff, as alleged herein. When Plaintiff

5

becomes aware of the true identities of one or more DOE defendants, Plaintiff will amend this

6

complaint to add or substitute them as named Defendants.

7

V.

SAN FRANCISCO IS A SANCTUARY CITY

8

18.

The City and County of San Francisco is a City and County of Refuge.

9

19.

San Francisco declared itself a city of refuge on December 23, 1985 when the San

10

Francisco Board of Supervisors passed San Francisco Resolution 1087-85, the City of Refuge

11

Resolution, in response to the Salvadoran and Guatemalan refugee crises. The resolution

12

provided, in part, that: “San Francisco finds that immigration and refugee policy is a matter of

13

Federal jurisdiction; that federal employees not City employees, should be considered

14

responsible for implementation of immigration and refugee policy.”

15

20.

Under the City of Refuge Resolution, then-Mayor of San Francisco Dianne

16

Feinstein was urged by the San Francisco Board of Supervisors to “affirm that City Departments

17

shall not discriminate against Salvadoran [] refugees because of immigration status, and shall not

18

jeopardize the safety and welfare of law-abiding refugees by acting in a way that may cause their

19

deportation.”

20

21.

Mayor Feinstein explained that the resolution “has one purpose and that is to

21

emphasize that persons are not going to be discriminated against or hassled in San Francisco

22

because of their immigration status as long as they are law-abiding.” She also explained that the

23

resolution addressed the fear that refugees had of using basic public services that most people

24

take for granted such as calling the police when there is trouble.

25

22.

Four years later, in October of 1989, San Francisco Supervisor Jim Gonzales

26

sponsored the City of Refuge Ordinance, also known as the “Sanctuary Ordinance,” to codify the

27

policy in the 1985 City of Refuge Resolution.

28
ATTORNEYS AT LAW
SAN FRANCISCO

23.

The Sanctuary Ordinance was described by Supervisor Gonzales as, “in essence,”
COMPLAINT

4

1

a civil rights ordinance, and was unanimously approved by the San Francisco Board of

2

Supervisors. The Sanctuary Ordinance was signed into law by then-Mayor Art Agnos on

3

October 24, 1989. See San Francisco Admin. Code Chpt. 12H.

4
5
6

24.

Among other provisions, the Sanctuary Ordinance created a blanket prohibition

on the use of City funds or resources to assist in the enforcement of federal immigration law.
25.

This includes a prohibition on San Francisco employees assisting or cooperating

7

with any investigation, detention, or arrest conducted by the federal agency charged with

8

enforcement of federal immigration law.

9

26.

In 1992, the Sanctuary Ordinance was amended to create an exception allowing

10

the use of City funds or resources to report an individual to federal immigration authorities if the

11

person had been convicted of certain felonies. See San Francisco Admin. Code Chpt. 12H § 2-1.

12

27.

For more than 20 years, San Francisco employees, including San Francisco Police

13

Department officers and San Francisco Sheriff’s Department deputies, have been prohibited from

14

cooperating with and assisting federal immigration officials in regards to the vast majority of

15

immigrants.

16

28.

In March 2007, then-Mayor Gavin Newsom issued Executive Directive 07-01,

17

instituting the Sanctuary City Initiative, which required all City Departments to ensure that

18

departmental rules, regulations, and protocols adhere to the Sanctuary Ordinance. The Executive

19

Directive emphasized that no department, agency, commission, officer, or employee of the City

20

and County of San Francisco may assist federal immigration authorities unless required by law.

21

29.

Executive Directive 07-01 also included an educational outreach campaign,

22

entitled “Know Your Rights.” The campaign aimed to ensure that immigrants were informed of

23

their civil rights when reaching out and receiving vital services from City employees including

24

those services provided by the SFPD, and covered the main provisions of the Sanctuary

25

Ordinance.

26

30.

There was also a media campaign consisting of print ads, newspaper ads, public

27

transit ads, and television public service announcements aimed to ensure that residents of San

28

Francisco, regardless of their immigration status, felt safe when reaching out and receiving vital

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

5

1
2

services provided by City employees.
31.

Upon information and belief, the City also created brochures titled “San Francisco

3

is a Sanctuary City,” which indicated that San Francisco employees would not report immigrants

4

or their immigration status to federal immigration authorities and that immigrants could feel safe

5

when contacting the police.

6
7

32.

Mayor Gavin Newsom, on or about April 2, 2008, explained the purpose of the

public awareness campaign regarding the Sanctuary Ordinance:

8

The City’s public awareness campaign is a reminder that City
employees will not report individuals or their immigration status to
federal immigration agents. San Francisco residents should feel
safe when they . . . report a crime to the Police Department. . . .
We’ve been very concerned that in the last year and a half at the
renewed vigor of the federal government or ICE for immigration
raids. . . . [T]o calm people’s fears, people’s instinct to go
underground, to not come forth and report a crime because of that
fear, . . . . We are standing up to say to all of our residents, ‘We
don’t care what your status is in terms of its legal certification, we
care that you, as a human being are a resident of our city. We want
you to participate in the life of our city.’

9
10
11
12
13
14
15
16
17

33.

12H of the San Francisco Administrative Code provided:

18

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 the immigration
status of individuals in the City of and County of San Francisco
unless such assistance is required by Federal or State statute,
regulation or court decision.

19
20
21
22

At the time of Mr. Figueroa’s unlawful arrest and detention, section 2 of Chapter

34.

In particular, section 2 prohibits City employees from “[a]ssisting or cooperating,

23

in one’s official capacity, with any Immigration and Naturalization Service (INS) investigation,

24

detention, or arrest procedures, public or clandestine relating to alleged violations of the civil

25

provisions of the Federal immigration law.” San Francisco Admin. Code Chpt. 12H § 2(a).

26

35.

Additionally, section 2 prohibits City employees from “[r]equesting information

27

about, or disseminating information regarding, the immigration status of any individual, or

28

conditioning the provision of services or benefits by the City and County of San Francisco upon

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

6

1

immigration status, except as required by federal or State statute or regulation, City and County

2

public assistance criteria, or court decision.” San Francisco Admin. Code Chpt. 12H § 2(c).

3

VI.

4
5

SAN FRANCISCO LAW ENFORCEMENT PERSONNEL HAVE NO ROLE IN
THE ENFORCEMENT OF IMMIGRATION LAW
A.

Local Law Enforcement Agencies Lack the Independent Authority to
Enforce Immigration Law

36.

Local law enforcement officers of a State or a State subdivision are not permitted

6
7
8
9

unilaterally to enforce federal immigration laws. 8 U.S.C. § 1357(g)(10)(B) (2006).
37.

The United States Attorney General may enter into a written agreement with a

10

State or any of its subdivisions that, in essence, deputizes law enforcement officers to carry out

11

immigration laws at the expense of the State or the appropriate subdivision. 8 U.S.C.

12

§ 1357(g)(1).

13

38.

None of San Francisco, the Sherriff’s Department, nor the SFPD have entered into

14

a written agreement with federal immigration authorities pursuant to 8 U.S.C. § 1357(g) to

15

authorize City employees to enforce civil immigration law.

16

39.

Mere unauthorized presence in the United States alone is not a criminal matter,

17

and as such, does not give rise to an inference of criminal activity. Arizona v. United States, 132

18

S. Ct. 2492, 2506 (2012). Thus, without an agreement with the United States Attorney General,

19

local law enforcement officers cannot arrest or detain individuals based on mere unauthorized

20

presence in the United States.

21

B.

San Francisco Police Department General Orders Prohibit the Enforcement
of Immigration Laws

40.

The SFPD has explicitly acknowledged San Francisco’s status as a Sanctuary

22
23
24

City. SFPD General Order (“DGO”) 5.15, governing the Enforcement of Immigration Laws, has

25

been in effect since December 13, 1995. It provides, in pertinent part:

26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

•

“In accordance with the City of Refuge Ordinance . . . Members
shall not stop, question, or detain any individual because of the
individual’s national origin, foreign appearance, inability to speak
English, or immigration status []. The mere presence of so-called
‘illegal aliens’ is not a criminal offense.”
COMPLAINT

7

1

•

2

•

3
4
5

DGO 5.15, §§ I.B.1, B.2, B.3.d.
41.

6

Upon information and belief, in a 2007 press release, the SFPD reaffirmed that:
By virtue of San Francisco Administrative Code Chapter 12H and
Police DGOs, members of the SFPD are prohibited from
contacting or stopping individuals solely because of their
immigration or perceived immigration status. Members of the
SFPD do not enforce immigration laws and do not assist any other
agency in enforcing immigration laws. All persons, regardless of
their immigration status, have a right to receive essential city
services. Anyone who is the victim of a crime, or has information
about a crime, or is in need of any other service provided by the
SFPD, is encouraged to contact the SFPD.

7
8
9
10
11
12

“Members shall not enforce immigration laws or assist the INS in
the enforcement of immigration laws.”
“Members shall not assist the INS in transporting persons
suspected solely of violating federal immigration laws.”

42.

While the SFPD and Immigration and Customs Enforcement (“ICE”) entered into

13

a 2013 Memorandum of Understanding allowing the Secretary of Homeland Security to

14

designate members of the SFPD as Custom Officers (the “2013 MOU”), this was done for the

15

limited purpose of authorizing SFPD officers to assist in the enforcement of customs laws and

16

does not grant SFPD officers the authority to enforce immigration laws. For the avoidance of

17

any doubt, the 2013 MOU specifically states: “This agreement does not grant the designated

18

Custom Officers the authority to enforce ‘immigration’ laws.”

19

43.

The SFPD Implementing Instructions for the 2013 MOU (“Implementing

20

Instructions”) underscore that the 2013 MOU does not grant SFPD members authority to enforce

21

immigration laws: “SFPD members assigned . . . under the MOU shall not participate in any

22

investigation of immigration status or violation of immigration laws, nor shall they participate in

23

gathering or disseminating information regarding the immigration status of individuals within the

24

City and County of San Francisco, unless required by state or federal law, regulation or court

25

decision.”

26

44.

The Implementing Instructions also provide that the 2013 MOU does not

27

supersede the Sanctuary Ordinance or SFPD General Orders: “SFPD members assigned . . .

28

under the [2013] MOU shall at all times . . . remain subject to all SFPD rules, policies and

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

8

1

procedures. In the event of a conflict between ICE and SFPD direction, rules, policies and

2

procedures, SFPD members shall adhere to those of the SFPD.”

3

C.

The San Francisco Police Department Has Repeatedly Violated the
Sanctuary Ordinance

45.

Unfortunately, Mr. Figueroa’s case was not the first time the SFPD violated the

4
5
6

Sanctuary Ordinance and breached the trust of an immigrant who had come forward to report a

7

crime and seek the SFPD’s protection. Despite San Francisco’s long-standing ordinance and

8

DGO 5.15, the SFPD and its officers have a history of violating the Sanctuary Ordinance.

9

46.

As reported, nearly 10 years ago, in the San Francisco Bay Guardian article,

10

“Call the cops, get deported,” SFPD officers violated the Sanctuary Ordinance in 2006 when a

11

stabbing victim contacted SFPD officers for help and instead they arrested her—the victim—

12

based on her immigration status and turned her over to federal immigration authorities. See

13

Philip Hwang, Call the cops, get deported, S.F. Bay Guardian, Feb. 6, 2006, at 7.

14

47.

Upon information and belief, the San Francisco Office of Citizen Complaints

15

(“OCC”) launched an investigation into the 2006 incident and concluded that SFPD officers had

16

violated the Sanctuary Ordinance, and forwarded the case to the SFPD for discipline.

17

48.

In 2010, SFPD officers again violated the Sanctuary Ordinance.

18

49.

On or about June 2, 2010, SFPD officers performed a routine traffic stop during

19
20

which a computer query had revealed a non-criminal civil immigration warrant for an individual.
50.

While in immigration custody, the individual filed a complaint with the OCC. On

21

or about May 12, 2011, the OCC sustained the complaint, OCC Case No. 0416-10, finding that

22

the SFPD violated DGO 5.15 by affirmatively communicating with federal immigration

23

authorities.

24

51.

Then-Chief of the San Francisco Police Department Greg Suhr was informed

25

specifically about this incident in a letter urging him to take “prompt steps to ensure SFPD

26

officers are adequately trained so that violations of General Order 5.15 such as these never

27

happen again.”

