City of Phila. v. Sessions, CIVIL ACTION NO. 17–3894

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Baylson, J.
• Citation: 309 F.Supp.3d 289
• Parties: The CITY OF PHILADELPHIA v. Jefferson Beauregard SESSIONS III, Attorney General of the United States
• Decision Date: 06 June 2018
• Docket Number: CIVIL ACTION NO. 17–3894

309 F.Supp.3d 289

The CITY OF PHILADELPHIA
v.
Jefferson Beauregard SESSIONS III, Attorney General of the United States

CIVIL ACTION NO. 17–3894

United States District Court, E.D. Pennsylvania.

Signed June 6, 2018

309 F.Supp.3d 293

Kirti Datla, Reedy C. Swanson, Daniel J.T. Schuker, Neal Katyal, Hogan Lovells US LLP, Washington, DC, Virginia A. Gibson, Alexander B. Bowerman, Jasmeet K. Ahuja, Sara A. Solow, Hogan Lovells US LLP, Judy Lee Leone, Dechert LLP, Lewis Rosman, Sozi Pedro Tulante, City of Philadelphia Law Dept., Marcel S. Pratt, City of Philadelphia Law Department Chair, Litigation Group, Robert C. Heim, Dechert, Will W. Sachse, Dechert, Price & Rhoads, Philadelphia, PA, for The City of Philadelphia.

Brad P. Rosenberg, Daniel Schwei, Rachael Lynn Westmoreland, Arjun Garg, Chad A. Readler, James H. Percival, II, U.S Department of Justice, Washington, DC, Anthony St. Joseph, U.S. Attorney's Office, Philadelphia, PA, for Jefferson Beauregard Sessions III, Attorney General of the United States.

MEMORANDUM

Baylson, J.

309 F.Supp.3d 294

"no place indeed should murder sanctuarize."

Hamlet, Act 4, sc 7, II, 98

"nor sleep nor sanctuary."

Coriolanus, Act 1, sc II, 19–27

"The privilege of sanctuary was as ancient as England itself and developed from a mixture of Hebrew, Greek, Roman, Anglo–Saxon, and Christian traditions."

Liberty to Misread: Sanctuary and Possibility in The Comedy of Errors Woodring, Vol. 28, Yale Journal of Law & the Humanities, 319, 320 (2017)

