the cops office has quote considerable discretion to allocate grants in a way it reasonably determines will foster community oriented policing to cabin that admission however each rely on a definition of community oriented policing that simply does not exist and the cops hiring program namely that community oriented policing is constant interaction with individual community members and nothing else that's a partnership between the community and police on the beat right well the specific definition and contrary to what l a would hold the specific definition of the cops office has long used is that community oriented policing is quote a philosophy that supports support systematic use of partnerships to proactively address the immediate conditions that give rise to public safety issues such as crime social disorder and fear of crime and i expect it be a bit but that means his partnership with the community right and why that's a community  they are that's not how the cops office defines it it's specifically says several places partnerships can involve not just community members and community organizations but also other government agencies including federal agencies if you look at your fifty seven there specific question in the cop's application that says have you the question says has the local agency right does it regularly collaborate with federal government agencies to form a partnership such as task force working groups etc and if you read the application you can see it is replete throughout with asking about partnerships throughout the community and the federal government when we think about federal government informant agencies they are part and parcel of the local law enforcement when did the whole idea of community policing  what i've already read which is this the systematic use of partnerships across the community to address public safety issues and social disorder and the cops office has long held that those partnerships are not just about cops on the beat talking to individual citizens it is about  broad strategy to engage the entire community including the organizations including government organizations and the federal government that engage in law enforcement throughout a community and that understanding of that difference is the key to this case and i should fifty seven it is a specific question in the application that gets scored and has been scored year in and year out do you engage in partnerships with community organization with other governmental organizations and specifically the federal government that's out of your fifty seven it's also an eighty two there's a question that asked has the local agency consulted with other federal law enforcement agencies in developing its community oriented policing so that plan so there is nothing new here except for the fact that is now being applied to a different issue area a different focus area and the city objects to that on policy grounds and i should also note the glossary definition which is that you are two eighty eight there's a specific in the application guide the cops office has a specific  y of terms in which it defines many different aspects of this program one of the defined terms is community oriented policing at york to eighty eight l a has never specifically as complaint does not challenge that they have signed applique every one of the seven years in which they signed an application and received funding they accepted that definition so for the first time in their briefs in this case they have invented a new definition of from new york to placing that has never been before then one that the cops office has put forward and i should also no that the cops office the statute itself gives the cops cops office the authority to define the policing not only is it an undefined term in the statute but if you look at ten three eighty one d two it says the eight the attorney general's technical to grantees quote may include the development of a flexible model that will define for state and local governments definitions associated with community oriented policing so the cops office has the authority to put forward that definition and it has done it discretion what is the difference between a discretionary grant program and a formula grant program that is that was in the door affidavit and also mentioned in the seven circuits decision of chicago versus sections what's the difference between a discretionary are aspects provisions of the statute that spell out certain pieces of the formula sometimes it can be given to the agency to offer their elaborate of the formula and the what's the so what's the difference the we have a formula and want to we don't have a it's a hard formula discretionary grants typically have much broader delegations of authority sometimes they're only a few lines sometimes they only come in appropriation they'll say something like a grants to forward public safety through principles of community oriented policing and then it is for the agency to develop a grant program this happens all the time throughout the federal government of the vela program program and application the scoring system that gives out the limit of pot of money and there are always more applicants than money available and so the agency has to have some ability to differ and under the formula under the formula program if you satisfy the formula you get money it's not typically yes now a form of the program can have some discretion to would depend on the statute it might be a formula to a certain point and then allow for discretion so that you have to look at the specific statutory provisions if i may turn into the two specific issues that that are raised here in this case there's a focus area and there's also bonus points and both of these ar consistent with the way the cops office has always employed scoring to differentiate among applications has it ever used the term illegal immigration before i'm not sure whether it's used the specific term illegal immigration before i'm not sure i don't believe it has but i can't i don't know if any cops materials ever in the history of the program go on prior to this new form if you had gone on the web site we didn't see anything to do with illegal immigration you would not have seen a focus area about illegal immigration specifically you would have seen focus areas that was new in twenty seventy the for the illegal