28
ATTORNEYS AT LAW
SAN FRANCISCO

52.

These incidents provided notice to all Defendants and City policymakers that, at
COMPLAINT

9

1

best, local law enforcement personnel did not have adequate training with respect to the legal

2

significance of a civil immigration warrant, the database in which they are contained, and how

3

such warrants should be handled in light of San Francisco’s Sanctuary Ordinance. At worst,

4

these incidents constitute repeated, knowing, and deliberate violations of the Sanctuary

5

Ordinance and DGO 5.15.

6

VII.

7
8
9

SAN FRANCISCO HAS REAFFIRMED ITS COMMITMENT TO BEING A
SANCTUARY CITY
53.

San Francisco and its officials have reaffirmed the City’s commitment to the

Sanctuary Ordinance and its underlying policy goals, both before and after the events described

10

in this Complaint.

11

54.

Addressing the importance of the Sanctuary Ordinance, on or about July 6, 2015,

12

Mayor Ed Lee stated: “Our City’s policy helps immigrant and limited-English speaking

13

communities where sometimes people fear and mistrust the criminal justice system. We want

14

people to report crimes . . . I want others to know, San Francisco is a city where we protect the

15

well-being and success of all families, regardless of immigration status.”

16

55.

On or about November 15, 2016, the Board of Supervisors adopted San Francisco

17

Resolution No. 484-16 providing that: “San Francisco will remain a Sanctuary City. We will not

18

turn our back on the men and women from other countries who help make this city great, and

19

who represent over one third of our population.”

20

56.

The SFPD also provided a statement on or about November 2016 “reaffirming its

21

commitment to fostering trust and cooperation with all people of our City.” The statement

22

provided in part that: “We encourage everyone to communicate with San Francisco police

23

officers without fear of inquiry regarding their immigration status.”

24

VIII. DEFENDANTS’ UNLAWFUL AND WRONGFUL CONDUCT TOWARD
MR. FIGUEROA

25
26

A.

Mr. Figueroa’s Arrival in the United States

27

57.

Mr. Figueroa, originally from El Salvador, arrived in the United States in Eagle

28
ATTORNEYS AT LAW
SAN FRANCISCO

Pass, Texas on September 11, 2005, after fleeing his home country.
COMPLAINT

10

1

58.

Upon his arrival in Texas, Mr. Figueroa was detained by United States Customs

2

and Border Protection officers, who issued Mr. Figueroa a Notice to Appear (“NTA”)—an ICE

3

charging document, which initiates removal proceedings.

4
5

59.

The NTA did not include a removal hearing date or location, and although Mr.

Figueroa provided an address in San Francisco, he never received notice of his removal hearing.

6

60.

On December 7, 2005, Mr. Figueroa was ordered removed in absentia by an

7

immigration judge in San Antonio, Texas. Mr. Figueroa was not made aware that he was subject

8

to a removal order until after he was detained by ICE, following his unlawful arrest by SFPD.

9

B.

Mr. Figueroa Became the Victim of a Crime and Reported His Vehicle Stolen
to the SFPD

61.

On November 30, 2015, Mr. Figueroa discovered that his 1991 Acura Integra was

10
11
12

missing from where he had last parked it. Mr. Figueroa spoke with his fiancée (now wife), Dora

13

Alicia Cortes (“Mrs. Cortes”), about his missing car, and they decided to report it stolen.
62.

14

Mr. Figueroa believed he could approach the SFPD to report the theft without fear

15

of reprisal or negative immigration consequences. Mrs. Cortes also was not fearful of reaching

16

out to the SFPD for help, either for herself as a U.S. Citizen or for her fiancé as an immigrant.
63.

17

On November 30, 2015, Mr. Figueroa and Mrs. Cortes went to the Ingleside

18

SFPD station located at 1 Sgt. John V. Young Ln., San Francisco, CA 94112 and reported the car

19

theft.

20

64.

Mr. Figueroa, whose primary language is Spanish, speaks and understands very

21

little English. Mrs. Cortes, despite her limited English proficiency, which is apparent by her

22

vocabulary, accent, and sentence construction, spoke directly with the SFPD officer who made

23

the report (“Report Officer”). As part of this process, Mr. Figueroa provided his Salvadoran

24

identification to the Report Officer.

25

65.

The Report Officer did not provide, or offer to provide, a Spanish-speaking

26

officer to facilitate communication between the parties, despite both Mr. Figueroa and Mrs.

27

Cortes’ readily apparent English proficiency limitations.

28
ATTORNEYS AT LAW
SAN FRANCISCO

66.

In order to facilitate the SFPD’s criminal investigation of the vehicle theft, Mr.
COMPLAINT

11

1

Figueroa and Mrs. Cortes cooperated with the SFPD. As best as they could through their limited

2

English, they provided information about the vehicle and the circumstances leading up to its

3

theft.

4

67.

During this interaction, the Report Officer indicated to Mr. Figueroa and Mrs.

5

Cortes that Mr. Figueroa needed to sign a consent form, allowing the SFPD to tow Mr.

6

Figueroa’s car. Even though neither of them fully understood what Mr. Figueroa was signing, in

7

an effort to cooperate, Mr. Figueroa signed his name to the consent form. Without this consent

8

form—which Mr. Figueroa did not fully understand—the SFPD would not have been authorized

9

to tow Mr. Figueroa’s car. Mr. Figueroa also would not have had to obtain a vehicle release

10
11

form from SFPD to retrieve his car.
68.

Prior to the theft, Mr. Figueroa’s car was in good working condition and had a

12

value of approximately $2,100. Mr. Figueroa’s vehicle also contained construction tools for his

13

job worth approximately $500.

14

C.

Trusting in the SFPD, Mr. Figueroa Attempted to Retrieve His Stolen
Vehicle

69.

On the morning of December 2, 2015, an officer from the SFPD left Mr. Figueroa

15
16
17

a voicemail. His niece listened to the voicemail. She informed him that it said his vehicle had

18

been found and towed to an AutoReturn impound lot (located at 450 7th Street), and the SFPD

19

officer instructed Mr. Figueroa to go there to retrieve it.

20

70.

Following the SFPD officer’s instructions, at or around 6:00 p.m. on December 2,

21

2015, Mr. Figueroa and Mrs. Cortes travelled to the impound lot to retrieve Mr. Figueroa’s

22

vehicle.

23

71.

When they arrived at the impound lot, the lot attendant explained to Mr. Figueroa

24

and Mrs. Cortes that, before he could retrieve his vehicle, Mr. Figueroa needed a “vehicle release

25

form” from the SFPD.

26

72.

The lot attendant directed Mr. Figueroa to the SFPD’s Southern Station located at

27

1251 3rd Street (“Station” or “Southern Station”) to procure the vehicle release form. Mr.

28

Figueroa and Mrs. Cortes followed the attendant’s directions and went to the Southern Station.

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

12

1

73.

Upon arriving at Southern Station, Mr. Figueroa and Mrs. Cortes entered through

2

the front entrance on 3rd Street into a waiting room area. Mr. Figueroa, along with Mrs. Cortes,

3

approached a female employee of the SFPD, in full uniform, stationed at the front desk behind a

4

glass window. Upon information and belief, that employee was Public Service Agent Nicole

5

Chambers. Mrs. Cortes explained, in obviously limited English, that Mr. Figueroa needed a

6

vehicle release form to retrieve his car from the AutoReturn lot. Without summoning a Spanish-

7

speaking officer, Defendant Chambers asked Mr. Figueroa in English for his driver’s license, and

8

then told him and Mrs. Cortes to sit and wait. After Mrs. Cortes communicated to Mr. Figueroa

9

in Spanish what Defendant Chambers wanted, Mr. Figueroa provided the officer with his

10

Salvadoran identification card. Mr. Figueroa and Mrs. Cortes then sat down in the waiting area

11

and waited for Defendant Chambers to return with the completed vehicle release form.

12

74.

Upon information and belief, from this initial interaction forward, Defendant

13

Chambers, and in turn the SFPD, identified or should have identified Mr. Figueroa and Mrs.

14

Cortes as “limited English proficient (“LEP”) persons.”

15

75.

DGO 5.20 requires that “[w]hen performing law enforcement functions, [SFPD]

16

members shall provide free language assistance to LEP individuals whom they encounter . . . .”

17

The procedures to accomplish this policy include identifying the “primary language” and then

18

providing the LEP individual access to a “qualified bilingual member [of the SFPD]” competent

19

in the LEP individual’s primary language.

20
21
22

76.

Upon information and belief, at least one qualified bilingual member of the SFPD

competent in Spanish was present at Southern Station on December 2, 2015.
77.

Upon information and belief, at some time after Mr. Figueroa and Mrs. Cortes

23

spoke with Defendant Chambers, Defendants Balmy and Chambers identified Mr. Figueroa “as a

24

wanted suspect”—solely and wrongfully based on the suspicion that Mr. Figueroa was

25

unlawfully present in the United States.

26

78.

Defendants Balmy and Chambers then informed Defendant Clifford that Mr.

27

Figueroa was a “possible wanted suspect.” Upon information and belief, Defendants Chambers

28

and Balmy did not provide Defendant Clifford with any reasonable or articulable facts to support

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

13

1

their accusation that Mr. Figueroa was a “possible wanted suspect.” Without any further

2

investigation into the matter, nor the presence of exigent circumstances, Defendants Balmy and

3

Clifford decided to unlawfully arrest and detain Mr. Figueroa.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

D.

Defendants Balmy and Clifford Unlawfully Arrested Mr. Figueroa

79.

At one point, while waiting in the lobby of Southern Station, Mr. Figueroa walked

out of Southern Station’s main entrance to look for a trash can and throw away some trash. As
he did so, two SFPD officers followed him outside and proceeded to track him before he
reentered Southern Station and sat back down.
80.

Soon after Mr. Figueroa reentered Southern Station, Defendants Balmy and

Clifford approached Mr. Figueroa where he sat. Without probable cause or a reasonable,
articulable suspicion that Mr. Figueroa had engaged in, or was going to engage in any criminal
activity, Defendant Clifford stood in front of Mr. Figueroa—who had his back against a wall—
and demanded in English that he stand up because he was under arrest.
81.

Mr. Figueroa quickly complied with Defendant Clifford’s instructions to stand up,

but he did not fully comprehend what was going on because of his limited English proficiency.
82.

Immediately after standing up, Defendant Clifford handcuffed Mr. Figueroa.

Upon information and belief, Defendant Clifford then double-locked the handcuffs on Mr.
Figueroa and checked them for tightness.
83.

Then, along with Defendant Balmy, Defendant Clifford began to escort

Mr. Figueroa out of the waiting area and into the Southern Station’s booking area.
84.

Mrs. Cortes, in shock from the sudden arrest of her fiancé and the father of her

child, but also knowing that Mr. Figueroa did not speak English, asked Defendants Balmy and
Clifford, as best as she could in her limited English, why Mr. Figueroa was under arrest.
85.

Upon information and belief, Defendant Clifford stated words to the effect that

they needed to figure out if he (Mr. Figueroa) was who they were looking for.
86.

Mr. Figueroa was never read any of his Miranda rights or advised of any right to

counsel.

28
ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

14

1

87.

Upon information and belief, Defendants Balmy and Clifford, acting in their

2

official capacities, made the decision to arrest Mr. Figueroa on the basis of his outstanding civil

3

immigration warrant and/or his race and/or national origin.

4

88.

While being led to the booking area, Mr. Figueroa never communicated or

5

attempted to communicate with Defendants Balmy and Clifford because Mr. Figueroa cannot

6

speak or understand English. Nonetheless, it was apparent that Mr. Figueroa was of limited

7

English proficiency, and no qualified Spanish-speaking officer was summoned to explain to Mr.

8

Figueroa what was happening to him.

9

89.

Mr. Figueroa was led through closed doors into another area. Upon information

10

and belief, this was Southern Station’s booking area, where there was a bench and two other

11

doors. One door was marked “exit” and the other door was unmarked.

12

90.

Once they reached the booking area, Defendants Balmy and Clifford, without

13

communicating their reason for doing so, conducted a pat-down search of Mr. Figueroa. All of

14

Mr. Figueroa’s belongings were removed and passed through a small window to another SFPD

15

officer.

16
17
18
19
20

91.

