Case 3:17-cv-01535 Document 1 Filed 03/21/17 Page 1 of 32

1 JOSEPH W. COTCHETT (SBN 36324)
jcotchett@cpmlegal.com 2 NANCY L. FINEMAN (SBN 124870)
nfineman@cpmlegal.com 3 ALEXANDRA P. SUMMER (SBN 266485)
asummer@cpmlegal.com 4 CAMILO ARTIGA-PURCELL (SBN 273229)
cartigapurcell@cpmlegal.com 5 COTCHETT, PITRE & McCARTHY, LLP
San Francisco Airport Office Center 6 840 Malcolm Road, Suite 200
Burlingame, CA 94010 7 Telephone: (650) 697-6000
Facsimile: (650) 697-0577 8
BRUCE REED GOODMILLER (SBN 121491) 9 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA (SBN 231529) 10 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 11 450 Civic Center Plaza
P.O. Box 4046 12 Richmond, CA 94804
Telephone: (510) 620-6509 13 Facsimile: (510) 620-6518

14 Attorneys for Plaintiff

15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 16

CITY OF RICHMOND, a municipal 17 corporation,

Case No.

COMPLAINT FOR INJUNCTIVE AND

18

Plaintiff,

DECLARATORY RELIEF CONCERNING

19

vs.

FEDERAL EXECUTIVE ORDER 13768, for

20 DONALD J. TRUMP, President of the 1. VIOLATION OF THE TENTH

United States,

AMENDMENT;

21 JOHN F. KELLY, Secretary of the

United States Department of Homeland 2. VIOLATION OF THE SEPARATION OF

22 Security, JEFFERSON B. SESSIONS, Attorney

POWERS AND SPENDING CLAUSES;

23 General of the United States, and the
UNITED STATES OF AMERICA 24

3. VIOLATION OF THE FOURTH AMENDMENT;

Defendants.

25

4. VIOLATION OF THE DUE PROCESS

CLAUSE BECAUSE OF VAGUENESS;

26

AND

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5. RULING THAT RICHMOND COMPLIES WITH 8 U.S.C. § 1373.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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1

Table of Contents

2

Page

3 I. INTRODUCTION..............................................................................................................1

4 II. JURISDICTION AND VENUE........................................................................................4

5 III. PARTIES ............................................................................................................................4

6 IV. FACTUAL ALLEGATIONS............................................................................................5

7

A. RICHMOND IS A CITY OF IMMIGRANTS AND IMMIGRANTS’ TRUST IN

LAW ENFORCEMENT IS CRITICAL TO THE SAFETY OF THE

8

COMMUNITY ........................................................................................................5

9

B. IMMIGRANTS MAKE RICHMOND STRONG .................................................10

10

C. FEDERAL LAW DOES NOT REQUIRE RICHMOND TO COMPLY WITH

DETAINER REQUESTS ISSUED BY ICE .........................................................10

11

D. THE EXECUTIVE ORDER..................................................................................14

12

E. THE EXECUTIVE ORDER IS UNCONSTITUTIONAL BECAUSE IT

13

EXCEEDS THE AUTHORITY OF THE PRESIDENT AND CONGRESS .......18

14

1. The President Does Not Have the Authority to Issue the Executive

Order ..........................................................................................................18

15

2. Congress Does Not Have the Authority to Take the Actions in the

16

Executive Order .........................................................................................18

17

3. The Executive Order Is Unconstitutional Because It Violates the Tenth

and Fourth Amendments............................................................................20

18

F. INJURY TO RICHMOND CAUSED BY THE EXECUTIVE ORDER ..............21

19

G. THE COURT SHOULD DECLARE THE EXECUTIVE ORDER

20

UNCONSTITUTIONAL AND ENJOIN ENFORCEMENT .................................22

21 V. CLAIMS FOR RELIEF ..................................................................................................23

22 VI. PRAYER FOR RELIEF..................................................................................................29

23

24

25

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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I. INTRODUCTION

2

1. On January 25, 2017, President Donald J. Trump issued an Executive Order,

3 No. 13768 entitled “Enhancing Public Safety in the Interior of the United States,” 82 Fed.

4 Reg. 8799 (Jan. 25, 2017) (“Executive Order”), which, in violation of the Constitution, seeks to

5 force local police departments, such as the Richmond Police Department, to enforce federal

6 immigration law. A copy of the Executive Order is attached as Exhibit 1.