immigration focus area was new in twenty seventeen yes rock and how does illegal immigration h statutory basis the statute says at ten thirty one the into the statutes to hire officers for the point of community oriented policing an undefined term which has been defined to include partnerships to address crime social disorder and fear of crime now what did they actually consider they considered whether illegal immigration office within that statutory definition of a public safety social disorder issue and we know that it does from the supreme court's decision in arizona just a few years ago the supreme court said five sixty seven us three ninety seven three ninety eight it noted the epidemic of crime safety risks serious property damage and environmental problems associated with the influx of illegal illegal immigration and it specifically said the problems posed to the state illegal immigration must not be underestimated and then it went on to say later in the opinion a page for ten state and federal cooperation could include a joint task force operational support in executing a warrant allowing federal immigration officers to gain access to the partnership i think it's pretty close a consultation is a partnership that there are there are elements of synonymous elements in those two words and the supreme court makes clear a paid for ten that working together that immigration is not solely a federal issue is not solely certainly not looking at that what the supreme court says about it and asking enough what factors did were actually considered at the time was it for example ever considered that  the police enforcing federal immigration laws could be have a harmful effect with respect to community policing that is that is a policy view that local jurisdictions are allowed to take so the way absolutely true that the application is dynamic so if you go down one path you going to go down that path and you may not get points for going down the other path so for example if you choose violent crime or let's say you street traffic safety and not violent crime violent crime gets a bonus in certain years the traffic safety doesn't so the point is i don't think you are fully responsive to judge or last question and i would like to pursue the same question but let me ask you in a different way ok is there any record here often agencies create a record they will send out notice and comment is there any record here as to what the cops office considered when it decided to add illegal immigration there is there is the door declaration has been put into or anything other than the door declaration the application itself explaining to get an answer to the question so the answer to the question is we have the door declaration we have the application of self and other than that we have no indication as to what people in the cop's office were thinking at the time they added illegal immigration we can make up all kinds of things we can look at arizona we can look at him versus them or we can look at these things but we don't know watching what what they were thinking about we have the same record for legal immigration that we have for every other question in the over one hundred page application what i mean is that if you look at the violent crime focus area or the traffic safety focus area this year's application and what was put in the record in this case in the record that is this is the same for illegal immigration and for those there's no there's no record of what the thinking was for nonviolent crime problems and quality of life policing so there was no record of what the cops office was thinking when they put the effort ocus area and your honor it's on the face of the application and the guide itself and it simply says remember this the purpose of this is not necessarily for the cops office to pick a focus area and then say this is every way in which you can address it the what the cops office does that picks focus areas and then allows communities to come back with a plan and also ask a series of questions about how community oriented policing will ok be applied i want to ask you a question and i want you to answer me directly ok i just want to know what the government's position rests on which subsection section ten thirty eight one b is it government relying on to include illegal immigration a grant shall demonstrate a specific public safety need and looking at that because those are that if that's what the government's position is resting upon both of those satisfied i have it right for a friend i have to write something about it safety as being part of what this grant is about and illegal immigration is a public safety issue as the supreme court has said time and again and most recently in arizona i say i'm running out of time i'd like to save some for you are not relying on  for this point you're on it when it's still relying yes and i would say is it your position i mean you just you're you're you just said you what you relied upon and now i'm asking you are you not representing that the government is not the language of the one in be two so the specific funding really stream comes in under the want to be to but to the extent that this statute reveals that congressional thinking about what community oriented policing is the other factors the other subsections are relevant so you're not relying on them for your insertion of illegal immigration as a focus this year or your other two contested challenges that you're saying that it sheds light on what congress was thinking sheds light on on what congress is thinking one thinks about the area from there into placing yes your honor and i apologize if i was unable to get to that earlier so that was wise it's a little more nuance on before are the grants that are that is mentioned in brief before are those the cops grants or is that a separate set of number one thirteen dash two three five for example that's at one twenty eight stat twenty one thirty comma twenty one ninety six in the language there says annual preparation and says it provides funds specifically quote for the hiring and rehiring of additional career law enforcement officers so that really tracks the one and two ok because one and two refers to community already oriented policing you're just saying before helps inform what community already policing is what you're actually looking for a separate grant to fund before