Without communicating their reason for doing so, Defendants Balmy and Clifford

also fingerprinted Mr. Figueroa.
92.

Mr. Figueroa was then led to the bench. Defendants Balmy and Clifford then

handcuffed Mr. Figueroa to the bench and left him there.
93.

At one point, another SFPD officer entered and asked Mr. Figueroa in English to

21

sign some documents, which were also only in English. Now fearful of cooperating with the

22

SFPD, Mr. Figueroa refused to sign because he did not understand what the documents said.

23

The officer left and, within a few minutes, a Spanish-speaking SFPD officer arrived and

24

explained to Mr. Figueroa that the documents were related to his personal property. Mr.

25

Figueroa signed the documents, and the Spanish-speaking officer exited and never returned.

26

94.

Mr. Figueroa was never offered language assistance prior to this point. Nor was

27

he subsequently offered language assistance, despite the obviousness of Mr. Figueroa’s limited

28

English proficiency.

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

15

1

95.

No SFPD officer provided any justification for Mr. Figueroa’s arrest that would

2

support an inference of reasonable suspicion or probable cause that Mr. Figueroa had engaged in,

3

was engaged in, or was about to engage in any criminal activity.

4
5
6

96.

Further, during the entirety of Mr. Figueroa’s arrest or detention, no SFPD officer

asked Mr. Figueroa any questions related to whether he was who they were looking for.
E.

With Mr. Figueroa in Custody, the SFPD Conducted a Warrant Check
Against the NCIC Database and Discovered That Mr. Figueroa Had an
Outstanding Civil Immigration Warrant

97.

After Mr. Figueroa was brought into the booking area, upon information and

7
8
9
10
11

belief, Defendant Clifford conducted a warrant check on Mr. Figueroa.
98.

Upon information and belief, one of the databases that the SFPD uses to conduct

12

warrant checks is the National Crime Information Center (“NCIC”) database. NCIC is a

13

nationwide clearinghouse of records operated by the Federal Bureau of Investigation. The NCIC

14

provides direct online access to its computerized index of criminal and immigration-related

15

information for local, state, and federal law enforcement officers, and others nationwide.

16
17
18
19
20
21
22
23
24
25
26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

99.

Upon information and belief, the NCIC database clearly identifies and

distinguishes between civil and criminal warrants.
100.

Civil immigration warrants are not authorized by a judge or based on a finding of

probable cause. Rather, they are signed by immigration enforcement agents.
101.

Upon information and belief, the SFPD and the Sheriff’s Department always rely

on the NCIC database to run frequent warrant checks on individuals.
102.

Upon information and belief, the SFPD and the Sheriff’s Department had

regularly utilized the NCIC database for all of their warrant checks prior to December 2, 2015.
103.

Upon information and belief, when the NCIC database was queried for

Mr. Figueroa, the database revealed an outstanding, non-criminal, civil immigration warrant.
104.

Upon information and belief, the warrant was clearly labeled as an

“administrative warrant” and was clearly distinguishable from a “criminal warrant.”
105.

Upon information and belief, the warrant check did not reveal any felony
COMPLAINT

16

1

convictions, or any other outstanding warrants of any kind, criminal or otherwise, with respect to

2

Mr. Figueroa.

3
4
5

106.

existed, the NCIC database would have reflected them as well.
F.

In Violation of the Sanctuary Ordinance, the SFPD Affirmatively
Communicated with ICE Regarding Mr. Figueroa’s Immigration Status

107.

While Mr. Figueroa sat handcuffed to the bench, the SFPD communicated with

6
7
8
9
10
11

Upon information and belief, if any additional warrants for Mr. Figueroa had

the Sheriff’s Department and ICE regarding Mr. Figueroa’s immigration status.
108.

Defendant Kelly called to confirm the civil immigration warrant with Defendant

Thibeaux of the Sheriff’s Department’s Central Warrant Bureau.
109.

Upon information and belief, Defendant Thibeaux, as a member of the Central

12

Warrant Bureau, understood that Mr. Figueroa’s ICE warrant was a civil warrant, related to Mr.

13

Figueroa’s immigration status, and was not to be enforced.

14

110.

Upon information and belief, using the information provided by Defendant Kelly,

15

Defendant Thibeaux contacted ICE and disseminated information with regard to Mr. Figueroa’s

16

immigration status and other personal, identifying information, and provided the ICE agent with

17

Defendant Kelly’s contact information.

18
19
20

111.

Defendant Kelly also was in contact with ICE. Defendant Kelly provided ICE

with Mr. Figueroa’s current location at Southern Station.
112.

Upon information and belief, Defendants Thibeaux, Clifford, and Kelly are not

21

trained or authorized to enforce civil immigration warrants. In fact, Defendants Thibeaux,

22

Clifford, and Kelly are expressly prohibited under the Sanctuary Ordinance from enforcing

23

immigration laws in this instance.

24

113.

Upon information and belief, at some point after Mr. Figueroa was arrested by

25

SFPD officers, ICE Agent Cepeda contacted Defendant Kelly and informed him that he would

26

respond to Southern Station.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

G.

The SFPD Coordinated with ICE to Transfer Mr. Figueroa Into ICE
Custody
COMPLAINT

17

1

114.

At no time during this ordeal was Mr. Figueroa ever told that the SFPD had

2

discovered an outstanding civil immigration warrant attached to his name, or that the SFPD had

3

affirmatively communicated this to ICE.

4

115.

Rather, upon information and belief, and unbeknownst to Mr. Figueroa, at some

5

point before Mr. Figueroa’s release, ICE Agent Cepeda and another ICE agent arrived at the

6

Southern Station to take custody of Mr. Figueroa. Upon information and belief, Agent Cepeda

7

informed SFPD of his presence at Southern Station, and both Defendants Clifford and Kelly

8

were advised of Agent Cepeda’s presence at Southern Station while Mr. Figueroa was still in

9

SFPD custody.

10

116.

Upon information and belief, the ICE agents were directed by SFPD officers to

11

position themselves near a side exit door (the “Alley Exit”) located in a small dead-end alley that

12

is not readily accessible to the public.

13

117.

Upon information and belief, the ICE agents’ positioning at this side exit—and

14

not the main and commonly used entrance—immediately before Mr. Figueroa was pushed

15

through it, indicates that the transfer of custody was coordinated and in cooperation with the

16

SFPD, and not a coincidental encounter.

17

118.

Upon information and belief, after learning of Agent Cepeda’s arrival, Defendant

18

Kelly advised Defendant Clifford that the SFPD booked prisoners at the County Jail and

19

instructed Defendant Clifford to “release” Mr. Figueroa per Section 849b of the Penal Code and

20

to give him a Certificate of Release. This Certificate of Release was SFPD’s attempt to

21

retroactively downgrade Mr. Figueroa’s arrest to a detention in its paperwork.

22

119.

Shortly before Mr. Figueroa’s so-called release, Defendant Clifford and another

23

SFPD officer entered, un-handcuffed Mr. Figueroa from the bench, stood him up, and then re-

24

handcuffed Mr. Figueroa’s wrists behind his back.

25

120.

Upon information and belief, the other SFPD officer also did not speak Spanish.

26

121.

Defendant Clifford and the other SFPD officer, each standing behind one of Mr.

27

Figueroa’s shoulders, walked Mr. Figueroa down a dark corridor in the booking area towards the

28

unmarked door. This was not the same door through which Mr. Figueroa had entered the

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

18

1
2
3
4

booking area.
122.

A third SFPD officer then approached and in an aggressive and hostile manner

stuffed a piece of paper into Mr. Figueroa’s pants pocket.
123.

When the two SFPD officers and Mr. Figueroa reached the unmarked door, one of

5

the SFPD officers reached forward and around Mr. Figueroa’s body and opened the door a few

6

inches. With the door slightly ajar, the officers pushed Mr. Figueroa partially through the door

7

and then quickly unlocked his handcuffs and handed him a bag that contained his previously

8

seized property.

9
10

124.

As soon as Mr. Figueroa stepped outside, two ICE agents, one standing in a

position originally hidden by the opened door, confronted him.

11

125.

Upon information and belief, one of the ICE agents was Agent Cepeda.

12

126.

Upon information and belief, Defendant Clifford observed ICE agents take

13
14

custody of Mr. Figueroa to ensure the transfer of custody from SFPD to ICE.
127.

Upon information and belief, when an arrestee is released from custody in the

15

booking area at Southern Station, the arrestee is normally led back to the main waiting area and

16

out of the main entrance of the station.

17
18
19
20
21
22
23

128.

Upon information and belief, the SFPD does not normally lead non-immigrant

released detainees or arrestees to the Alley Exit.
129.

The SFPD officers led Mr. Figueroa to the Alley Exit in this instance because the

SFPD had coordinated with ICE to transfer Mr. Figueroa into ICE custody.
130.

The SFPD officers intentionally forced Mr. Figueroa to the Alley Exit to transfer

Mr. Figueroa from SFPD custody to ICE custody.
131.

Upon information and belief, the SFPD also decided to lead Mr. Figueroa to the

24

Alley Exit and not the main entrance to keep the transfer of Mr. Figueroa to ICE custody

25

clandestine and out of the public eye. The Alley Exit was unlit and empty aside from the two

26

ICE agents and their white van.

27

H.

Mr. Figueroa Was Transferred from SFPD Custody to ICE Custody

28

132.

As Mr. Figueroa stepped through the Alley Exit, both ICE agents positioned

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

19

1
2
3
4

themselves in front of him, with the parked van positioned behind them.
133.

Neither of the ICE agents initially identified themselves to Mr. Figueroa, instead

they first asked Mr. Figueroa in Spanish whether he was Pedro Figueroa.
134.

The ICE agents told Mr. Figueroa in Spanish that he was under arrest. The ICE

5

agents then shackled Mr. Figueroa’s hands and feet, took possession of his bag of belongings,

6

and escorted him to the back of their white van a few feet away.

7

135.

Once inside the van, Mr. Figueroa asked one of the ICE agents if he could make a

8

phone call. One of ICE agents reached into the bag holding Mr. Figueroa’s possessions and

9

handed him his own cell phone.

10

136.

Mr. Figueroa called Mrs. Cortes, who answered right away. Mrs. Cortes told

11

Mr. Figueroa that she was at Southern Station, along with their niece and their eight-year-old

12

daughter L.C. Mrs. Cortes had just been told by Defendant Chambers, who was still in the

13

waiting area of Southern Station and was not one of the officers who had “released” Mr.

14

Figueroa, that ICE agents had already taken Mr. Figueroa.

15

137.

Mr. Figueroa explained that he was in the back of a van still at Southern Station.

16

138.

Together, Mrs. Cortes, their daughter, and their niece ran outside the station and

17

found the van. Mr. Figueroa was able to hear from inside the van as his wife pled with the ICE

18

agents not to take Mr. Figueroa away, and as L.C. yelled, “Papi, papi!” and banged on the van

19

doors to try and see her father.

20

I.

Mrs. Cortes Desperately Attempted to Figure Out What Was Happening to
Mr. Figueroa

139.

After Mr. Figueroa was arrested in the waiting area, Mrs. Cortes remained there,

21
22
23

hoping that the incident would resolve itself. After approximately 20 minutes of waiting, Mrs.

24

Cortes asked Defendant Chambers what was happening with Mr. Figueroa.

25
26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

140.

Defendant Chambers explained, in English, that an immigration judge had

ordered Mr. Figueroa arrested.
141.

Because of her limited English proficiency, Mrs. Cortes did not fully understand

Defendant Chambers’ explanation, and, again, at no point did any SFPD officer attempt to
COMPLAINT

20

1
2
3
4

provide her with language assistance to help her understand the situation.
142.

In a panic, Mrs. Cortes left the station and drove home, hoping to find her niece,

who is a native English speaker.
143.

Once at home, Mrs. Cortes found her niece, who was babysitting L.C., and

5

explained to them that Mr. Figueroa had been arrested. Then, they all quickly returned to

6

Southern Station.

7
8

144.

When they arrived at the Southern Station, they ran into the waiting area and

asked Defendant Chambers about Mr. Figueroa’s status and whereabouts.

9

145.

Defendant Chambers told them that ICE had already taken Mr. Figueroa.

10

146.

Shocked and terrified that their fiancé, father, and uncle, was gone, all three ran

11
12

out of the station waiting area.
147.

