City & Cnty. of S.F. v. Sessions, Case No. 17-cv-04642-WHO

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 349 F.Supp.3d 924
• Docket Number: Case No. 17-cv-04701-WHO,Case No. 17-cv-04642-WHO
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, v. Jefferson Beauregard SESSIONS, et al., Defendants. State of California, ex rel. Xavier Becerra, in His Official Capacity as Attorney General of the State of California, Plaintiff, v. Jefferson Beauregard Sessions, et al., Defendants.
• Decision Date: 05 October 2018

349 F.Supp.3d 924

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff,
v.
Jefferson Beauregard SESSIONS, et al., Defendants.

State of California, ex rel. Xavier Becerra, in His Official Capacity as Attorney General of the State of California, Plaintiff,
v.
Jefferson Beauregard Sessions, et al., Defendants.

Case No. 17-cv-04642-WHO
Case No. 17-cv-04701-WHO

United States District Court, N.D. California.

Signed October 5, 2018

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Mollie M. Lee, Aileen Marie McGrath, Tara M. Steeley, Christine Van Aken, Ronald P. Flynn, Sara Jennifer Eisenberg, Yvonne Rosil Mere, Dennis J. Herrera, Office of the City Attorney of San Francisco, San Francisco, CA, for Plaintiff.

W. Scott Simpson, U.S. Department of Justice, Springfield, IL, Daniel D. Mauler, U.S. Department of Justice, Washington, DC, for Defendants.

Re: Dkt. Nos. 99, 109, 111, 113, 128, 133, 135, 136, 137, 138

Re: Dkt. Nos. 116, 118, 123, 124, 129, 130, 132

ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

William H. Orrick, United States District Judge

INTRODUCTION

In fiscal year 2017, defendants Attorney General Jefferson Beauregard Sessions III and the Department of Justice (collectively, the "DOJ") announced that applicants for federal grants under the Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") program would need to satisfy three new conditions for funding directed at state and local governments that have adopted so-called "sanctuary city" statutes and ordinances. The conditions require that grant recipients (i) provide the Department of Homeland Security's Immigration and Customs Enforcement agency ("ICE") access to their correctional facilities for immigration enforcement purposes, (ii) provide notice to ICE of the release date for detainees, and (iii) certify their compliance with 8 U.S.C. § 1373, a statute which prohibits state and local governments from restricting information-sharing

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with the Department of Homeland Security.

These new conditions have sparked litigation around the country. See, e.g. , City of Philadelphia v. Sessions , Case No. 17–cv–03894; City of Chicago v. Sessions , Case No. 17–cv–05720; United States v. California , Case No. 18–cv–490–JAM; City of Los Angeles v. Sessions , Case No. 17–cv–07215–R. In the two separate, related actions captioned above, the State of California and the City and County of San Francisco challenge the conditions requiring access, notice and compliance with Section 1373, as well as the constitutionality of Section 1373.

DOJ has lost each time these issues have been raised thus far. It continues to withhold grant funding to six states and several local jurisdictions, including California and San Francisco, which it believes do not comply with the Byrne JAG program conditions for fiscal year 2017. California requests that I enjoin DOJ from imposing the conditions, award the State the grants for which it is eligible, and declare that certain California laws identified by the State comply with the Section 1373. Alternatively, it seeks declaratory judgment finding Section 1373 unconstitutional on its face. Similarly, San Francisco requests that I enjoin enforcement of the conditions, issue declaratory judgment that San Francisco's sanctuary city laws comply with Section 1373, and issue an injunction restraining the DOJ from withholding Byrne JAG funding to San Francisco because of Section 1373. Both ask that the scope of the injunction be nationwide. DOJ responds with its own motions for summary judgment, essentially urging that I reject the requests of California and San Francisco.

In agreement with every court that has looked at these issues, I find that: the challenged conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney General exceeds the Spending Power in violation of the United States Constitution by imposing the challenged conditions; the challenged conditions are arbitrary and capricious; California's and San Francisco's laws comply with Section 1373 as construed in this Order; California is deserving of the mandamus relief it seeks; and both parties are entitled to a permanent injunction. Because the requisites for a nationwide injunction are met as a result of the unconstitutionality of Section 1373 and the uniform effect of DOJ's conditions on Byrne JAG grantees around the country, I will follow the lead of the district court in City of Chicago and issue a nationwide injunction but stay its nationwide effect until the Ninth Circuit is able to address it in the normal course on appeal.

BACKGROUND

I. FACTUAL BACKGROUND

A. Section 1373 of the Immigration and Nationality Act

The Immigration and Nationality Act ("INA") granted the Executive Branch, through its Department of Homeland Security ("DHS"), DOJ, and other agencies, "broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States , 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). The INA allows the Attorney General or Secretary of Homeland Security to order the removal of certain classes of immigrants from the United States. See 8 U.S.C. §§ 1227(a), 1228. The Attorney General is directed to take certain detainees into custody pending removal proceedings once they are released from state or local custody. See 8 U.S.C. § 1226(c)(1). To enforce the immigration laws, Executive Branch agencies exercise independent

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discretion; the INA also gives agencies tools to encourage cooperation with state and local offices to support federal policy objectives. See, e.g. , 8 U.S.C. § 1357(g) (authorizing state and local officers to perform functions of a federal immigration officer); 8 U.S.C. § 1324(c) (authorizing state and local officers to make arrests for INA violations); 8 U.S.C. § 1252c (authorizing state and local officers to make arrests for unlawful reentry); Homan Decl. ¶ 36 (SF Dkt. No. 113-2) (discussing Immigration and Customs Enforcement's cooperation with state and local officers to provide uniformed presence in support of enforcement efforts).

Relevant to the present motions for summary judgment, 8 U.S.C. § 1373 prohibits restricting the communication of certain information between federal, state, and local governments. It states:

(a) In General. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional Authority of Government Entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to respond to inquiries. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

8 U.S.C. § 1373.

B. The Office of Justice Programs and the Byrne JAG Program

The Office of Justice Programs ("OJP") was established with the passage of Title I of the Omnibus Crime Control and Safe Streets Act of 1968 and is managed by an Assistant Attorney General. See Pub. L. No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. § 10101, et seq. The same statute created the precursor to the Byrne JAG program; the program's current iteration was established through the Violence Against Women and Department of Justice Reauthorization Act of 2005. See Pub L. No. 109-162, 119 Stat. 2960 (2006) ; see also 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750 ).

Under the Byrne JAG program, the Attorney General makes grants to state and local governments through the Bureau of Justice Assistance Grant Programs, a component of the OJP. See 34 U.S.C. § 10152. The grants support law enforcement efforts by providing additional personnel, equipment, supplies, training, and other assistance to applicants. Id. The Byrne JAG program is a formula grant program, meaning that it awards funding to all grantees by a statutorily prescribed formula. See 34 U.S.C. § 10156(d)(2)(A) (stating

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that "the Attorney General shall allocate to each unit of local government" funds determined by the established formula). Grant funding derives from a state's population and...