is that correct well and just hasn't been authorized at this point we haven't read the appropriations to fund all of the twenty three purposes but they shed light on what community oriented policing is general i don't i don't see i don't see others in those in all of those purposes that refer to grants it's interesting the before is the one that is the only one the refer specifically to grants it is interesting your honor and perhaps there are some well i'll just say th morning your honor may please the court david science for the city of los angeles i'd like to begin with with the a few of the questions your honor was asking the department of justice to begin with you discussed the definition of community position as relying on chevron deference your honor i don't think i did reading the briefs they certainly seem to indicate now that they do i think we can get to an issue involving the fourth circuit's wryly decision that actually express i think it would be inconsistent with that but i also think the statute sheds more light than the department of justice acknowledges on what this grant is supposed to be about i think it is now clear that it is be one and be two that authorizes this grant program which is two and they have to do with substantially increasing the number of law enforcement officers interacting directly with members of the community quote cops on the beat in subsection two of those purposes is very similar talks about interacting program your honor if i could talk about in particular the notice in access requirements that the attorney general has attempted to impose on the cops can so so you're referring to the certification yes need to engage in community oriented policing to go after this problem of illegal immigration that that is one issue the second issue is much more divorced from the purpose of the grant which is what the justice department is saying is we will give you preference unrelated to the content of your grant proposal unrelated to your need for the grant we will give you preference we will give you a leg up in the competition if you are willing to play ball with the department of homeland security and agree that you will participate in illegal immigration enforcement in the statute prohibits the department of justice from doing that your honor i think there's there's a few very strong indications in the statute i would begin with  of the federal government is relying on is really an implicit delegation so there's nothing that actually authorizes the federal government to do that what the government is saying is we've been given this pot of money we've been directed to use it in a discretionary way for a purpose through regulations it is just simply both as i guidelines but i guess i have we haven't seen a specific guidelines either but i think even you know that is to administer the program so the question becomes you know what what really is the statutory authorization and what i would why would i would focus the court on section one hundred three eight one subsection c which can concerns preferential treatment for africa if they come from a state that adopts specific federally favor policies relating to human trafficking victims so that's my kind of my question about that was most of the focus the areas that are in the application package are not included in c and so are you saying things like nonviolent crime problems and quality of life policing focus areas is precluded to be given bonus points because it isn't one of the  preferential areas under c no your honor and this is where i would again draw the distinction between the two considerations were challenging i view the bonus points preferential treatment for having these specific immigration policies this notice and access which doesn't have to do with the way you use the grant money i think that's what we're talking about in subsection c that's that's closely in our thoughts the fact the congress set out preferential treatment for human trafficking excludes other things such as illegal immigration your honor again i think there i want to put to one side in answering this question the focus areas i think for example if if something is within the cops offices general power to give the grant for to use community oriented policing for problems of violent crime then i think is part of administering the granite can also say here the priority areas of of types of problems where we think community oriented policing can help so i think there's a lot of discretion in the focus areas and notice and access requirements are different the notice and access requirements are things that and i require an answer and it's bonus points so let's get that at least the terminology correct and  i heard opposing counsel saying that i felt partnerships with federal law enforcement was part of community policing and so they argue that the certification which gives you  bonus points for consultation communication and access is part of this cooperation which is part of the policing at least that's the argument that they make what makes this so different than any other focus area your honor i think that the focus area in particular the way that the way that the government is defending it on appeal i think it's changed from what it was when the cops office promulgated it and how it was defended in the district court with the with the focus area specifically says is not go find a community policing strategy to solve illegal immigration with the focus areas says is you need to identify your partnership with for example on entertainers there's four specific things that the focus area wants the applicant to do and we have not seen an expert with the government says well any program that you put forward would have to involve a community policing question about your cooperation with with with federal authorities i think that is just never been understood as being at the core of what community policing is about when congress passed this statute to reiterate it talked about including coordination and the like and they had they argued that los angeles agreed when they signed their application or at least didn't challenge it your honor coordination can certainly be part of a community oriented policing strategy and so for example the government that yes to have a good community oriented policing proposal that is about interactions with the community improve