States York v. U.S. Dep't of Justice, 18 Civ. 6471 (ER)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtRamos, D.J.
PartiesSTATES OF NEW YORK, CONNECTICUT, NEW JERSEY, RHODE ISLAND, and WASHINGTON, and COMMONWEALTHS OF MASSACHUSETTS and VIRGINIA, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, and MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States, Defendants. CITY OF NEW YORK, Plaintiff, v. MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.
Decision Date30 November 2018
Docket Number18 Civ. 6471 (ER),18 Civ. 6474 (ER)

STATES OF NEW YORK, CONNECTICUT, NEW JERSEY, RHODE ISLAND, and WASHINGTON,
and COMMONWEALTHS OF MASSACHUSETTS and VIRGINIA, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, and MATTHEW G. WHITAKER,
in his official capacity as Acting Attorney General of the United States, Defendants.


CITY OF NEW YORK, Plaintiff,
v.
MATTHEW G. WHITAKER, in his official capacity as Acting Attorney General of the United States,
and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.
*

18 Civ. 6471 (ER)
18 Civ. 6474 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 30, 2018


OPINION AND ORDER

Ramos, D.J.:

Since Congress created the modern version of the program in 2006, the Plaintiff States and City of New York have received funding for criminal justice initiatives through the Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") program, named after New York City police officer Edward R. Byrne, who was killed in the line of duty. In 2017, for the first time in

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the history of the program, the U.S. Department of Justice ("DOJ") and Attorney General (collectively, "Defendants") imposed three immigration-related conditions that grantees must comply with in order to receive funding. Plaintiffs bring this suit challenging these new conditions. Consistent with every other court that has considered these issues, the Court concludes that Defendants did not have lawful authority to impose these conditions. For the reasons set forth below, Plaintiffs' motion for partial summary judgment is GRANTED, and Defendants' motion for partial summary judgment or in the alternative to dismiss is DENIED.

I. Background

A. The Byrne JAG Program

The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. I, 82 Stat. 197, which created grants to assist the law enforcement efforts of state and local authorities. After undergoing several amendments, the modern Byrne JAG program was created through the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006). The Byrne JAG program is now codified at 34 U.S.C. §§ 10151-10158.

Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health. 34 U.S.C. §§ 10152(a)(1), 10153(a). The funds are disbursed according to a formula based on the particular jurisdiction's population and violent crime statistics. Id. § 10156. Grantees may also make subgrants to localities or community organizations, id. § 10152(b), and some state funds are set aside for subgrants to localities, id. § 10156(c)(2).

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On July 25, 2017, Defendants announced that they were imposing three new immigration-related conditions on applicants for Byrne JAG funds in fiscal year ("FY") 2017.1 According to the press release announcing the change, the conditions were intended to "encourage . . . 'sanctuary' jurisdictions to change their policies and partner with federal law enforcement to remove criminals."2 Holt Decl. Ex. 17, at AR-00992, Doc. 33-17.3

The first condition requires grantees, upon request, to give advance notice to the Department of Homeland Security ("DHS") of the scheduled release date and time of aliens housed in state or local correctional facilities (the "Notice Condition"). As stated in the award documents, the Notice Condition provides:

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A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and — as early as practicable . . . — provide the requested notice to DHS.

New York State's FY 2017 Byrne JAG Grant ¶ 55(1)(B), Holt Decl. Ex. 1, Doc. 33-1.

The second condition requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status (the "Access Condition"). The Access Condition provides:

A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.

Id. ¶ 55(1)(A).4

The third condition requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone's citizenship or immigration status (the "Compliance Condition"). The Compliance Condition provides:

[N]o State or local government entity, -agency, or -official may prohibit or in any way restrict — (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b).

Id. ¶ 53(1).

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Grantees are also required to monitor any subgrantees' compliance with the three conditions, and to notify DOJ if they become aware of "credible evidence" of a violation of the Compliance Condition. Id. ¶¶ 53(3), 54(1)(D), 55(2), 56(2). Grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. Id. ¶ 1; Holt Decl. Ex. 17, at AR-01031, -01033.

B. Plaintiffs

The States of New York, Connecticut, New Jersey, Rhode Island, and Washington, the Commonwealths of Massachusetts and Virginia (collectively, the "States"), and the City of New York (the "City") have received Byrne JAG funds since at least 2006 (and some had received predecessor grants for decades). Pls.' 56.1 ¶¶ 63, 66, 89, 114, Doc. 23. Plaintiffs have used these funds to support a broad array of law enforcement, criminal justice, public safety, and drug treatment programs. Id. ¶¶ 64, 115.

On June 26, 2018, DOJ issued award letters to the States requiring their acceptance of the new conditions described above in order to receive their FY 2017 Byrne JAG funds, which collectively totaled over $25 million. Id. ¶¶ 26, 30. Although the City had also applied for a FY 2017 Byrne JAG grant of over $4 million, the City did not receive an award letter at that time. Id. ¶¶ 44, 51, 114. Instead, in letters sent several months earlier, DOJ informed the City that, "based on a preliminary review, the Department has determined that [the City] appears to have laws, policies, or practices that violate 8 U.S.C. § 1373," DOJ's Oct. 11, 2017 Letter 1, Soler Decl. Ex. B., Doc. 41-2, which could result in the City's "ineligib[ility] for FY 2017 Byrne JAG funds," DOJ's Jan. 24, 2018 Letter 2, Soler Decl. Ex. D, Doc. 41-4.

DOJ cited, among other things, the City's Executive Order No. 41 as a policy that "appears to . . . violate" § 1373's prohibition on restricting communications between local officials and immigration authorities regarding immigration status. DOJ's Oct. 11, 2017 Letter

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1-2. Executive Order No. 41, together with Executive Order No. 34, forms the City's "General Confidentiality Policy," which was issued by then-Mayor Michael Bloomberg in 2003. Pls.' 56.1 ¶ 143. This policy protects "confidential information," which is defined as including, as relevant here, information concerning an individual's immigration status.5 Exec. Order No. 41, § 1 (2003), Negrón Decl. Ex. B, Doc. 42-2. Under the policy, City employees may not disclose an individual's immigration status except in limited circumstances, such as when the disclosure is authorized by the individual, is required by law, is to another City employee as necessary to fulfill a governmental purpose, pertains to an individual suspected of illegal activity (other than mere status as an undocumented immigrant), or is necessary to investigate or apprehend persons suspected of terrorist or illegal activity (other than mere undocumented status). Id. § 2. Additionally, police officers may not inquire about a person's immigration status unless investigating illegal activity other than mere undocumented status, and may not inquire about the immigration status of crime victims or witnesses at all. Id. § 4(4). Other City employees may not inquire about any person's immigration status unless the inquiry is required by law or is necessary to determine eligibility for or to provide government services. Id. § 4(3).

The purpose of the City's General Confidentiality Policy is to assure residents that "they may seek and obtain the assistance of City agencies regardless of personal or private attributes, without negative consequences to their personal lives," because "the obtaining of pertinent information, which is essential to the performance of a wide variety of governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved." Id. at 1. The City maintains that its General Confidentiality Policy, in conjunction

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with other privacy laws and policies, encourages residents to report crimes, seek medical treatment, and use other City services because they can trust that the City will protect their personal information. Pls.' 56.1 ¶ 177. The City believes that these laws and policies are instrumental in maintaining the City's...

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