7

2. The ability of the Richmond police to effectively combat crime will be severely

8 curtailed by this Executive Order. In order to safeguard the safety of its residents and

9 community, the City of Richmond, California (“Richmond”), the plaintiff in this action, engages

10 in community policing. As its Police Chief Allwyn Brown recently explained: The Richmond

11 Police are:

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“Committed to a proven effective community policing model that knows the unmistakable truth, that community safety is a responsibility for everyone, and not just a job for the police. This requires active, engaged, and empowered neighborhood residents who freely interact with police without reservations.”

3. The Executive Order is in direct violation of the U.S. Constitution because it allows the Attorney General and Secretary of Homeland Security, based upon their discretion, to withhold federal funds from public entities that are jurisdictions who “willfully refuse” to comply with 8 U.S.C. 1373, a statute which seeks to regulate state and local jurisdictions’ response to immigration requests, and for the Attorney General to take enforcement actions against any jurisdiction that violates federal law. Our U.S. Supreme Court has said that this use of an Executive Order to coerce Richmond through a threat of the loss of all federal funds is unconstitutional. Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602-04 (2012). “When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the states to accept policy changes.” 132 S. Ct. at 2604.
4. The term “sanctuary jurisdiction” is not defined in the Executive Order or in any federal statute or regulation. While many public entities, including Richmond, have been referred to as “Sanctuary Cities” and Richmond is proud to support its immigrants, the policies

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1 of the different jurisdictions differ substantially. It is unclear if Richmond will be considered a

2 “sanctuary jurisdiction” subject to the loss of all federal funds. The Executive Order provides

3 no guidance to Richmond on how to make this determination and there is no legal precedent for

4 Richmond to consult to make this determination. Based upon statements made by President

5 Trump and others, Richmond believes it may be swept up as a sanctuary jurisdiction under the

6 Executive Order. The Executive Order violates the Due Process Clause because it is

7 unconstitutionally vague and unenforceable against a city like Richmond, California. Grayned

8 v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972).

9

5. Moreover, the Executive Order does not define what actions or inaction can be

10 considered by the Attorney General and Secretary of Homeland Security as a willful refusal to

11 comply with 8 U.S.C. § 1373 and there is no legal precedent defining what constitutes a willful

12 refusal to comply with 8 U.S.C. § 1373. Richmond does comply with 8 U.S.C. § 1373. This is

13 an additional reason that the Executive Order is unconstitutionally vague and unenforceable

14 pursuant to Supreme Court precedent.

15

6. Given the vagueness of the Executive Order and the discretion it provides to the

16 Attorney General and Secretary of Homeland Security to withhold federal funds, Richmond

17 faces imminent danger of losing all federal funding because of legislation that it enacted twenty-

18 five years ago to foster trust between its police department and residents. Richmond has already

19 been harmed by the uncertainty caused by the Executive Order. The Defendants intend to

20 immediately begin enforcing the Executive Order, and the Executive Order does not provide any

21 policies or procedures to challenge the findings of the Attorney General or Secretary of

22 Homeland Security. Accordingly, this Court is the only vehicle for Richmond to obtain relief to

23 stop the calamitous effects that the Executive Order will have on Richmond.

24

7. Richmond directly receives federal funds each year and also receives State funds,

25 most of which are passed through federal funds. The funds are used to fund vital services, and

26 only a small amount are used for law enforcement or immigration. Most are used for housing

27 and infrastructure improvements. The loss of these funds will have a direct and substantial

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effect on Richmond and its citizens. None of the grants of money by the federal government to

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1 Richmond were conditioned on Richmond’s compliance with any immigration law. The

2 Executive Order seeks to retroactively tie the receipt of federal funds to Richmond’s compliance

3 with the Executive Order, and specifically immigration laws, which is unconstitutional on its

4 face.