Simultaneously, Mrs. Cortes received a phone call from Mr. Figueroa as they

13

exited the station. Mr. Figueroa told Mrs. Cortes that he was in a white van and still at the

14

Southern Station.

15

148.

Mrs. Cortes spotted the white van as it was about to leave.

16

149.

Mrs. Cortes and L.C. ran to the van screaming for the ICE agent to stop. Mrs.

17

Cortes asked the ICE agent why they were taking Mr. Figueroa away. He responded that it was

18

because of an immigration warrant for his arrest.

19

150.

Mrs. Cortes and L.C. cried and pleaded with the ICE agent. L.C. asked if she

20

could say goodbye to her dad, but the ICE agent only allowed her to wave goodbye through the

21

window.

22

151.

23

Mr. Figueroa away.

Mrs. Cortes and L.C. were devastated as they watched, in disbelief, as ICE took

24

J.

Mr. Figueroa Remained in ICE Custody for Two Months

25

152.

As a result of being transferred to ICE custody, Mr. Figueroa was forced to spend

26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

Christmas without his family and was separated from his wife and daughter for two months.
153.

Upon being detained by ICE, Mr. Figueroa was transported from the Southern

Station to the Martinez Detention Facility, where he was held until the following morning.
COMPLAINT

21

1
2

Mr. Figueroa was not given his own cell or a space to sleep during this time.
154.

Mr. Figueroa was held in a cell with approximately 35 to 40 other individuals.

3

Individuals were forced to lie on the floor due to the cramped conditions and there was no room

4

to move. The cell only had two bathrooms.

5

155.

On the morning of December 3, 2015, Mr. Figueroa was transported from

6

Martinez to the ICE Field Office in San Francisco. Mr. Figueroa spent the entire day there until

7

being transported back to the Martinez Detention Facility in the evening.

8
9

156.

When Mr. Figueroa returned to Martinez, he was subjected to a search, and forced

to remove his clothes—the same clothes he had been wearing for the past two days— in front of

10

an officer. After being given a uniform to wear, Mr. Figueroa spent the night in Martinez, and

11

then at approximately 4:30 a.m. on December 4, 2015, he was transported to the Contra Costa

12

West County Detention Facility in Richmond.

13
14
15
16
17

157.

Each time Mr. Figueroa was transported from one facility to another, he was

shackled.
158.

While in detention, Mr. Figueroa was afraid to request numerous basic necessities

such as a uniform that actually fit him and additional blankets to stay warm.
159.

While Mr. Figueroa was detained by ICE, his wife’s and daughter’s visits were

18

severely limited—they were only permitted to see him for no more than 30 minutes each visit,

19

and each time they were separated by a glass window.

20

160.

These short, impersonal visits were emotionally distressing, especially because

21

Mr. Figueroa was unable to regularly speak with his family over the phone. Mr. Figueroa was

22

only able to call home during “break time.” Although “break time” happened approximately

23

twice each day, Mr. Figueroa was not guaranteed to have access to a telephone and was often

24

unable to call his family because the line to make phone calls was too long.

25

161.

Mr. Figueroa’s daughter was also severely emotionally distressed by

26

Mr. Figueroa’s detention. On numerous occasions, L.C. would burst into tears, crying

27

uncontrollably out of fear that her father would be removed from the United States and had

28

difficulties at school. Her teacher contacted Mrs. Cortes and suggested that Mrs. Cortes seek a

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

22

1
2

child therapist.
162.

Mrs. Cortes was also severely emotionally distressed by Mr. Figueroa’s detention.

3

She suffered anxiety, worry, humiliation, shame, and fear due to Mr. Figueroa’s detention and

4

his possible removal from the United States.

5

163.

On February 2, 2016, Mr. Figueroa’s bond was set at $2,500. The next day, his

6

bond was paid, and he was released. Mr. Figueroa, who went to the police station on

7

December 2, 2015 thinking he was simply going to obtain a form to recover his stolen car, was

8

detained for two full months.

9

K.

Mr. Figueroa’s Immigration Case Has Been Reopened

10

164.

Upon Mr. Figueroa’s detention on December 2, 2015, ICE sought to effectuate his

11

2005 removal order.

12

165.

Following his arrest and detention, Mr. Figueroa retained an immigration lawyer

13

who filed a motion to reopen Mr. Figueroa’s removal proceedings on the grounds that there was

14

deficient notice of his 2005 removal hearing, and that Mr. Figueroa was seeking asylum. An

15

immigration judge in San Antonio, Texas, reopened Mr. Figueroa’s case on January 13, 2016.

16

166.

While Mr. Figueroa is no longer subject to a final order of removal, deportation

17

remains a possibility at the conclusion of his immigration proceedings. Mr. Figueroa remains

18

anxious and fearful of that possibility. If Mr. Figueroa is deported, he will be permanently

19

separated from his wife and his daughter.

20

L.

Defendants Wrongfully Auctioned Off Mr. Figueroa’s Vehicle

21

167.

A few weeks after Mr. Figueroa’s unlawful arrest and detention by the SFPD,

22

Mrs. Cortes received a phone call from an SFPD officer, who spoke to her in English, regarding

23

Mr. Figueroa’s vehicle. The SFPD officer inquired whether anyone was going to retrieve the

24

vehicle. Mrs. Cortes informed the caller that Mr. Figueroa could not because he was in custody.

25

168.

Mr. Figueroa, as the registered owner, was the only person authorized to retrieve

26

the vehicle. However, he was unable to do so because the SFPD had transferred him to ICE

27

custody, where he remained.

28
ATTORNEYS AT LAW
SAN FRANCISCO

169.

Within a few days of Mr. Figueroa’s release from ICE custody, on or around
COMPLAINT

23

1

February 6, 2016, he and Mrs. Cortes went to check on his vehicle.

2

170.

Mr. Figueroa was informed that his vehicle had been sold on or about December

3

23, 2015. At no time prior to December 23, 2015, was Mr. Figueroa ever notified or informed

4

that his vehicle would be sold. At no time prior to December 23, 2015, was Mrs. Cortes ever

5

notified or informed that the vehicle would be sold. The residence where Mr. Figueroa and Mrs.

6

Cortes resided was the address registered with the vehicle, yet no written notice was ever sent

7

there either.

8

171.

9

At no time did Mr. Figueroa ever provide the SFPD with consent to sell his

vehicle.

10

172.

Mr. Figueroa has never received any money or compensation from the City for

11

the value of his vehicle or his tools that were in the vehicle. Upon information and belief, the

12

City retained some or all of the proceeds from the sale of Mr. Figueroa’s vehicle and the tools

13

stored within.

14

IX.

15
16
17

THE CITY’S RESPONSE AND THE SFPD’S ATTEMPT TO COVER UP ITS
COOPERATION WITH ICE
A.

SFPD Officers and Sheriff’s Department Officials Conspire to Mislead the
Media and Public About Their Cooperation with ICE

173.

After learning of Mr. Figueroa’s unlawful arrest and detention, Mr. Figueroa’s

18

immigration attorneys, and immigrant and civil rights organizations, including Asian Americans

19

Advancing Justice - Asian Law Caucus (“ALC”), held a press conference outside of Southern

20

Station, on January 20, 2016 to publicize Mr. Figueroa’s unlawful treatment.

21

174.

After the press conference concluded, an SFPD spokesperson asked members of

22

the media to come inside Southern Station, promising that the SFPD would make a statement

23

about its treatment of Mr. Figueroa. The spokesperson, however, refused to allow Mr.

24

Figueroa’s immigration counsel and immigrants’ rights advocates, including ALC, into Southern

25

Station to hear the statement.

26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

175.

As was reported by the media, Sergeant Michael Andraychak of the SFPD misled

the media, claiming: “We do not cooperate on immigration matters.”
176.

SFPD Captain Jerry Difilippo also misled reporters on the same day stating that:
COMPLAINT

24

1

“We’re going to confirm a warrant and if it’s not confirmed we’ll release the individual, which is

2

what we did in this case. I think it was out of the norm for an ICE agent to have showed up at

3

the station. I don’t think anyone expected that to happen.”

4

177.

Sheriff’s Department Chief of Staff Eileen Hurst also misled the media, falsely

5

asserting that “[i]n this case, we are talking about a warrant signed by a judge for probable

6

cause.”

7

178.

These statements by SFPD Sergeant Andraychak, SFPD Captain Difilippo, and

8

Sheriff’s Department Chief of Staff Hurst were false. SFPD cooperated with ICE, unlawfully

9

arrested and detained Mr. Figueroa, provided Mr. Figueroa’s exact location at Southern Station

10

to ICE, and the warrant was a non-criminal civil immigration warrant lacking the requisite

11

probable cause. Not only did the SFPD expect ICE to show up at Southern Station, when SFPD

12

officers “released” Mr. Figueroa, they transferred him directly into ICE’s custody at the Alley

13

Exit of Southern Station.

14

179.

These falsehoods were initially uncovered when Mr. Figueroa received ICE’s

15

internal records. These records showed, among other things, that an SFPD officer had contacted

16

ICE directly and informed ICE that Mr. Figueroa was being unlawfully detained at Southern

17

Station.

18

B.

Defendants Acknowledged Their Wrongdoing

19

180.

On February 5, 2016, Mr. Figueroa’s immigration attorneys and immigrants’

20

rights advocates, including ALC, held another press conference in City Hall, during which they

21

released documents disclosing the false statements made by the SFPD. As discussed above, the

22

documents evidenced the cooperation between the SFPD, the Sheriff’s Department, and ICE.

23

181.

In response to the document release, former SFPD Chief of Police Greg Suhr

24

acknowledged that Mr. Figueroa never should have ended up in the custody of federal

25

immigration authorities.

26

C.

The Office Of Citizen Complaints Found that the SFPD Engaged in
Wrongful Conduct

182.

On April 7, 2016, Mr. Figueroa filed a complaint with the Office of Citizen

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

25

1

Complaints (“OCC Complaint”). The OCC Complaint described in detail the events leading up

2

to, during, and after SFPD’s unlawful arrest and detention of Mr. Figueroa and his subsequent

3

arrest by ICE agents.

4

183.

The Addendum to the OCC Complaint listed five claims: (1) the SFPD violated

5

its own departmental policy against (a) detaining individuals based on their immigration status

6

and (b) helping ICE enforce federal immigration laws; (2) the SFPD violated the City’s

7

Sanctuary Ordinance for the same reasons; (3) the SFPD violated department policy in failing to

8

contact a Deputy Chief before engaging in an investigation with the Sheriff’s Department; (4) the

9

SFPD, in failing to provide an interpreter for Mr. Figueroa, violated its language access policy;

10

and (5) the SFPD’s actions, which violated several of its own department policies, resulted in

11

Mr. Figueroa’s unlawful detention and constructive transfer to ICE custody.

12

184.

The OCC Complaint alleged that, as a result of his treatment by the SFPD,

13

Mr. Figueroa suffered severe emotional distress in addition to the loss of his car, wages, and

14

other money that he had to pay to his immigration attorneys.

15

185.

On November 21, 2016, the OCC wrote to Mr. Figueroa regarding his OCC

16

Complaint. The OCC sustained the majority of Mr. Figueroa’s allegations against the SFPD,

17

including that he was detained without justification, handcuffed without cause, that the SFPD

18

neglected its duty in aiding ICE to enforce immigration law, and that SFPD violated its language

19

access policy.

20

D.

The SFPD Internal Investigation

21

186.

The SFPD also has commenced an internal investigation to determine if there was

22
23

any wrongdoing with regard to Mr. Figueroa’s treatment.
E.

The City Denied Any Relief to Mr. Figueroa for Its Wrongful and Unlawful
Conduct

187.

Four months after Mr. Figueroa’s release, on June 2, 2016, Mr. Figueroa filed a

24
25
26

complaint with the City to challenge the unlawful treatment he endured at the hands of the SFPD

27

and the Sheriff’s Department (“City Complaint”).

28
ATTORNEYS AT LAW
SAN FRANCISCO

188.

The City Complaint asserted claims against the SFPD and the Sheriff’s
COMPLAINT

26

1

Department for wrongful arrest, wrongful detention, false imprisonment, violation of Mr.

2

Figueroa’s right to be free from unlawful seizure under the Fourth Amendment, his rights under

3

the California Constitution, and infliction of emotional distress.

