City of Chi. v. Barr, Case No. 18 C 6859

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtJudge Harry D. Leinenweber
PartiesTHE CITY OF CHICAGO, Plaintiff, v. WILLIAM P. BARR, in his official capacity as the Attorney General of the United States, Defendant.
Decision Date19 September 2019
Docket NumberCase No. 18 C 6859

THE CITY OF CHICAGO, Plaintiff,
v.
WILLIAM P. BARR, in his official capacity as the Attorney General of the United States, Defendant.

Case No. 18 C 6859

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

September 19, 2019


Judge Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

This litigation concerns the Executive Branch's ability to attach conditions to money it offers to state and local governments. In this case—the latest chapter of a dispute playing out in district and appellate courts around the country—the City of Chicago takes issue with the conditions that the U.S. Attorney General placed on the FY 2018 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") Program. The City contends that certain conditions attached to Byrne JAG funds violate the constitutional requirements of federalism and the separation of powers. For the reasons stated herein, Defendant's Motion to Dismiss (Dkt. No. 42) is granted in part and denied in part. Plaintiff's Motion for Summary Judgment (Dkt. No. 48) is granted in part and denied in part.

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I. BACKGROUND

In addition to describing the most relevant facts here, the Court incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018).

The Byrne JAG program is the primary source of federal criminal justice funding available to state and local governments. (Def.'s Resp. to Pl.'s Stmt. of Facts ("PSOF") ¶ 11, Dkt. No. 62.) This program is overseen by the Office of Justice Programs (OJP) within the U.S. Department of Justice (DOJ). (PSOF ¶ 11.) The Byrne JAG program distributes funds by a statutorily-defined formula based on a state's population and the number of violent crimes reported within that jurisdiction in the past year. See 34 U.S.C. § 10156. To receive Byrne JAG funds, a state or local government must apply and comply with all conditions outlined in the Solicitation document that the Attorney General provides. See 34 U.S.C. § 10153.

Chicago has received Byrne JAG funds every year since 2005. (PSOF ¶ 12.) But in 2017 the City ran into trouble when it came time to apply for and accept Byrne JAG funds. The Attorney General attached several new immigration-related conditions to the FY 2017 funds that conflicted with Chicago's stated policy goals of promoting cooperation between local law enforcement and immigrant communities and ensuring access to essential city services for all

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city residents regardless of citizenship status. Therefore, in August of 2017, the City sued the Attorney General (then Jefferson Sessions) to enjoin his office from attaching those conditions to the FY 2017 Byrne JAG funds. See City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.).

In the 2017 case, Chicago challenged three conditions that the Court will explain in detail later and will refer to as the "notice, access, and Section 1373 compliance conditions." In September of 2017, this Court issued a nationwide preliminary injunction as to the notice and access conditions. See City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017). The Court denied the Attorney General's request to stay the nationwide application of the preliminary injunction. See City of Chicago v. Sessions, No. 17-cv-5720, 2017 WL 4572208 (N.D. Ill. Oct. 13, 2017). The Seventh Circuit affirmed the Court's decision to grant the preliminary injunction, but later decided to take up the limited issue of the injunction's nationwide scope en banc. See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (affirming the preliminary injunction), reh'g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018) (granting en banc review as to the issue of whether a nationwide injunction was proper).

Then, in July 2018, this Court granted partial summary judgment for the City. See City of Chicago v. Sessions, 321 F.

