Metropolitan News-Enterprise


Tuesday, July 14, 2020


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Disapproval of DOJ Conditions on Local Funding Reaffirmed

Ninth Circuit Says California’s Sanctuary Cities and Counties Can’t Be Denied Criminal Justice Grants Based on Refusals to Give Immigration Officials Access to Inmates, Information on Their Release


By a MetNews Staff Writer


The U.S. Justice Department may not withhold or claw back criminal justice funding from cities and counties in California with “sanctuary” policies under which cooperation with immigration authorities is kept to a minimum, the Ninth U.S. Circuit Court of Appeals held yesterday, mirroring last year’s decision in favor of the City of Los Angeles.

Judge Richard R. Clifton wrote the opinion for a three-judge panel. It affirms a decision won by the City and County of San Francisco that it cannot be deprived by the federal Department of Justice (“DOJ”) of Edward Byrne Memorial Justice Assistance Grant program funds based on its refusal to abide by conditions the DOJ imposed on local governmental entities in Fiscal Year 2017.

Under the “Access and Notice Conditions,” access must be accorded immigration authorities to incarcerated persons who are possibly unlawfully present in the United States, and at least 48-hour notice must be given when such persons are about to be released. The City and County of San Francisco has declined to cooperate to that extent, as have the City and County of Los Angeles.

Sharing Information

A third proviso—the “Certification Condition”—is that governmental entities certify that they adhere to federal laws, which include, under 8 U.S.C. §1373, sharing information about individuals’ “citizenship or immigration status” with the state and with the federal Department of Homeland Security. That condition, Clifton said, is met by California’s sanctuary cities and counties.

The opinion affirms a summary judgment, granted on April 25, 2016 by District Court Judge William Horsley Orrick of the Northern District of California, providing for declaratory relief and an injunction, except to the extent that the injunction applies nationwide. Its application was restricted to California.

The Ninth Circuit’s opinion came the same day that the Second Circuit denied a rehearing en banc in a case in which a three-judge panel held that the Justice Department’s conditions are lawful.

The First, Third, Seventh and Ninth Circuits have found to the contrary, with the Ninth Circuit on Oct. 31, 2019, affirming a preliminary injunction against enforcement of the in City of Los Angeles v. Barr.

Clifton’s Opinion

In yesterday’s opinion, Clifton said:

“Recent precedential decisions by this court have done the heavy lifting with regard to the merits of the relief granted by the district court. We held that DOJ lacked statutory authority to impose the Access and Notice Conditions on Byrne funds in reviewing a preliminary injunction obtained by the City of Los Angeles….Consistent with our discussion in City of Los Angeles, we affirm the injunction barring DOJ from using the Access and Notice Conditions as Byrne funding requirements for any California state entity or political subdivision.”

In City of Los Angeles, Judge Sandra S. Ikuta wrote for the panel in declaring:

“Because none of DOJ’s proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions, the conditions are ultra vires.”

Statutory grants of authority to those officials, she declared, do not extend to overriding the intent of Congress in setting the formulas by which grants are to be determined. Clifton’s reasoning parallels Ikuta’s.

In explaining the narrowing of the scope of the injunction, he said:

“With regard to the geographical reach of the relief granted by the district court, however, we conclude that the district court abused its discretion in issuing an injunction that extended nationwide. Although San Francisco offered evidence that some jurisdictions across the country might welcome an injunction against the Challenged Conditions, nothing in the record or in the nature of the claims suggests that the relief granted by the district court needs to be extended to state and local governments outside of California, not parties to this litigation, in order to fully shield Plaintiffs.”

Press Statement

A press release issued yesterday by the state Department of Justice says:

“California Attorney General Xavier Becerra today successfully continued the fight against the Trump Administration’s unlawful bullying of communities to coerce them to do the federal government’s job of immigration enforcement.”

It quotes the attorney general as saying:

“Our courts have consistently slammed President Trump’s unlawful, hardball tactics to coerce communities to do his bidding. We sued the Trump Administration because our priority in California is to keep our communities safe and protected. We’re not about to concede $28.3 million of public safety [Justice Assistance Grant] grant funds that we’ve earned to do that work. To California’s critics of our lawsuits against the President who argue that we should surrender to Donald Trump’s bully playbook, I offer another 28.3 million reasons why we won’t.” (The state had join the city/county as plaintiff.)

The case is City and County of San Francisco v. Barr; 18-17311.

Second Circuit Decision

By an 8-4 vote of the active members of the New York-based Second Circuit yesterday resulted in a three-judge panel’s decision validating the DOJ conditions left standing.

Judge Rosemary S. Pooler, joined by Judges Denny Chin and Susan L. Carney, said in a dissent from the denial of rehearing:

“The panel opinion in this case allows the Executive to impose funding conditions on congressionally allocated federal funds in a manner plainly not contemplated by Congress. Astonishingly, given that four other circuits came out the other way, this Court refused to hear this case en banc.”

She added:

“I am, frankly, astounded that my colleagues did not find this a case of exceptional importance warranting en banc review.”

Judge José A. Cabranes, who was a member of the three-judge panel that sided with the DOJ, responded:

“Despite the vigor and intensity of Judge Pooler’s dissent, she sheds little new substantive light on the debate. Instead, Judge Pooler primarily marshals the arguments of the various opinions of the First, Third, Seventh, and Ninth Circuits upholding injunctions that preclude enforcement of the conditions. All of these opinions, save mat of the First Circuit; were available to the panel prior to its issuing its decision. The panel opinion thoroughly addressed all of the reasons relied on by our sister circuits in their decisions rejecting the Department of Justice’s position, and explained why, with due respect, it found each of those reasons unpersuasive….”

Judge Raymond J. Lohier Jr., joined by Judge Peter W. Hall, said he sided with the dissenters but voted against an en banc rehearing in order to expedite a decision on the matter by the U.S. Supreme Court. Lohier wrote:

“Until today, every single circuit judge to have considered the questions presented by this appeal has resolved them the same way. That’s twelve judges—including one former Supreme Court Justice—appointed by six different presidents, sitting in four separate circuits, representing a remarkable array of views and backgrounds, responsible for roughly fort}’ percent of the United States population, who, when asked whether the Attorney General may impose the challenged conditions, have all said the same thing: No.

“Undeterred, the panel breaks course in an opinion as novel as it is misguided.”

That decision came in State of New York v. U.S. Department of Justice, 19-267. The plaintiffs were the states of New York, Connecticut, Massachusetts, New Jersey, Virginia, and Washington.


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