4

189.

In addition, the City Complaint alleged that the SFPD, in arresting and detaining

5

Mr. Figueroa without probable cause: (1) violated the City’s Sanctuary Ordinance by assisting in

6

the enforcement of federal immigration law; (2) violated its own departmental policy against

7

detaining individuals based on their immigration status and assisting ICE in enforcing

8

immigration laws; (3) violated its own departmental policy requiring that an interpreter be

9

provided to those with limited English language proficiency skills; and (4) illegally sold off Mr.

10

Figueroa’s car while he was in custody.

11
12

190.
X.

On July 18, 2016, the City denied Mr. Figueroa’s City Complaint in its entirety.

CLAIMS FOR RELIEF

13

FIRST CLAIM FOR RELIEF

14

Fourth Amendment (42 U.S.C. § 1983) ‒ Unreasonable Search and Seizure

15

(Against all Defendants)

16
17
18

191.

Mr. Figueroa incorporates by reference the allegations in the paragraphs above as

though fully set forth here.
192.

Federal law preempts state or local police from enforcing federal civil

19

immigration laws and does not grant local law enforcement officials the authority to make civil

20

immigration arrests beyond narrow circumstances not relevant to Mr. Figueroa’s arrest.

21

193.

There is no agreement under 8 U.S.C. § 1357(g)(1) in place in the City or County

22

of San Francisco, and as such, Defendants, collectively, and each of them, did not have authority

23

to enforce federal immigration law under 8 U.S.C. § 1357(g)(1).

24

194.

At all times Defendants Balmy, Chambers, Clifford, Kelly, and DOES 1 through

25

50 wore full uniforms and acted under the color of state law. At all times Defendant Thibeaux

26

acted under the color of state law.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

195.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1 through 50

had no reasonable, individualized, articulable suspicion that Mr. Figueroa was involved in any
COMPLAINT

27

1
2

unlawful activity.
196.

When Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1

3

through 50 ordered, authorized, or physically placed Mr. Figueroa in handcuffs to prevent him

4

from leaving the premises of Southern Station, they “seized” him because no reasonable person,

5

including Mr. Figueroa, would feel that he or she were free to leave after being handcuffed by

6

two uniformed officers.

7

197.

Mr. Figueroa was not charged or arrested for any violation of a criminal law.

8

198.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1 through 50,

9

collectively, and each of them, seized Mr. Figueroa without the legal authority to do so and in the

10

absence of any exigent circumstances, probable cause, or reason to believe that he had or was

11

engaged in criminal activity.

12

199.

As a direct and proximate result of Defendants Balmy, Chambers, Clifford, Kelly,

13

Thibeaux and DOES 1 through 50’s actions, as alleged above, Defendants, collectively, and each

14

of them, deprived Mr. Figueroa of his constitutional rights under the Fourth Amendment.

15

200.

Upon information and belief, Defendants Balmy, Chambers, Clifford, Kelly,

16

Thibeaux and DOES 1 through 50 are vested by law—or by a “custom or usage” having the

17

force of law—with “final policymaking authority” to effect arrests and/or ratify or sanction

18

arrests made by other officers. Defendants Balmy, Kelly, Clifford, and DOES 1 through 50 were

19

acting as municipal officials with “final policymaking authority” when they effected, ratified, or

20

sanctioned Mr. Figueroa’s arrest.

21

201.

Defendants’ training programs, monitoring, and supervision failed to actually

22

train their officers and employees to handle the frequent, usual, and reoccurring situations where:

23

(1) a NCIC database query reveals a civil immigration warrant; and (2) an individual is suspected

24

of nothing more than a civil immigration violation.

25

202.

Defendants in their official capacities were on actual notice of the City’s failure to

26

train, monitor, and supervise SFPD officers and Sheriff’s Department personnel: (1) to properly

27

read the NCIC database in order to correctly determine which warrants give officers and deputies

28

the legal authority to detain or arrest an individual; and (2) that individuals may not be arrested

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

28

1

or detained based solely on a non-criminal, civil immigration warrant. As such, Defendants were

2

aware that the City’s failure to train, monitor, and supervise SFPD officers and Sheriff’s

3

Department personnel has caused, and is highly likely to cause, officers and deputies to detain or

4

arrest individuals without, respectively, reasonable suspicion or probable cause, and in the

5

absence of exigent circumstances, in violation of the Fourth Amendment of the United States

6

Constitution.

7

203.

Defendants, in their official capacities also knew such a failure to train adequately

8

made it highly predictable that their officers and employees would engage in conduct that would

9

deprive individuals, including Mr. Figueroa, of their Fourth Amendment rights under the United

10

States Constitution.

11

204.

12
13

Defendants’ failure to train adequately is closely related to the deprivation of

Mr. Figueroa’s constitutional rights as to have caused the ultimate injury.
205.

Mr. Figueroa seeks injunctive and declaratory relief against all Defendants in their

14

official capacities, enjoining them from continuing to engage in the above-described policies,

15

practices, and conduct violating Mr. Figueroa’s right to be free from unreasonable searches and

16

seizures under the Fourth Amendment of the United States Constitution including, but not

17

limited to:

18

a.

Detaining individuals without reasonable suspicion of criminal activity;

19

b.

Arresting individuals without probable cause of criminal activity;

20

c.

Detaining or arresting individuals on the basis of a civil immigration

21

warrant without authority to arrest for civil immigration violations;

22

d.

Failing to adequately train, monitor, or supervise the agents, employees, or

23

representatives of the San Francisco Police Department and the San Francisco Sherriff’s

24

Department regarding authority to arrest and detain individuals based on a civil immigration

25

warrant; and

26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

e.

Transferring individuals from SFPD custody to ICE custody, resulting in

ICE detention.
206.

Mr. Figueroa seeks compensatory damages against all Defendants in their official
COMPLAINT

29

1

capacities and compensatory and punitive damages against Defendants Balmy, Chambers,

2

Clifford, Kelly, Thibeaux and DOES 1 through 50 in their individual capacities for violations of

3

Mr. Figueroa’s right to be free from unreasonable searches and seizures under the Fourth

4

Amendment of the United States Constitution according to proof, including but not limited to:

5

a.

Detaining individuals without reasonable suspicion of criminal activity;

6

b.

Arresting individuals without probable cause of criminal activity;

7

c.

Detaining or arresting individuals on the basis of a civil immigration

8

warrant without authority to arrest for civil immigration violations;

9

d.

Failing to train, monitor, or supervise the agents, employees, or

10

representatives of the San Francisco Police Department and the San Francisco Sherriff’s

11

Department regarding authority to arrest and detain individuals based on a civil immigration

12

warrant; and

13
14
15

e.

Transferring individuals from SFPD custody to ICE custody, resulting in

ICE detention.
207.

As a direct and proximate result of Defendants’ conduct, collectively and

16

individually, Mr. Figueroa has been damaged in an amount within the jurisdiction of this Court,

17

according to proof. As a direct and proximate result of Defendants’ actions, collectively and

18

individually, Mr. Figueroa suffered damages, including but not limited to violation of his

19

constitutional rights, loss of liberty, monetary damages, emotional distress, and physical pain and

20

suffering.

21

208.

At all relevant times herein, the actions and omissions of Defendants, and each of

22

them, as set forth above, occurred deliberately, intentionally, knowingly, maliciously, willfully,

23

wantonly, and with conscious and reckless disregard for Mr. Figueroa’s rights, entitling

24

Mr. Figueroa to an award of punitive damages.

25

SECOND CLAIM FOR RELIEF

26

California Constitution, Art. I, § 13 ‒ Unreasonable Search and Seizure

27

(Against all Defendants)

28
ATTORNEYS AT LAW
SAN FRANCISCO

209.

Mr. Figueroa incorporates by reference the allegations in the paragraphs
COMPLAINT

30

1
2

above as though fully set forth here.
210.

Federal law preempts state or local police from enforcing federal civil

3

immigration laws and does not grant local law enforcement officials the authority to make civil

4

immigration arrests beyond narrow circumstances not relevant to Mr. Figueroa’s arrest.

5

211.

There is no agreement under 8 U.S.C. § 1357(g)(1) in place in the City or County

6

of San Francisco, and as such, Defendants, collectively, and each of them, did not have authority

7

to enforce federal immigration law under 8 U.S.C. § 1357(g)(1).

8
9
10
11

212.

At all times Defendants Balmy, Chambers, Clifford, Kelly, and DOES 1 through

50 wore full uniforms and acted under the color of state law. At all times Defendant Thibeaux
acted under the color of state law.
213.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1 through 50

12

had no reasonable, individualized, articulable suspicion that Mr. Figueroa was involved in any

13

unlawful activity.

14

214.

When Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1

15

through 50 ordered, authorized, or physically placed Mr. Figueroa in handcuffs to prevent him

16

from leaving, they “seized” him because no reasonable person, including Mr. Figueroa, would

17

feel that he or she were free to leave after being handcuffed by two uniformed officers.

18

215.

Mr. Figueroa was not charged or arrested for any violation of a criminal law.

19

216.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1 through 50,

20

collectively, and each of them, seized Mr. Figueroa without the legal authority to do so and in the

21

absence of any exigent circumstances, probable cause, or reason to believe that he had or was

22

engaged in criminal activity.

23

217.

As a direct and proximate result of Defendants Balmy, Chambers, Clifford, Kelly,

24

Thibeaux and DOES 1 through 50 actions, as alleged above, Defendants, collectively, and each

25

of them, deprived Mr. Figueroa of his constitutional rights under Article I, Section 13 of the

26

California Constitution.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

218.

Upon information and belief, Defendants Balmy, Chambers, Clifford, Kelly,

Thibeaux and DOES 1 through 50 are vested by law—or by a “custom or usage” having the
COMPLAINT

31

1

force of law—with “final policymaking authority” to effect arrests and/or ratify or sanction

2

arrests made by other officers. Defendants Balmy, Kelly, Clifford, and DOES 1 through 50 were

3

acting as municipal officials with “final policymaking authority” when they effected, ratified, or

4

sanctioned Mr. Figueroa’s arrest.

5

219.

Defendants’ training programs, monitoring, and supervision failed to train their

6

officers and employees to handle the frequent, usual, and reoccurring situations where: (1) a

7

NCIC database query reveals a civil immigration warrant; and (2) an individual is suspected of

8

nothing more than a civil immigration violation.

9

220.

Defendants in their official capacities were on actual notice of the City’s failure to

10

train, monitor, and supervise SFPD officers and Sheriff’s Department personnel: (1) to properly

11

read the NCIC database in order to correctly determine which warrants give officers and deputies

12

the legal authority to detain or arrest an individual; and (2) that individuals may not be arrested

13

or detained based solely on a non-criminal, civil immigration warrant. As such, Defendants were

14

aware that the City’s failure to train, monitor, and supervise SFPD officers and Sheriff’s

15

Department personnel has caused, and is highly likely to cause, officers and deputies to detain or

16

arrest individuals without, respectively, reasonable suspicion or probable cause, and in the

17

absence of exigent circumstances, in violation of Article I, Section 13 of the California

18

Constitution.

19

221.

Defendants, in their official capacities also knew such a failure to train adequately

20

made it highly predictable that their officers and employees would engage in conduct that would

21

deprive individuals, including Mr. Figueroa, of their Article I, Section 13 rights under the

22

California Constitution.

23
24
25

222.

Defendants’ failure to train adequately is closely related to the deprivation of

Mr. Figueroa’s constitutional rights as to have caused the ultimate injury.
223.

Mr. Figueroa seeks injunctive and declaratory relief against all Defendants in their

26

official capacities, enjoining them from continuing to engage in the above-described policies,

27

practices, and conduct violating Mr. Figueroa’s right to be free from unreasonable searches and

28

seizures under Article I, Section 13 of the California Constitution including, but not limited to:

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

32

1

a.

Detaining individuals without reasonable suspicion of criminal activity;

2

b.

Arresting individuals without probable cause of criminal activity;

3

c.

Detaining or arresting individuals on the basis of a civil immigration

4

warrant without authority to arrest for civil immigration violations;

5

d.

Failing to adequately train, monitor, or supervise the agents, employees, or

6

representatives of the San Francisco Police Department and the San Francisco Sherriff’s

7

Department regarding authority to arrest and detain individuals based on a civil immigration

8

warrant; and

9
10
11

e.