relationships between police and the community you also need to be coordinating that with any relevant governments but to take  notice and access bonus points for example that's divorced from the proposal with the department of justice is saying is you the city of los angeles you may have proposed school resource officers or you may have proposed someone to interact with at risk youth in the community it's not relevant is it after postal and vacant buildings i mean you get so you're saying that the purpose of the grant is to improve relations with the community but opposing counsel says the purpose of the grant is choose a community policing technique to address multiple different areas of crime or cool cool coordination with the federal law enforcement and i don't i don't think having a community oriented policing forecloses court nation with the federal government it may be that a particular applicant has a proposal where it would make sense to coordinate with the federal over years and even decades and now is a case has been something that is made at the local level and what the attorney general is attempting to do in this grant program it's a grant about hiring police officers for community oriented policing and the turning generals using that and saying the lucrative nature of gangs and so we're not going to enforce drug laws would that make the focus area on drug law as unlawful because then you're at a disadvantage you're on  not enforcing marijuana laws to the satisfaction of the federal government what what the what the attorney general could say is we think that is bad for community safety and so if you want an equal shot at that funding for community oriented policing even if your area your focus area may have nothing to do with drugs so i think if bonus points to terrorist actions that enforce marijuana laws under your theory that would be unlawful correct i think so if i think again there is the question of a focus area and i think in the area of drug laws historically the cops office has recognized that that is an area where community policing can have a role  california is right we think california is right about its approach to marijuana laws and we want texas to do the same thing so giving onus points to enforce prostitution was unlawful cause there arch want us point you know you're i don't think it depends on that i think it goes to a fundamental question of of what what the purpose of the statute is and the grant is what we would submit is is what congress said this is about the deployment of of officers to engage in communities of policing the hiring specifically of new police officers to go out into the community cops on the beat interacting directly with the community it is something much different than that for an attorney general to pick a policy of particularly favored policy that that he or she wants states and local governments to adopt and say if you want this access fair access to this pool of money for community oriented policing you have to do this other thing council what is the basis of your argument that is that that is that that it is unconstitutional or it's extra statutory they cannot do it or is that it's arbitrary and capricious it just they just went too far there's lots of discretion but the attorney general just gone too far in this case i know you've argued both which which one do you want to which one you want to stand on or start with first i'll start with the argument that this is all of us this is beyond the statutory authority and that's that's where you started and a minute ago you told me you were going to tell me what what look at what is authorize what is authorized the attorney general shall administer a grant program it's it is be one and be to the deployment of police officers security oriented policing i think it is well established that that doesn't mean that the attorney general can do anything can take in to take into account any factors that we know there is a limit and the question is what is the limit i think section ten three eight one see the human trafficking provisions provides a very good guide to what that limit ought to be because we know what congress says when it intends to authorize preferential treatment for doing something not related to the grant not a focus area but sometimes after the human trafficking was not related so if we had if we had if cops office had done this let's say five years ago or before that before the congress authorized human trafficking you'd be here today arguing that a human trafficking bonus point was ultra vigorous i think so and i think any any other view think that is a little different because it has a much tighter nexus to hiring it is specifically about the hiring of officers by the dozen by the do with community oriented policing no your honor but i think it does have something to do with with the success of the program of hiring officers and i think the attorney general could have so so when you make the argument on the human trafficking are you addressing only the certificate or also the focus areas because you've tried to be very careful in distinguishing between those two yes right i think that is that is that is the certification that the focus area has a separate issue which is that as the attorney general announced it in the cops office announced it in the grant it was not about you need to have a community policing strategy for illegal immigration it was we want you to honor detainers in to answer to eighty seven g agreements that's the focus area so what so what bars the focus areas if if if if ten three eighty one c is your best evidence for barring the certificate what bars the focus area what bars that would be that would be done three d one b one and two the words that's not the purposes right the purpose is for deployment of police officers and community oriented policing and the way that the cops office actually promulgated that focus or it has nothing to do with community oriented policing it says we want you to honor detainers and in fact if you know it so what does the government argue honor i don't know and i and i have not heard it from from the federal government and if you look at page seventy of the excerpts of record that's where it set out what this focus area is an immediately above that at the top of the page it says that the officers that you hire need to be deployed