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Supp. 3d 855 (N.D. Ill. 2018). The Court held the notice and access conditions unconstitutional because neither the Byrne JAG statute nor any other federal law gave the Attorney General statutory authority to impose them. Id. at 873-74. The Court further found that 8 U.S.C. § 1373 is unconstitutional as it violates the anticommandeering doctrine, and that therefore the Section 1373 compliance condition is unlawful because the Attorney General cannot demand compliance with an unconstitutional law. Id. at 875-76. The Court entered a permanent nationwide injunction preventing the Attorney General from attaching the three aforementioned conditions to the FY 2017 Byrne JAG funds. Id. at 881; Final Judgment and Order, Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), Dkt. No. 211. However, as the Seventh Circuit had at the time stayed the nationwide scope of the preliminary injunction pending an en banc rehearing, this Court stayed the nationwide scope of the permanent injunction in the same fashion. See City of Chicago, 321 F. Supp. 3d at 881-82. However, the Seventh Circuit vacated the en banc hearing after this Court issued its permanent injunction, as by that point the preliminary injunction "ha[d] all but evaporated." City of Chicago, 2018 WL 4268814, at *2. Thus, the permanent injunction regarding the notice, access, and Section 1373 compliance conditions currently applies only to the FY 2017 funds and Chicago. See Final Judgment and Order. The Court's 2018

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summary judgment opinion is on appeal before the Seventh Circuit. See City of Chicago v. William Barr, No. 18-2885 (7th Cir.).

The Attorney General began issuing FY 2018 Byrne JAG funds in October of 2018. (PSOF ¶ 34.) Chicago filed this suit on October 12, 2018, seeking to enjoin the Attorney General from again imposing certain immigration-related conditions on the FY 2018 funds. On November 20, 2018, DOJ notified Chicago that OJP had awarded the City $2,268,856 for its FY 2018 Byrne JAG award. (PSOF ¶ 35.) However, as before, to accept the money, Chicago had to agree to a variety of conditions. (See Chicago FY 2018 Byrne JAG Award, Ex. C to Def.'s Request for Judicial Notice ("RJN"), Dkt. No. 44-1.)

Several funding conditions are at issue in this case. Some this Court has already ruled upon, and others are new. The first four conditions, which have already been before this Court and therefore will be referred to as the "repeat conditions," are as follows:

1. The notice condition. This condition requires the State or local government to "provide—as early as practicable... —advance notice to [the Department of Homeland Security (DHS)] of the scheduled release date and time for a particular alien, if a State or local government (or government-contracted) correctional facility receives from DHS a formal written request pursuant to the INA that seeks such advance notice." (Chicago FY 2018 Byrne JAG Award ¶ 46.)

2. The access condition. This condition requires the State or local government to permit federal government agents "access to any State or local government (or

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government-contracted) correctional facility by such agents for the purpose" of "interrogat[ing] any alien or person believed to be an alien as to his [or her] right to be or to remain in the United States." (Id. ¶ 45.)

3. The Section 1373 compliance condition. This condition requires the Chief Legal Officer of the recipient jurisdiction to certify that the "program or activity" funded under the Byrne JAG award complies with 8 U.S.C. §§ 1373 (a) and (b). (Id. ¶¶ 41-43.) 8 U.S.C. § 1373 provides: "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." 8 U.S.C. § 1373.

4. The Section 1644 compliance condition. This condition requires the Chief Legal Officer to certify that the "program or activity" funded under the Byrne JAG award complies with 8 U.S.C. § 1644. (Chicago FY 2018 Byrne JAG Award ¶¶ 41-43.) 8 U.S.C. § 1644 provides: "Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States." 8 U.S.C. § 1644.

On November 2, 2018, DOJ announced that, "at this time" it would not "use or enforce" the repeat conditions against Chicago, because these conditions were the subject of pending litigation. (See FY 2017 and FY 2018 JAG Award Special Notices at 2, Ex. D to Def.'s RJN.) However, DOJ reserved the right to enforce the repeat conditions against Chicago in the future if "the posture of the pending litigation changes (or if the pending litigation is

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resolved) in a manner such that DOJ decides to use or enforce any or all of [the repeat conditions.]" (Id.)

There are also two new conditions attached to the FY 2018 grants that are at issue in this case:

1. The harboring condition. This condition prohibits the recipient jurisdiction from making any "public disclosure... of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12—without regard to whether such disclosure would constitute (or could form a predicate for) a violation of 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a)." (Chicago FY 2018 Byrne JAG Award.)

2. The additional certification requirement. This condition requires the recipient jurisdiction to submit a "Certifications and Assurances by the Chief Executive of the Applicant Government." (Chicago FY 2018
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