Transferring individuals from SFPD custody to ICE custody, resulting in

ICE detention.
224.

Mr. Figueroa seeks compensatory damages against all Defendants in their official

12

capacities and compensatory and punitive damages against Defendants Balmy, Chambers,

13

Clifford, Kelly, Thibeaux and DOES 1 through 50 in their individual capacities for violations of

14

Mr. Figueroa’s right to be free from unreasonable searches and seizures under Article I, Section

15

13 of the California Constitution according to proof, including but not limited to:

16

a.

Detaining individuals without reasonable suspicion of criminal activity;

17

b.

Arresting individuals without probable cause of criminal activity;

18

c.

Detaining or arresting individuals on the basis of a civil immigration

19

warrant without authority to arrest for civil immigration violations;

20

d.

Failing to train, monitor, or supervise the agents, employees, or

21

representatives of the San Francisco Police Department and the San Francisco Sherriff’s

22

Department regarding authority to arrest and detain individuals based on a civil immigration

23

warrant; and

24
25
26

e.

Transferring individuals from SFPD custody to ICE custody, resulting in

ICE detention.
225.

As a direct and proximate result of Defendants’ conduct, collectively and

27

individually, Mr. Figueroa has been damaged in an amount within the jurisdiction of this Court,

28

according to proof. As a direct and proximate result of Defendants’ actions, collectively and

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

33

1

individually, Mr. Figueroa suffered damages, including but not limited to violation of his

2

constitutional rights, loss of liberty, monetary damages, emotional distress, and physical pain and

3

suffering.

4

226.

At all relevant times herein, the actions and omissions of Defendants, and each of

5

them, as set forth above, occurred deliberately, intentionally, knowingly, maliciously, willfully,

6

wantonly, and with conscious and reckless disregard for Mr. Figueroa’s rights, entitling

7

Mr. Figueroa to an award of punitive damages.

8

THIRD CLAIM FOR RELIEF

9

Fourteenth Amendment (42 U.S.C. § 1983) – Due Process

10

(Against all Defendants)

11
12
13

227.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
228.

The Fourteenth Amendment of the United States Constitution guarantees

14

individuals due process of law when the state seeks to deprive that individual of his or her

15

liberty. Due process protects individuals from the arbitrary exercise of power and forbids the

16

infringement of certain fundamental liberty interests.

17

229.

Defendants have an affirmative duty to comply with the Sanctuary Ordinance.

18

230.

Defendants, acting under the color of law, failed to comply with the Sanctuary

19

Ordinance and unlawfully transferred Mr. Figueroa to ICE custody in violation of Mr. Figueroa’s

20

due process rights, as guaranteed by the Fourteenth Amendment of the United States.

21
22
23

231.

As a direct and proximate result of Defendants’ conduct, collectively and

individually, Mr. Figueroa was deprived of his liberty and property.
232.

Mr. Figueroa seeks injunctive and declaratory relief against all Defendants in their

24

official capacities, enjoining them from continuing to engage in the above-described policies,

25

practices, and conduct violating Mr. Figueroa’s rights to due process under the Fourteenth

26

Amendment of the United States Constitution including, but not limited to:

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

a.

Violating section 2 Chapter 12H of the San Francisco Administrative

Code by arresting and detaining an individual, without any lawful authority for purposes of
COMPLAINT

34

1

investigating a federal civil immigration warrant;

2

b.

Violating section 2 Chapter 12H of the San Francisco Administrative

3

Code by contacting, assisting, and cooperating with federal immigration authorities in relation to

4

individuals who do not have a felony conviction;

5
6

c.

Code by detaining an individual for transfer to federal immigration custody; and

7
8
9

Violating section 2 Chapter 12H of the San Francisco Administrative

d.
233.

Transferring Mr. Figueroa to ICE custody.

Mr. Figueroa seeks compensatory damages against all Defendants in their official

capacities and compensatory, incidental, and punitive damages against all Defendants named in

10

their individual capacities for violations of his right to due process under the Fourteenth

11

Amendment of the United States Constitution including, but not limited to:

12

a.

Violating section 2 Chapter 12H of the San Francisco Administrative

13

Code by arresting and detaining an individual, without any lawful authority for purposes of

14

investigating a federal civil immigration warrant;

15

b.

Violating section 2 Chapter 12H of the San Francisco Administrative

16

Code by contacting, assisting, and cooperating with federal immigration authorities in relation to

17

individuals who do not have a felony arrest or conviction;

18
19

c.

Violating section 2 Chapter 12H of the San Francisco Administrative

Code by detaining an individual for transfer to federal immigration custody; and

20

d.

Transferring Mr. Figueroa to ICE custody.

21

FOURTH CLAIM FOR RELIEF

22

California Constitution Art. I, § 7(a) ‒ Due Process

23

(Against all Defendants)

24
25
26

234.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
235.

Article I, Section 7 of the California Constitution guarantees individuals due

27

process of law when the state seeks to deprive that individual of his or her liberty. Due process

28

protects individuals from the arbitrary exercise of power and forbids the infringement of certain

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

35

1

fundamental liberty interests.

2

236.

Defendants have an affirmative duty to comply with the Sanctuary Ordinance.

3

237.

Defendants, acting under the color of law, failed to comply with the Sanctuary

4

Ordinance and unlawfully transferred Mr. Figueroa to ICE custody in violation of Mr. Figueroa’s

5

due process rights, as guaranteed by the Fourteenth Amendment of the United States.

6
7
8

238.

As a direct and proximate result of Defendants’ conduct, collectively and

individually, Mr. Figueroa was deprived of his liberty and property.
239.

Mr. Figueroa seeks injunctive and declaratory relief against all Defendants in their

9

official capacities, enjoining them from continuing to engage in the above-described policies,

10

practices, and conduct violating Mr. Figueroa’s rights to due process under Article I, § 7(a) of

11

the California Constitution including, but not limited to:

12

a.

Violating section 2 Chapter 12H of the San Francisco Administrative

13

Code by arresting and detaining an individual, without any lawful authority for purposes of

14

investigating a federal civil immigration warrant;

15

b.

Violating section 2 Chapter 12H of the San Francisco Administrative

16

Code by contacting, assisting, and cooperating with federal immigration authorities in relation to

17

individuals who do not have a felony conviction;

18
19

c.

Code by detaining an individual for transfer to federal immigration custody; and

20
21

Violating section 2 Chapter 12H of the San Francisco Administrative

d.
240.

Transferring Mr. Figueroa to ICE custody.

Mr. Figueroa seeks compensatory damages against all Defendants in their official

22

capacities and compensatory, incidental, and punitive damages against all Defendants named in

23

their individual capacities, for violations of his rights to due process under Article I, § 7(a) of the

24

California Constitution, but not limited to:

25

a.

Violating section 2 Chapter 12H of the San Francisco Administrative

26

Code by arresting and detaining an individual, without any lawful authority for purposes of

27

investigating a federal civil immigration warrant;

28
ATTORNEYS AT LAW
SAN FRANCISCO

b.

Violating section 2 Chapter 12H of the San Francisco Administrative
COMPLAINT

36

1

Code by contacting, assisting, and cooperating with federal immigration authorities in relation to

2

individuals who do not have a felony arrest or conviction;

3
4

c.

Violating section 2 Chapter 12H of the San Francisco Administrative

Code by detaining an individual for transfer to federal immigration custody; and

5

d.

Transferring Mr. Figueroa to ICE custody.

6

FIFTH CLAIM FOR RELIEF

7

California Civil Code § 52.1 ‒ Violation of Bane Act

8

(Against all Defendants)

9
10

241.

paragraphs as though fully set forth here.

11
12

Mr. Figueroa incorporates by reference each of the allegations in the preceding

242.

The Bane Act protects an individual’s federal and state constitutional, and

statutory rights from being interfered with through threats, intimidation, or coercion.

13

243.

At all relevant times, upon information and belief, Defendants, armed law

14

enforcement officers, wore uniforms and commanded Mr. Figueroa to comply with their

15

requests.

16
17

244.

Mr. Figueroa believed that if he exercised his constitutional rights, the Defendants

would commit violence against him.

18

245.

Mr. Figueroa seeks injunctive and declaratory relief pursuant to California Civil

19

Code § 52.1 against all Defendants enjoining them from continuing to engage in the above-

20

described policies, practices, and conduct interfering with the exercise and enjoyment of Mr.

21

Figueroa’s rights under the United States and California Constitutions, according to proof and

22

including, but not limited to:

23

a.

Depriving Mr. Figueroa of his federal and state constitutional rights by

24

using their authority as law enforcement officers to subject him to an unreasonable search and

25

seizure without probable cause to believe that Mr. Figueroa had committed or was committing a

26

crime, and without reasonable suspicion of criminal activity or that he posed a threat to public

27

safety;

28
ATTORNEYS AT LAW
SAN FRANCISCO

b.

Depriving Mr. Figueroa of his federal and state constitutional rights by
COMPLAINT

37

1

using their law enforcement authority to arrest and handcuff Mr. Figueroa without probable

2

cause to believe that Mr. Figueroa had or was committing a crime;

3

c.

Depriving Mr. Figueroa of his right to be free from false arrest by using

4

their law enforcement authority to handcuff Mr. Figueroa and arrest and detain him without:

5

(i) probable cause to believe that Mr. Figueroa had committed or was committing a crime;

6

(ii) reasonable suspicion of criminal activity or that he posed a threat of safety; and

7

(iii) reasonable cause to believe Mr. Figueroa’s arrest/detention was lawful;

8
9

d.

Depriving Mr. Figueroa of his federal and state constitutional rights to due

process by violating the Sanctuary Ordinance; and

10

e.

Depriving Mr. Figueroa of his federal and state constitutional rights to due

11

process by using their law enforcement authority to prolong his unlawful arrest and detention by

12

preventing him from leaving the police station upon his “release” and instead transferring him to

13

ICE custody.

14

246.

Mr. Figueroa seeks an affirmative injunction requiring Defendant San Francisco

15

(and SFPD) to provide, for purposes of a U-Visa petition, a law enforcement certification form,

16

certifying that Mr. Figueroa was the victim of false imprisonment.

17

247.

Mr. Figueroa seeks compensatory damages against Defendant San Francisco and

18

compensatory, statutory, and treble damages against Defendants Balmy, Chambers, Clifford,

19

Kelly, Thibeaux, and DOES 1 through 50 in their individual capacities for violations of the Bane

20

Act, according to proof and including but not limited to:

21

a.

Depriving Mr. Figueroa of his federal and state constitutional rights by

22

using their authority as law enforcement officers to subject him to an unreasonable search and

23

seizure without probable cause to believe that Mr. Figueroa had committed or was committing a

24

crime, and without reasonable suspicion of criminal activity, or that he posed a threat to public

25

safety;

26

b.

Depriving Mr. Figueroa of his federal and state constitutional rights by

27

using their law enforcement authority to arrest and handcuff Mr. Figueroa without probable

28

cause to believe that Mr. Figueroa had committed or was committing a crime;

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

38

1

c.

Depriving Mr. Figueroa of his right to be free from false arrest by using

2

their law enforcement authority to handcuff Mr. Figueroa and arrest and detain him without:

3

(i) probable cause to believe that Mr. Figueroa had committed or was committing a crime;

4

(ii) reasonable suspicion of criminal activity or that he posed a threat to public safety; and

5

(iii) reasonable cause to believe Mr. Figueroa’s arrest and detention was lawful;

6
7

d.

process by violating the Sanctuary Ordinance; and

8
9

Depriving Mr. Figueroa of his federal and state constitutional rights to due

e.

Depriving Mr. Figueroa of his federal and state constitutional rights to due

process by using their law enforcement authority to prolong his unlawful arrest/detention by

10

preventing him from leaving the police station upon his “release” and instead transferring him to

11

ICE custody.

12

SIXTH CLAIM FOR RELIEF

13

False Imprisonment

14

(Against Defendants San Francisco,

15

Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1-50)

16
17
18

248.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
249.

Pursuant to California Government Code section 815.2, a public entity is liable

19

for injury proximately caused by an act or omission of an employee of the public entity within

20

the scope of his or her employment. All of Defendants’ conduct alleged in this Complaint was

21

undertaken in the course and scope of their employment.

22

250.

