Herrera moves to invalidate Department of Justice grant conditions targeting sanctuary cities

City Attorney Dennis Herrera seeks a nationwide injunction against the U.S. Department of Justice’s unconstitutional grant conditions

SAN FRANCISCO (July 12, 2018) — City Attorney Dennis Herrera on Wednesday filed a motion for summary judgment, asking a federal court to find that the U.S. Department of Justice’s new conditions on federal law enforcement grants targeting sanctuary cities are unconstitutional. Herrera is also asking the court to declare that San Francisco’s sanctuary city policies comply with federal law and is seeking a nationwide injunction that would prohibit the Department of Justice from enforcing the conditions.
“President Trump and his administration have never been subtle about their efforts to vilify immigrants and to punish those who refuse to do so,” said Herrera. “Now, they are trying to bully local government agencies into doing their federal immigration enforcement work by withholding critical funding. By trying to coerce San Francisco into abandoning our sanctuary laws and policies, they are undercutting local law enforcement and endangering our communities by withholding funds for programs that reduce crime. These requirements are unlawful and violate the Constitution. We will continue to fight in court to compel the president and his administration to follow the law.”
Herrera filed the lawsuit on Aug. 11, 2017 against U.S. Attorney General Jefferson B. Sessions III, Acting Assistant Attorney General Alan R. Hanson and the U.S. Department of Justice. By imposing these conditions on law enforcement grants awarded to state and local governments, the executive branch is unilaterally giving itself power that belongs to Congress, violating the Constitution’s separation of powers. It is also imposing conditions that even Congress lacks the power to impose, violating the Constitution’s spending clause.
Wednesday’s motion asks the court to do the following:

  • Declare that San Francisco’s sanctuary city laws and policies comply with 8 U.S.C. § 1373, a federal statute about sharing immigration-status information;
  • Find that the Notice, Access, and Section 1373 Requirements imposed on fiscal year 2017 Byrne JAG funds violate separation of powers and Spending Clause principles; and
  • Enjoin the Department of Justice from the enforcing the conditions in dispute.

Grant Conditions
The Department of Justice announced in a July 25, 2017 press release that it was adding new conditions to be eligible for Fiscal Year 2017 Edward Byrne Memorial Justice Assistance Grants. These grants have been awarded annually for more than three decades. The department describes them as “the leading source of federal justice funding to state and local jurisdictions.”
Sessions threatened to withhold the grant funding unless local governments agree to two unauthorized and unlawful conditions:

  • allow federal immigration agents unlimited access to local detention facilities to interrogate detainees about their immigration status, and
  • upon request, provide 48 hours notice to immigration agents before releasing someone that the federal government suspects — often wrongly — is in the country unlawfully. That means residents and U.S. citizens could be jailed without probable cause, and cities or states could face legal liability for holding someone past their release date to provide the federal government the required notice.

There is no federal law that requires local jurisdictions to provide advance notice to federal immigration authorities before releasing someone purportedly in the country unlawfully from their custody. Nor is there any federal law requiring local authorities to grant federal officials access to local detention facilities to interrogate people in custody.
Federal Coercion
“These requirements are an attempt to coerce local governments into serving as an extension of federal immigration enforcement,” Herrera said. “San Francisco is not stopping the federal government from doing its job. However, San Francisco’s priorities are to build community trust, keep our neighborhoods safe by encouraging reporting of crimes, and promoting accesses to vital city services regardless of immigration status. Our police and deputies are dedicated to protecting these values and fighting crime, not breaking up hard-working families.”
These grant conditions are part of the Trump administration’s continued misguided assault on sanctuary cities. These jurisdictions limit their coordination with federal immigration officials and use their law enforcement resources to fight crime rather than perform federal immigration enforcement, which often involves jailing individuals who have not committed a crime and have only committed civil violations, like overstaying a visa. 
Money to Fight Crime
Byrne JAG funding provides support for some of San Francisco’s critical public safety and criminal justice programs. For fiscal year 2017, San Francisco is entitled to a direct Byrne JAG grant in the amount of $528,845. San Francisco also expects to receive a state pass-through of Byrne JAG funds in the approximate amount of $923, 401.
The money is slated for programs spanning six San Francisco city departments, including the Police Department, Sheriff’s Department, District Attorney’s Office and Public Defender’s Office. The grant would fund initiatives designed to reduce recidivism, deter drug use, provide services to at-risk youth, and supervise probationers with substance abuse and/or mental health issues.  One program is Young Adult Court, where 18 to 24 year olds accused of certain crimes are put on a structured path to productivity. They are required to check in weekly with the court as they pursue therapy, life-skills classes and employment. If they successfully complete the program, they can have their charges dropped or reduced.
As of Wednesday’s filing, San Francisco is not aware of the Department of Justice taking action on its application. Yet, the Department of Justice has awarded grants to “jurisdictions that share the Department’s commitment to keeping criminals aliens off our streets and our law abiding citizens safe,” while stating that “[r]eviews of some applications remain ongoing.” There is no regulatory authority for the Department of Justice to award grants immediately to favored jurisdictions and to conduct “reviews” of unspecified nature and duration for disfavored jurisdictions.
The lawsuit in question is the second of two that Herrera has brought against the Trump administration over federal funding for sanctuary cities. Herrera first sued the president on Jan. 31, 2017 to halt implementation of Trump’s executive order denying federal funds to “sanctuary jurisdictions” that allegedly violated 8 U.S.C. 1373, a section of federal law that prohibits state and local governments from restricting their staff from communicating with federal immigration agents about someone’s citizenship or immigration status. U.S. District Court Judge William Orrick on Nov. 20, 2017 found that President Trump’s executive order violated the Constitution and issued an order prohibiting the federal government from enforcing it. The federal government appealed his ruling, the parties argued the case on April 11 and the City awaits a ruling on the appeal.
This case involving the grant conditions is: City and County of San Francisco v. Jefferson B. Sessions III, U.S. District Court for the Northern District of California Case No. 3:17-cv-04642, filed Aug. 11, 2017. Additional documentation from the case is available on the City Attorney’s website at: www.sfcityattorney.org


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