Case Analysis, City and County of San Francisco v. Barr

By, James T. Daly
In City and County of San Francisco v. Barr, No. 18-17308 (9th Cir. 2020), the 9th Circuit Court of Appeals held that governmental entities that refuse to cooperate with US Customs and Immigration Enforcement may still receive federal funding to support a wide variety of criminal justice programs.

The federal funding program that is the subject of this lawsuit is the Edward Byrne Memorial Justice Assistance Grants program (“JAG”). This federal program provides funding for state and local criminal justice programs including law enforcement, crime prevention and education, drug treatment and enforcement, technology improvements, mental health programs and crisis intervention teams.

The JAG program was named after Edward Byrne, a New York City police officer. In the early morning hours of February 26, 1988, Officer Byrne was on detail protecting a witness who had agreed to testify in court against local drug dealers. Two armed gunmen crept up to his car and shot him five times in the head. Officer Byrne, who was only 22 years old, died of his wounds. The criminals were captured and sentenced to 25 years to life. They were members of a gang who had been instructed by a jailed drug kingpin to kill a police officer. A truly horrific crime that should have carried the death penalty.

Anyway, agencies that wish to apply for the JAG funds must complete an application and agree to certain conditions. In 2017, the JAG registration program included 2 new conditions that had to be met in order to receive funding. In addition, applicants must certify that their laws and policies comply with 8 U.S.C. § 1373, a federal statute prohibiting states and localities from restricting the flow of information regarding an individual’s citizenship or immigration status between state and local officials and the Department of Homeland Security (“DHS”).

Here are the 2 new conditions:

1. The applicant must permit personnel of DHS to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and

2. Provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.

The City and County of San Francisco and the State of California use JAG funds and they do not want to comply with the 2 new conditions. They also argue that the certification requirement does not apply They are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws and therefore cannot certify that they will cooperate with DHS.

For instance, a section of San Francisco’s Administrative Code prohibits the use of any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any such personal information except as required by Federal or State statute, regulation, or court decision.

California law (1) prohibits enforcement agencies from providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities under certain circumstances and (2) prohibits the agencies from providing personal information about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public.

In August 2017, San Francisco and California filed lawsuits in the Northern District of California seeking to enjoin the Department of Justice (“DOJ”) from implementing the 2 new conditions and the required certification. As Plaintiffs, they asserted that the new conditions are not authorized by the JAG program and violate constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”). San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds and California claimed it was at risk of “losing $31.1 million” in program funds.

The DOJ contends that Congress granted it independent authority to establish the conditions for receiving JAG funds, including placing special conditions on all grants, and determining priority purposes for formula grants. Other circuits have reached differing conclusions regarding this authority and to date, only the Second Circuit has held that the placing of certain conditions is allowed.

In October 2018, the district court decided the case in Plaintiffs’ favor. The court held that the 2 new conditions were unenforceable against Plaintiffs and any other jurisdiction in the United States. The district court also declared that Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373, which it narrowly construed, and that DOJ cannot withhold JAG funds.

The district court stayed the effect of the injunction’s nationwide scope pending appellate review. The district court held that they exceed DOJ’s statutory authority, violate constitutional separation of powers, violate the Spending Clause, and are arbitrary and capricious under the APA.

The 9th Circuit affirmed the district court’s order declaring the 2 new questions unlawful and enjoining DOJ from enforcing them against Plaintiffs and that Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373, which it narrowly construed, and that the DOJ cannot withhold JAG fiunds.