specifically to do the thing that you're saying your focus areas so if your focus is the honoring detainer prong of of illegal immigration focus area then what what the community is supposed to be saying is we're going to hire police officers to work on honoring detainers and i have not heard anything from the federal government and its briefs are today about what it would mean to have that community policing strategies that's why i don't think it's authorized by the one one of the other focus areas was homeland security and i'm looking at the application form i'm on your seventy one and one of the things that question's asked the the applicant to be specific about your information and our intelligence problem for example the need for criminal intelligence capacity and gauging in the information sharing think on homeland security the cops office there is a long track record of talking about ways in which increased in improved interactions with the community can help homeland security and you need a plan to do that was the was the bonus points for catastrophic incidents adopt in the wake of sandy hook is that one hundred years i don't think so your honor because it goes to the need for the grant what we would submit i think a fair reading of the statute is is the attorney general has discretion the grant based on the need for the grant and the strength of the grant proposal whether it is a good community oriented policing proposal strategy that's being put forward i think the catastrophic event condition considerations and everything else that the cops office has identified here is within its statutory authority except for illegal immigration is that correct and i think certainly nothing else is as has been challenged and i don't think anything else city should hire cops to be deployed as federal agents in enforcing immigration laws or the city should hire cops to honor detainers i'm not sure what how they how that would work but is that what you're saying it's there specific examples not just because i'm just wondering if maybe there pig be a strategy for not in forcing immigration law is necessarily bad involving an approach to communities where there were large number of non citizens  right your honor i think we have we have two distinct arguments on the focus area specifically in the first one and in our view the dispositive one so you don't need to go any further is that this focus area really is about these four activities that's what it says you need to identify a federal area where it's just you know any it a real community policing strategy to go after the problem of of illegal immigration i think that is a closer question one thing it does raise is these a p a issues where for example it is as you noted there is clear evidence is adopted and is are you aware of any record agencies the things considered in the things that it didn't do any record supplied in this case are all we have is the door declaration what i would add to that that it page one excuse me page eighteen of the supplemental excerpts of record which is the announcement in particular of the notice and access consideration where the attorney general sessions off explains what the purposes and it is not he does not say that well this is a this is really about community policing because community policing means partnerships he says we want to reward jurisdictions that cooperate with federal officials and incentivize other ones to do so so so so what we really see and that is the only other record evidence of what the agency was considering and what we have there is that this was an attempt to foster community oriented policing or adopt a community policing strategy what it really was is we like this policy we want states and local governments to cooperate in federal immigration with us and so we're going to we're going to treat our friends in this area better and punish those who are not willing to do what we think they should do the sizing i could see some kind of strategy community oriented policing strategy for dealing with population is in communities where there are large groups of non citizens living or working and you see coming up with some kind of a strategy like that but i don't know what strategy there is that exists that i strategy that the silicates honoring detainers honoring detainers is part of a partnership between local law enforcement and federal law enforcement and the cops office to find community oriented policing government is sufficient i'm saying that part of community oriented policing as the fine by the cops office and include an application year after year after year is evaluation of partnerships not only with community organizations you know if i go and see threes and other  n local organizations but also between among law enforcement agencies to have a comprehensive proactive strategy for combating public safety issues and this is in the record if you look at the r fifty seven if you look at the already two they asked specifically about consultation with or collaboration with the federal government and that that that did not start this year the other thing i would just say about the bonus points is that although the city has tried they cannot come up with a theory that explains many other features of the that are longstanding they cannot explain catastrophic event bonus points they cannot explain the bonus points for internal management practices that are twenty two and sixty seven they cannot explain the use of the veterans hiring preference prior to the statutory authorization which was done f y thirteen through sixteen s n e r twenty three they cannot explain nondiscrimination provision against faith based organizations that you are one twenty eight they can explain the seatbelt requirements for all employees that you are one twenty nine they cannot explain the school to prison pipeline prohibition that you are for date they don't have to explain all of that there are only challenging the ones you can act the government not to try seventeen they are and so the question i think for the court would be and for a lay would bonus points it is hard to see how indeed the entire set of questions all of which are scored is about twenty pages of questions starting at the are fifty four about what specific community or into place and strategies used throughout your department from internal management to partnerships to many