TABLE OF CONTENTS

I. INTRODUCTION AND LITIGATION HISTORY SUMMARY...295

II. SUMMARY OF FINDINGS...296

III. FACTS...297

A. Summary of Testimony at Trial...297

1. Brian Abernathy...297

a) City Prisoner Information...297

b) ICE Detainers...298

c) Advance Notice of Release...299

d) Prison Access...299

2. Eva Gladstein...299

3. Julie Wertheimer...300

a) Section 1373 Issues...300

b) City Criminal Justice Details...301

c) JAG Details...301

4. Matthew Gillespie...302

a) Memos—February 7, 2018 and April 23, 2018...303

5. Commissioner Ross...303

a) Training...304

b) Smart Policing...304

c) Budget...304

d) Decrease in Crime...304

6. David O'Neill...305

a) ICE Access to City Data...306

b) Prisoner Interviews...306

c) Custody Transfer...307

B. Findings of Fact...308

1. City Policies...308

2. City Law Enforcement Practices...309

3. Prison Access...309

4. Information Sharing...310

5. City Supports Cooperation with all Law Enforcement Agencies...312

6. City Practices Re: ICE Request for Advance Notice of Release...314

7. Conclusory Findings of Fact...315

IV. CITY'S MOTION FOR ADOPTION OF JUDGE STRAWBRIDGE'S REPORT AND RECOMMENDATION...316

V. CROSS–MOTIONS FOR SUMMARY JUDGMENT AS TO COUNTS I–III...318

A. Parties' Contentions...319

B. Relevant Standards...319

1. Rule 56 Standard...319

2. Administrative Procedure Act...320

C. Violation of the APA through Ultra Vires Conduct Not Authorized by Congress in the Underlying Statute (Count I)...320

1. City of Chicago v. Sessions—7^th Circuit Decision...320

2. Prior opinion of this Court: the Challenged Conditions are Ultra Vires ...321

D. Violation of Constitutional Separation of Powers (Count II)...321

309 F.Supp.3d 295

E. Violation of the APA through Arbitrary and Capricious Agency Action (Count III)...322

1. The Administrative Record...323

2. The Decision to Impose All Three Challenged Conditions Was Arbitrary and Capricious 53...323

VI. SPENDING CLAUSE (COUNT IV)...325

VII. MURPHY V. NCAA AND THE TENTH AMENDMENT—COMMANDEERING...325

A. Review of Preliminary Injunction Opinion...325

B. Murphy v. NCAA...327

C. Effect of Murphy v. NCAA on Constitutionality of Section 1373...329

D. The First Alternative Conclusion re § 1373—The Text Supports the City's Contentions...331

1. The Text of Section 1373 Does Not Require Compliance with the JAG Conditions...331

2. Cases Interpreting Section 1373: Bologna and Steinle...331

a) Bologna...332

b) Steinle...332

3. Statutory Interpretation...332

E. Second Alternative Conclusion re § 1373—The City Complies with the JAG Conditions...333

1. Demore v. Kim, 538 U.S. 510, 513 (2003)...333

2. Jennings and Dimaya...334

3. City Complies with § 1373...336

VIII. STANDARD FOR PERMANENT INJUNCTION AND STANDARD OF REVIEW...338

A. Permanent Injunction Standard...338

B. Arguments of the Parties...339

C. Injunctions Against Unconstitutional Grant Conditions...339

D. Irreparable Harm...340

IX. DECLARATORY JUDGMENT...342

X. MANDAMUS...343

XI. CONCLUSIONS OF LAW...344

XII. CONCLUSION...345

I. INTRODUCTION AND LITIGATION HISTORY SUMMARY

As sailors in Homer's "The Odyssey" seeking to avoid the mythical sea monsters Scylla and Charybdis as they travel to the island of Thrinacia, Philadelphia seeks to avoid having to confront the choice between two alternatives which it finds undesirable. To Philadelphia, Scylla represents compliance with a federal statute requiring that the City issue no guidance restricting its police and other officials from sharing information about the immigration status of City residents, while Charybdis represents $1.6 million that Philadelphia would use to provide vital resources to bolster its local criminal justice prerogatives. In Greek, this is referred to as dí??µµa —a "dilemma," or a "double proposition"—which offers two unacceptable alternatives. Below, this Court lays out a full explanation of why Philadelphia need not make this "Hobson's Choice," and in any event, can steer safely to Thrinacia, accepting the $1.6 million without compromising its local objectives.

The City of Philadelphia filed this lawsuit seeking to enjoin Defendant, United States Attorney General Jefferson Beauregard Sessions, III, from imposing three separate immigration-related conditions on the receipt of grant funds under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program, a federal program providing financial assistance to states and

309 F.Supp.3d 296

cities for criminal justice. Under the Byrne program, grants are determined by a formula, and funds have already been appropriated by Congress. In fiscal year 2017, Philadelphia would have been entitled to $1.598 million, which it planned to allocate, among other things, to equipping police officers with Narcan to counteract opioid overdoses.

The three conditions on Byrne grants the City challenges are as follows:

a. The City must provide to the U.S. Immigration and Customs Enforcement (ICE) access to City prisons to interview individuals of interest to ICE.

b. The City must provide advance notice to ICE of release from City prisons of aliens whose "scheduled release date and time" ICE requests.

c. The City must certify compliance with 8 U.S.C. § 1373, a statute which purports to prohibit the City from restrictions on disclosure of information as to the citizenship or immigration status of any "person."

The City also sought a declaration that it complied with 8 U.S.C. § 1373, as lawfully construed, and a writ of mandamus requiring the Attorney General to fund the City its full grant award. The City moved for a preliminary injunction ("PI"), and after an evidentiary hearing, the Court granted the injunction. City of Philadelphia v. Sessions, 280 F.Supp.3d 579 (E.D. Pa. 2017).¹ The 7^th Circuit Court of Appeals has affirmed a similar PI entered by the Chicago district court, citing and relying on this Court's PI opinion.

The Court then required the parties to engage in fact discovery, which took place, in part, under Judge David Strawbridge, appointed as a Master, who filed a Report and Recommendation, discussed below.

Following a four-day trial and submission of post-trial briefs, this opinion makes findings of fact and conclusions of law on all issues and the Court will grant equitable relief, in favor of the City.

II. SUMMARY OF FINDINGS

1. The public statements of President Trump and Attorney General Sessions, asserting that immigrants commit more crimes than native-born citizens, are inaccurate as applied to Philadelphia, and do not justify the imposition of these three conditions.

2. The Attorney General did not follow established law in promulgating the first two conditions.

3. As to the third condition, certification of compliance with Section 1373, the Court finds:

a. The Attorney General did not follow established law in promulgating this condition;

b. The Supreme Court's recent opinion in Murphy v. NCAA renders it unconstitutional;

4. The Court alternatively finds:

a. As to the first two conditions:

i. The City provides ICE access to City prisoners if the prisoner consents after being advised of their right to counsel;

ii. The City has agreed to give advance notice of release of criminal aliens if ICE

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