Mr. Figueroa seeks compensatory and incidental damages against all Defendants

23

acting in their official capacity, and compensatory and punitive damages against Defendants

24

Balmy, Chambers, Clifford, Kelly, and Thibeaux and DOES 1 through 50 in their individual

25

capacities, for inflicting personal injury on him by subjecting him to false arrest and

26

imprisonment according to proof by acts including, but not limited to: (1) detaining him against

27

his will, in the absence of exigent circumstances, without reasonable suspicion of criminal

28

activity; (2) unreasonably arresting him against his will without probable cause of criminal

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

39

1

activity and without authority; (3) detaining him, handcuffed, at the police station; and (4)

2

transferring custody of him to ICE, which continued to detain him for two months.

3

251.

The wrongful acts of Defendants were done maliciously, oppressively,

4

fraudulently, and in conscious disregard of the rights, safety, and health of Mr. Figueroa and

5

others. Mr. Figueroa is entitled to punitive and exemplary damages in the amount to be

6

ascertained according to proof, which is appropriate to punish or set an example of Defendants

7

and deter such behavior by Defendants and others in the future.

8
9
10

252.

Mr. Figueroa seeks an affirmative injunction requiring Defendant San Francisco

(and SFPD) to provide, for purposes of a U-Visa petition, a law enforcement certification form,
certifying that Mr. Figueroa was the victim of false imprisonment.

11

SEVENTH CLAIM FOR RELIEF

12

Intentional Infliction of Emotional Distress

13

(Against Defendants San Francisco,

14

Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50)

15
16
17

253.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
254.

Defendants engaged in outrageous conduct that goes beyond all possible bounds

18

of decency and is intolerable in a civilized community, by and through conduct including, but

19

not limited to:

20

a.

Arresting and detaining Mr. Figueroa without reasonable suspicion or

21

probable cause, which included patting him down, handcuffing him, and failing to provide an

22

explanation to Mr. Figueroa;

23

b.

Contacting ICE to inform ICE of Mr. Figueroa’s whereabouts and

24

facilitating the transfer of custody of Mr. Figueroa to ICE, which subsequently detained him for

25

two months; and

26

c.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

Failing to provide Mr. Figueroa with an interpreter despite his apparent

limited English proficiency.
255.

As a result of the named Defendants’ outrageous conduct, Mr. Figueroa has and
COMPLAINT

40

1

continues to suffer severe emotional distress, including, but not limited to, anxiety, worry,

2

humiliation, shame, and fear. This includes, but is not limited to: (1) the fear of being removed

3

to his home country; (2) humiliation for being arrested and detained in front of his wife, for

4

being taken away by ICE in front of his daughter and wife, and for spending two months in an

5

ICE detention facility; and (3) anxiety, shock, worry, and shame for being falsely arrested and

6

detained, handcuffed, and patted down without probable cause or reasonable suspicion.

7
8
9

256.

Upon information and belief, the named Defendants’ conduct was intentional and

malicious, and done to cause Mr. Figueroa emotional distress.
257.

Alternatively, the named Defendants acted with reckless disregard to the high

10

likelihood that Mr. Figueroa would suffer emotional distress. The named Defendants knew that

11

emotional distress was the probable result of their conduct; or, Defendants gave little or no

12

thought to the probable effects of their conduct.

13
14
15

258.

Defendants’ outrageous conduct was a substantial factor in causing

Mr. Figueroa’s severe emotional distress.
259.

Mr. Figueroa seeks compensatory damages against Defendants San Francisco,

16

Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50 in their official capacities

17

for their extreme and outrageous conduct and compensatory and punitive damages against the

18

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50 in their

19

individual capacities.

20

260.

The wrongful acts of Defendants were done maliciously, oppressively,

21

fraudulently, and in conscious disregard of the rights, safety, and health of Mr. Figueroa and

22

others. Mr. Figueroa is entitled to punitive and exemplary damages in the amount to be

23

ascertained according to proof, which is appropriate to punish or set an example of Defendants

24

and deter such behavior by Defendants and others in the future.

25

261.

Defendants, in the course of their outrageous conduct, were not exercising their

26

legal rights or protecting their economic interests. Nor was their conduct consistent with

27

community standards. Finally, Defendants did not have a good-faith belief that they had a legal

28

right to engage in such outrageous conduct.

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

41

1

262.

Defendant City and County of San Francisco may be held vicariously liable for

2

the outrageous conduct of Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1

3

through 50 under California Government Code § 815.2(a).

4

EIGHTH CLAIM FOR RELIEF

5

Cal. Evid. Code § 669, S.F. Admin. Code Chpt. 12H ‒ Negligence Per Se

6

(Against Defendants San Francisco,

7

Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1-50)

8
9
10

263.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
264.

Under California Evidentiary Code section 669, the failure of an individual to

11

exercise due care is presumed if he or she violated an ordinance of a public entity; the violation

12

proximately caused injury to the person; the injury resulted from an occurrence of the nature

13

which the ordinance was designed to prevent; and the person suffering the injury was one of the

14

class of persons for whose protection the ordinance was adopted.

15

265.

Mr. Figueroa seeks compensatory damages against Defendant San Francisco, and

16

compensatory and punitive damages against Defendants Balmy, Chambers, Clifford, Kelly,

17

Thibeaux, and DOES 1 through 50 for negligently violating San Francisco Administrative Code

18

Chapter 12H.

19

266.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50

20

violated San Francisco Administrative Code Chapter 12H in the following ways: (1) by

21

unlawfully arresting and detaining Mr. Figueroa on the basis of a civil immigrant warrant; (2) by

22

contacting ICE and providing ICE with information regarding Mr. Figueroa’s location and when

23

they could retrieve him; (3) by transferring custody of Mr. Figueroa over to ICE from SFPD

24

custody; and (4) by identifying Mr. Figueroa wrongfully and unlawfully as a possible “wanted

25

suspect.”

26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

267.

Defendants also exposed Mr. Figueroa to an unreasonable risk of reasonably

foreseeable harm at the hands of ICE, which resulted in Mr. Figueroa’s two-month detention.
268.

The above referenced conduct goes against the explicit purpose of the Sanctuary
COMPLAINT

42

1

Ordinance, which is to protect immigrants and maintain relations with the large immigrant

2

community in San Francisco, by creating a city of refuge.

3

269.

Mr. Figueroa falls within the class of persons the Sanctuary Ordinance was

4

designed to protect. Further, Mr. Figueroa suffered harm for reporting a crime, which is exactly

5

the type of harm the Sanctuary Ordinance is designed to prevent.

6
7
8
9

270.

The conduct of Defendants directly and proximately caused physical, economic,

and emotional harm to Mr. Figueroa.
271.

San Francisco Administrative Code Chapter 12H creates a mandatory duty on the

part of the City and its officials protect immigrants such as Mr. Figueroa. Defendant San

10

Francisco failed to follow its mandatory duty created by San Francisco Administrative Code

11

Chapter 12H when it failed to properly implement and enforce the Sanctuary Ordinance.

12

272.

Defendant City and County of San Francisco may be held vicariously liable for

13

the conduct of Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50

14

under California Government Code section 815.2(a).

15

273.

The wrongful acts of Defendants were done maliciously, oppressively,

16

fraudulently, and in conscious disregard of the rights, safety, and health of Mr. Figueroa and

17

others. Mr. Figueroa is entitled to punitive and exemplary damages in the amount to be

18

ascertained according to proof, which is appropriate to punish or set an example of Defendants

19

and deter such behavior by Defendants and others in the future.

20

NINTH CLAIM FOR RELIEF

21

Negligence

22

(Against Defendants San Francisco,

23

Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1-50)

24
25
26

274.

Mr. Figueroa incorporates by reference the allegations in the paragraphs above, as

though fully set forth here.
275.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50

27

are liable for breaching the standard duty of care owed to Mr. Figueroa by: (1) arresting and

28

detaining him without probable cause or reasonable suspicion, and without explanation, based on

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

43

1

a civil immigration warrant; (2) cooperating with and assisting ICE in enforcing federal

2

immigration laws; (3) transferring Mr. Figueroa directly into ICE custody; and (4) failing to

3

provide him access to a Spanish language interpreter, all in violation of the Sanctuary Ordinance

4

and SFPD language access policies. In light of the Sanctuary Ordinance and SFPD language

5

access policies, Defendants could have reasonably foreseen that their actions would result in

6

harm to Mr. Figueroa.

7

276.

As a direct and proximate result of Defendants’ various negligent acts,

8

Mr. Figueroa suffered injuries including physical and emotional harm and distress, as well as

9

economic harm from the time he was detained by ICE. But for Defendants’ conduct,

10

Mr. Figueroa would not have been falsely arrested, handcuffed, searched, and then transferred to

11

and detained by ICE for two months.

12

277.

Mr. Figueroa seeks compensatory damages against San Francisco. Mr. Figueroa

13

seeks compensatory and punitive damages against Defendants Balmy, Chambers, Clifford,

14

Kelly, Thibeaux, and DOES 1 through 50 for their negligent conduct.

15

278.

Defendant San Francisco may be held vicariously liable for the conduct of

16

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and Does 1 through 50 under

17

California Government Code Section 815.2(a).

18

279.

The wrongful acts of Defendants were done maliciously, oppressively,

19

fraudulently, and in conscious disregard of the rights, safety, and health of Mr. Figueroa and

20

others. Mr. Figueroa is entitled to punitive and exemplary damages in the amount to be

21

ascertained according to proof, which is appropriate to punish or set an example of Defendants

22

and deter such behavior by Defendants and others in the future.

23

TENTH CLAIM FOR RELIEF

24

Negligent Infliction of Emotional Distress

25

(Against Defendants San Francisco,

26

Balmy, Chambers, Clifford, Kelly, Thibeaux and DOES 1-50)

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

280.

Mr. Figueroa incorporates by reference the allegations in the paragraphs above, as

though fully set forth here.
COMPLAINT

44

1

281.

Mr. Figueroa seeks compensatory and punitive damages against Defendants

2

Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50, in their individual and

3

official capacities for their negligent infliction of emotional distress on Mr. Figueroa.

4
5
6

282.

Mr. Figueroa seeks compensatory damages against San Francisco, either on the

basis of direct liability, or vicarious liability.
283.

Defendants not only acted negligently in failing to adhere to the City’s Sanctuary

7

Ordinance, but also exposed Mr. Figueroa to an unreasonable risk of harm through ICE’s

8

reasonably foreseeable decision to arrest Mr. Figueroa after SFPD officers and the Sheriff’s

9

Department contacted ICE to inform them of Mr. Figueroa’s whereabouts.

10

284.

As a result, Mr. Figueroa has suffered serious emotional distress that any ordinary

11

reasonable person in his situation would suffer including, but not limited to, anxiety, worry,

12

humiliation, shame, and fear. This includes, but is not limited to: (1) the fear of being removed

13

to his home country; (2) humiliation for being arrested and detained in front of his wife, for

14

being arrested by ICE in front of his daughter and wife, and for spending two months in an ICE

15

detention facility; and (3) anxiety, shock, worry, fear and shame for being falsely arrested and

16

detained, handcuffed, and patted down without probable cause and reasonable suspicion.

17

285.

Defendants’ negligence was a substantial factor in causing Mr. Figueroa’s serious

18

emotional distress. But for Defendants’ actions, Mr. Figueroa would not have been falsely

19

arrested at the police station, and would not have been detained by ICE.

20

286.

Defendant San Francisco may be held vicariously liable for the conduct of

21

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50 under

22

California Government Code section 815.2(a).

23

287.

The wrongful acts of Defendants were done maliciously, oppressively,

24

fraudulently, and in conscious disregard of the rights, safety, and health of Mr. Figueroa and

25

others. Mr. Figueroa is entitled to punitive and exemplary damages in the amount to be

26

ascertained according to proof, which is appropriate to punish or set an example of Defendants

27

and deter such behavior by Defendants and others in the future.

28
ATTORNEYS AT LAW
SAN FRANCISCO

ELEVENTH CLAIM FOR RELIEF
COMPLAINT

45

1

42 U.S.C. § 1983; 42 U.S.C. § 1985(3) – Conspiracy to Interfere with Civil Rights

2

(Against Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux,

3

and DOES 1 through 50)

4
5
6

288.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
289.

