City of L. A. v. Barr, 18-55599

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: IKUTA, Circuit Judge
• Citation: 929 F.3d 1163
• Parties: CITY OF LOS ANGELES, Plaintiff-Appellee, v. William P. BARR, Attorney General; Alan R. Hanson, in his official capacity as Acting Assistant Attorney General of the Office of Justice Programs; Russell Washington, in his official capacity as Acting Director of the Office of Community Oriented Policing Services; United States Department of Justice, Defendants-Appellants.
• Docket Number: No. 18-55599,18-55599
• Decision Date: 12 July 2019

929 F.3d 1163

CITY OF LOS ANGELES, Plaintiff-Appellee,
v.
William P. BARR, Attorney General; Alan R. Hanson, in his official capacity as Acting Assistant Attorney General of the Office of Justice Programs; Russell Washington, in his official capacity as Acting Director of the Office of Community Oriented Policing Services; United States Department of Justice, Defendants-Appellants.

No. 18-55599

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 30, 2018 Pasadena, California
Filed July 12, 2019

IKUTA, Circuit Judge:

929 F.3d 1169

In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (VCCLEA), Pub. L. No. 103-322, 108 Stat. 1796, to provide a range of federal assistance to state and local law enforcement. The Public Safety Partnership and Community Policing Act of 1994, Pub. L. No. 103-322, 108 Stat. 1807 (the Act), which was enacted as part of the VCCLEA, authorizes the Department of Justice (DOJ) to administer a competitive grant program that allocates a limited pool of funds to state and local applicants whose applications are approved by the Attorney General.

In 2017, Los Angeles applied for a grant, but failed to score highly enough to earn one. It challenges the use of two of the many factors DOJ uses in determining the scores for each applicant. Because DOJ’s use of these two factors in evaluating applicants for a competitive grant program did not violate the Spending Clause of the U.S. Constitution, art. I, § 8, cl. 1, did not exceed DOJ’s statutory authority, and did not violate the Administrative Procedure Act, we reverse the district court’s grant of summary judgment in favor of Los Angeles.

I

The Act’s grant program, codified at 34 U.S.C. §§ 10381 to 10389, gives broad discretion to DOJ to allocate grants and administer the grant program for the purposes set forth in § 10381(b). Section 10381(b) authorizes twenty-three different purposes, each generally linked to the goal of enhancing the crime prevention function of state and local law enforcement through working with the community. DOJ is authorized to "promulgate regulations and guidelines to carry out" the grant program, 34 U.S.C. § 10388, and may prescribe the required form and content of grant applications through regulations or guidelines, id. § 10382(b). By statute, the application must contain eleven broad categories of information, including an assessment of the impact of the proposed initiative on other aspects of the criminal justice system. See id. § 10382(c). Each application must also "identify related governmental and community initiatives which complement or will be coordinated with the proposal" and "explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing." Id. § 10382(c)(4), (10).

929 F.3d 1170

The statute permits DOJ to give "preferential consideration, where feasible," on specified grounds, including whether the application proposes hiring and rehiring additional career law enforcement officers, where a non-Federal contribution will cover more than the required 25 percent of the program cost. Id. § 10381(c)(1).¹ The statute was amended in 2015 to allow DOJ to give preferential treatment to a state that has enacted certain laws designed to combat human trafficking. See id. § 10381(c)(2), (3) ; Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, §§ 601, 1002, 129 Stat. 227, 259–60, 266–67.

Congress has regularly made appropriations for grants administered under this statute. DOJ has determined that Congress intended these appropriations to be used for two of the twenty-three purposes set forth in § 10381, namely "to rehire law enforcement officers who have been laid off as a result of State, tribal, or local budget reductions for deployment in community-oriented policing," 34 U.S.C. § 10381(b)(1), and "to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation," id. § 10381(b)(2).²

DOJ has exercised its broad discretion under the Act by developing a combined guidelines and application form for parties that wish to apply for a grant to hire or rehire officers for community-oriented policing. See COPS Office Application Attachment to SF-424 (referred to hereafter as "Application Guidelines"). The Application Guidelines define "community policing" as "a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime." Community policing strategies may include "ongoing collaborative relationships" with local and federal agencies, as well as "systematically tailor[ing] responses to crime and disorder problems to address their underlying conditions."

The Application Guidelines set out a series of questions and instructions that allow an applicant to explain why it is seeking a grant and why it is best qualified to receive one. Among other things, an applicant must explain its need for federal assistance, provide information about its fiscal health, agree to comply with various provisions of federal law, and provide additional information and assurances of various kinds. An applicant must also specify its law enforcement and community policing strategy, including a "crime and disorder problem/focus area." The Application Guidelines direct the applicant to choose one of eight focus areas: "illegal immigrations," "child and youth safety focus,

929 F.3d 1171

" "drug abuse education, prevention and intervention," "homeland security problems," "nonviolent crime problems and quality of life policing," "building trust and respect," "traffic/pedestrian safety problems," and "violent crimes problems." The Application Guidelines provide examples of the type of problems included in each focus area. For the homeland security focus area, for instance, the Application Guidelines state, "Please specify your critical infrastructure problem; for example, addressing threats against facilities, developing and testing incident response plans, etc." For the illegal immigration focus area, the Application Guidelines state, "Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships,³ task forces and honoring detainers."⁴

DOJ evaluates, scores, and ranks the submitted applications, then awards grant funds to the highest scoring applicants.⁵ The scoring process is designed to allocate federal assistance to programs, focuses, or conduct that DOJ deems to best further statutory purposes and federal goals. Consistent with the statutory criteria, DOJ gives points to applicants that best demonstrate "a specific public safety need" and show an "inability to address the need without Federal assistance," 34 U.S.C. §§ 10382(c)(2), (c)(3), and to applicants that best "explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing," id. § 10382(c)(10). DOJ also gives points to applicants in jurisdictions with higher crime rates and comparatively lower fiscal health. Additionally, DOJ scores applicants on how their proposals relate to that year’s federal goals. In various years, DOJ has awarded points for applicants that gave work to military veterans, that adopted specified management practices (such as making regular assessments of employee satisfaction, exercising flexibility in officer shift assignments, and operating an early intervention system to identify officers with specified personal risks), or that experienced certain catastrophic events, such as a terror attack or school shooting. In 2017, DOJ gave additional points to applicants that focused on the federal priority areas of violent crime, homeland security, and control of illegal immigration. Also in 2017, an applicant could elect to receive additional points by submitting a "Certification of Illegal Immigration

929 F.3d 1172

Cooperation" (the "Certification") in which the applicant agrees that (1) the applicant will implement rules, regulations, or practices that ensure DHS personnel have access to the entity’s correctional or detention facilities in order to meet with an alien, and (2) the applicant will implement rules, regulations, policies, or practices to ensure that the entity’s correctional or detention facilities provide notice "as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release" of an alien in custody.

As usual, in the 2017 grant cycle, DOJ received more requests for funding than it was able to grant. Congress allocated roughly $98.5 million for grants, but applicants requested almost $410 million. From a total applicant pool of 90 large jurisdictions and 1,029 small jurisdictions, DOJ awarded grant funds to 30 of the large jurisdictions and 149 of the small jurisdictions. An applicant did not need to select the illegal immigration focus or submit the Certification to receive funds. Of the seven applicants...