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50

7

conspired by entering into an agreement and mutual understanding, and committing overt acts in

8

furtherance of that agreement, to violate Mr. Figueroa’s constitutional and statutory rights on the

9

basis of his race and/or national origin, including his right to be free from unreasonable searches

10

and seizures and to due process, in violation of 42 U.S.C. § 1985(3), according to proof,

11

including but not limited to the following:

12

a.

Depriving Mr. Figueroa of his federal and state constitutional rights to be

13

free from unreasonable searches and seizures by arresting and detaining him without reasonable

14

suspicion or probable cause;

15

b.

Depriving Mr. Figueroa of his right to be free from false arrest by using

16

their law enforcement authority to handcuff Mr. Figueroa and arrest and detain him without:

17

(i) probable cause to believe that Mr. Figueroa had committed or was committing a crime; (ii)

18

reasonable suspicion of criminal activity or that he posed a threat to public safety; and (iii)

19

reasonable cause to believe Mr. Figueroa’s arrest and detention was lawful;

20
21

c.

Depriving Mr. Figueroa of his federal and state constitutional rights to due

process by violating the Sanctuary Ordinance;

22

d.

Depriving Mr. Figueroa of his federal and state constitutional rights to due

23

process by using their law enforcement authority to prolong his unlawful arrest and detention by

24

preventing him from leaving the police station upon his “release” and instead transferring him to

25

ICE custody;

26

e.

Misleading SFPD spokespersons, a Sheriff’s Department spokesperson,

27

the media, and public as to whether the SFPD did cooperate with ICE regarding Mr. Figueroa’s

28

immigration status and whereabouts; and

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

46

1
2
3

f.

Depriving Mr. Figueroa of access to a Spanish language translator in

violation of language access policies.
290.

As a direct and proximate result of the aforementioned conspiracy, Mr. Figueroa

4

was deprived of his right to be free from unreasonable searches and seizures, and to substantive

5

and procedural due process, as secured by the Fourth and Fourteenth Amendments to the United

6

States Constitution.

7

291.

Mr. Figueroa seeks injunctive and declaratory relief against Defendants Balmy,

8

Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50 in their official capacities,

9

enjoining them from continuing to engage in the above-described conspiracy to violate the

10
11

constitutional and statutory rights of Mr. Figueroa.
292.

Mr. Figueroa seeks compensatory damages and punitive damages against

12

Defendants Balmy, Chambers, Clifford, Kelly, Thibeaux, and DOES 1 through 50 for conspiring

13

to violate his constitutional and statutory rights according to proof, including but not limited to:

14
15

a.
searches and seizures;

16
17

b.

Agreeing to and intentionally denying Mr. Figueroa substantive and

procedural due process; and

18
19

Agreeing to and intentionally subjecting Mr. Figueroa to unreasonable

c.

Agreeing to and intentionally denying Mr. Figueroa access to a Spanish

language translator.

20

TWELFTH CLAIM FOR RELIEF

21

42 U.S.C. § 2000d et. seq. ‒ Title VI

22

(Against Defendant San Francisco)

23
24
25
26
27
28
ATTORNEYS AT LAW
SAN FRANCISCO

293.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
294.

Upon information and belief, San Francisco and the SFPD receive financial

assistance and funding from the United States Government.
295.

As a recipient of federal assistance, the SFPD cannot exclude an individual from

participation in, or the benefits of, any of its program or activities on the basis of that
COMPLAINT

47

1

individual’s national origin. Language-based discrimination is a proxy for national origin

2

discrimination.

3

296.

The SFPD must take reasonable steps to ensure meaningful access to its programs

4

and activities by limited English proficiency (“LEP”) persons. Discriminatory application of a

5

language access policy constitutes a denial of meaningful access to programs and activities.

6

297.

By and through its agents, employees, and representatives—Defendants Balmy,

7

Chambers, Clifford, Kelly, and DOES 1 through 50 acting in their official capacities—San

8

Francisco intentionally refused to follow its own language access policy, failed to provide Mr.

9

Figueroa with a qualified bilingual SFPD member despite numerous objective indications that

10

Mr. Figueroa qualified as an LEP individual, and intentionally discriminated against

11

Mr. Figueroa on account of his national origin by denying him participation in, and the benefits

12

of, a federally-assisted program.

13

298.

The intentional actions of Defendants Balmy, Chambers, Clifford, Kelly, and

14

DOES 1 through 50, directly and proximately caused harm to Mr. Figueroa because those

15

failures made it impossible for Mr. Figueroa to participate in or benefit from the SFPD’s

16

programs and activities.

17

299.

Mr. Figueroa is entitled to compensatory damages from San Francisco because of

18

the unlawful conduct of Defendants Balmy, Chambers, Clifford, Kelly, and DOES 1 through 50,

19

acting in their official capacities.

20

300.

Mr. Figueroa is also entitled to injunctive and declaratory relief against San

21

Francisco, enjoining it from continuing to engage in its discriminatory application of its language

22

access policy on the basis of national origin including, but not limited to, denying the benefits of

23

its language access policy based on an individual’s national origin.

24

THIRTEENTH CLAIM FOR RELIEF

25

California Government Code § 11135 and Its Implementing Regulations

26

(Against Defendant San Francisco)

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

301.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.
COMPLAINT

48

1

302.

California Government Code section 11135 provides, in relevant part: “No person

2

in the State of California shall, on the basis of race, national origin, ethnic group identification . .

3

. , be unlawfully denied full and equal access to the benefits of, and be unlawfully subjected to

4

discrimination under, any program or activity that . . . receives any financial assistance from the

5

state.”

6

303.

California Code of Regulations section 98101(a) prohibits a recipient of state

7

funding from denying “a person the opportunity to participate in, or benefit from an aid, benefit,

8

or service” on the basis of “ethnic group identification,” and sections 98101(i)(1) and (2) prohibit

9

a recipient of state funding from utilizing criteria or methods of administration which have the

10
11

effect of discriminating against protected groups.
304.

Upon information and belief, the SFPD receives financial assistance and funding

12

from the State of California, thus subjecting it to the prohibitions of California Government Code

13

Section 11135.

14

305.

By and through its agents, employees, and representatives—Defendants Balmy,

15

Chambers, Clifford, Kelly, and DOES 1 through 50 acting in their official capacities—San

16

Francisco and the SFPD intentionally refused to administer its own language access policy and

17

provide Mr. Figueroa with a qualified bilingual SFPD member despite numerous objective

18

indications that Mr. Figueroa qualified as an LEP individual, thereby discriminating against Mr.

19

Figueroa on account of his national original or ethnic group identification by denying him

20

participation in, and the benefits of, a state funded program or activity.

21

306.

Defendants Balmy, Chambers, Clifford, Kelly, and DOES 1 through 50

22

repeatedly decided not to provide Mr. Figueroa with language assistance, thereby discriminating

23

against Mr. Figueroa on account of his national origin or ethnic group identification.

24
25
26

307.

Mr. Figueroa is entitled to compensatory damages against San Francisco and the

SFPD because of the unlawful conduct of denying Mr. Figueroa a Spanish-speaking interpreter.
308.

Mr. Figueroa is also entitled to injunctive and declaratory relief against San

27

Francisco and the SFPD, enjoining it from continuing to engage in its discriminatory application

28

of its language access policy on the basis of national origin or ethnic group identification

ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

49

1

including, but not limited to, denying the benefits of its language access policy based on an

2

individual’s national origin.

3

FOURTEENTH CLAIM FOR RELIEF

4

UNJUST ENRICHMENT/QUASI-CONTRACT

5

(Against Defendants San Francisco and DOES 1-50)

6
7

309.

Mr. Figueroa incorporates by reference each of the allegations in the preceding

paragraphs as though fully set forth here.

8

310.

By unlawfully detaining Mr. Figueroa and cooperating with federal immigration

9

authorities, San Francisco wrongfully prevented Mr. Figueroa from reclaiming his vehicle and

10

then received improper benefits that it otherwise would not have obtained including proceeds

11

from the sale of Mr. Figueroa’s vehicle.

12

311.

Retention of the benefits would be unjust and inequitable because Defendants

13

voluntarily accepted and retained the proceeds from the sale of Mr. Figueroa’s vehicle, with full

14

knowledge and awareness that the proceeds were only obtained as a result of its own

15

wrongdoing.

16

312.

In consequence of the acts set forth in this claim, Defendant San Francisco has

17

been unjustly enriched at the expense of Mr. Figueroa. Mr. Figueroa is entitled to San

18

Francisco’s unjust enrichment and disgorgement of the proceeds as restitution.

19

XI.

PRAYER FOR RELIEF

20

WHEREFORE, Mr. Figueroa prays that the Court:

21

1.

Issue a permanent injunction against San Francisco prohibiting its officers, agents,

22

successors, employees, representatives, and any and all persons acting in concert

23

with San Francisco from:

24

a.

25
26

activity or probable cause based solely on a civil immigration warrant;
b.

27
28
ATTORNEYS AT LAW
SAN FRANCISCO

Detaining and arresting persons without reasonable suspicion of criminal

Denying language access services to individuals who are limited English
proficient;

c.

Assisting or cooperating with federal immigration authorities unless
COMPLAINT

50

1

otherwise required by federal or state law; and

2
3

d.
2.

Any practices that facilitate the above conduct.

Issue a permanent injunction against Defendants Balmy, Chambers, Clifford,

4

Kelly, Thibeaux, and DOES 1-50 prohibiting them from:

5

a.

6

activity or probable cause based solely on a civil immigration warrant;

7

b.

8

Denying language access services to individuals who are limited English
proficient;

9

c.

10

Assisting or cooperating with federal immigration authorities unless
otherwise required by federal or state law; and

11
12

Detaining and arresting persons without reasonable suspicion of criminal

d.
3.

Any practices that facilitate the above conduct.

Issue an injunction against San Francisco and the SFPD requiring them to provide

13

a U-Visa I-918 Supp B certification that Mr. Figueroa was the victim of false

14

imprisonment.

15

4.

Issue declaratory relief finding that Defendants’ actions as alleged in this

16

Complaint violate the Fourth and Fourteenth Amendments of the United States

17

Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 2000d, 42 U.S.C. § 1985(3), Article

18

I, Sections 7 and 13 of the California Constitution, California Civil Code § 52.1,

19

and California Government Code § 11135 and its implementing regulations.

20

5.

21

Award Mr. Figueroa nominal, compensatory, incidental, special, statutory, and
punitive damages.

22

6.

Award Mr. Figueroa restitution.

23

7.

Award pre-judgment and post-judgment interest to the extent permitted by law.

24

8.

Award Mr. Figueroa his costs and expenses, including reasonable attorneys’ fees

25

under 42 U.S.C. § 1988 and the Equal Access to Justice Act, 5 U.S.C. § 504, 28

26

U.S.C. § 2412.

27

9. Award such other and further relief as the Court may deem just and proper.

28
ATTORNEYS AT LAW
SAN FRANCISCO

COMPLAINT

51

1 XII.

DEMAND FOR JURY TRIAL

2

In accordance with Federal Rule of Civil Procedure 38(b ), and Northern District Local

3

Rule 3-6(a), Plaintiff hereby demands a jury trial on all issues triable b

4

Dated: January 17,2017

5
6
7
8
9
10
11

12
13
14

Y=-~~~----------------Belinda S Lee
Nicholas Y. Lin
Diana A. Aguilar (Bar No. 304427)
Diana. Aguilar@ lw .com
Mona M. Williams (Bar No. 304540)
Mona. Williams@ lw .com
Jennifer J. Matystik (Bar No. 293306)
J ennifer.Matystik@ lw .com
Max G. Mazzelli (Bar No. 301415)
Max.Mazzelli@ lw .com
Alexandra B. Plutshack (Bar No. 313690)
Alexandra.Plutshack@ lw .com
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: [phone]
Facsimile: + 1.415.395.8095

15
16
17
18
19

Angela F. Chan
Saira A. Hussain
Winifred V. Kao
ADVANCING JUSTICE- ASIAN LAW
CAUCUS
55 Columbus Ave
San Francisco, California 94111-6538
Telephone: [phone]
Facsimile: +1.415.896.1702

20
21

Attorneys for Plaintiff Pedro Figueroa Zarceno

22
23
24
25
26
27
28
COMPLAINT

LATHAM&WATKINS "'
ATTORNEYS AT lAW
SAN fRANCISCO

52