5

8. While Presidents have the ability to issue executive orders, the President’s power

6 “must stem either from any act of Congress or from the Constitution itself.” Youngstown Sheet

7 & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S. Ct. 863, 866 (1952). There is no authority from

8 an act of Congress or from the Constitution for President Trump to have issued the Executive

9 Order.

10

9. The Executive Order is an impermissible and illegal order because:

11

(1) the Executive Order violates the Tenth Amendment of the United States

12

Constitution;

13

(2) the Executive Order seeks to give two Cabinet members the unfettered

14

discretion to take away all federal funding from Richmond, a power that no branch of the

15

federal government has;

16

(3) the Executive Order impermissibly usurps the rights of the Legislative

17

branch regarding appropriating and spending monies thus violating the separation of

18

powers clause of the Constitution;

19

(4) the Executive Order violates the due process clause because it is

20

unconstitutionally vague in its definition of “sanctuary jurisdiction,” “willful refusal to

21

comply,” and the unfettered enforcement discretion it gives to the Attorney General and

22

Secretary of Homeland Security;

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(5) the Executive Order exposes Richmond to liability under the Fourth

24

Amendment of the United States Constitution for improperly detaining people; and

25

(6) the Executive Order imposes additional costs on Richmond to comply

26

with the Executive Order, which costs the federal government will not reimburse.

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10. In order to protect its residents, Richmond brings this action to have this Court

2 declare that the Executive Order is unconstitutional to find that Richmond complies with 8

3 U.S.C. § 1373, and to enjoin the Executive Order from being enforced against Richmond.

4

II. JURISDICTION AND VENUE

5

13. The Court has jurisdiction under 28 U.S.C. Sections 1331 and 1346. This Court

6 has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and

7 2202 et seq.

8

14. Venue properly lies within the Northern District of California because Plaintiff,

9 Richmond, is a public entity in this judicial district and a substantial part of the events or

10 omissions giving rise to this action will occur or have occurred in this District. 28 U.S.C. §

11 1391(e).

12

III.

PARTIES

13

15. Plaintiff City of Richmond is a municipal corporation organized and existing

14 under and by virtue of the laws of the State of California, and is a Charter Law city. Its

15 population is just over 100,000 people. Under its charter, it has the power to exercise police

16 powers and make all necessary police regulations. Richmond Charter Art. II, § 1, ¶ 6.

17

16. Defendant Donald J. Trump has been since January 20, 2017, the President of

18 the United States. He is sued in his official capacity. As a candidate, he railed against sanctuary

19 cities and promised to punish them, and has consistently made insensitive and false statements

20 about immigrants. When he announced his candidacy in June 2015, for example, he stated:

21 “The U.S. has become a dumping ground for everybody else’s problems. Thank you. It’s true,

22 and these are the best and the finest. When Mexico sends its people, they’re not sending their

23 best. They’re not sending you. They’re not sending you. They’re sending people that have lots

24 of problems, and they’re bringing those problems to us. They’re bringing drugs. They’re

25 bringing crime. They’re rapists. And some, I assume, are good people.” There was no factual

26 support for this statement.

27

17. Defendant John F. Kelly is the Secretary of the Department of Homeland

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Security, a cabinet department of the United States government with the primary mission of

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1 securing borders of the United States. Pursuant to the Executive Order at issue here, Secretary

2 Kelly is responsible for executing relevant provisions of the Executive Order. He is sued in his

3 official capacity.

4

18. Defendant Jefferson B. Sessions is the Attorney General, a cabinet department of

5 the United States Government overseeing the Department of Justice. Attorney General Sessions

6 is responsible for executing relevant provisions of the Executive Order. Attorney General

7 Sessions is sued in his official capacity.

8
9
10 A.
11
12

19. Defendant United States of America is sued under 28 U.S.C. Section 1346.
IV. FACTUAL ALLEGATIONS
RICHMOND IS A CITY OF IMMIGRANTS AND IMMIGRANTS’ TRUST IN LAW ENFORCEMENT IS CRITICAL TO THE SAFETY OF THE COMMUNITY

13

20. Incorporated in 1905, Richmond has been a place where people from all over the

14 world have come to seek a better life for themselves and their families and to contribute to the

15 society in the Bay Area. According to the American Community Survey, in 2015, over 30% of

16 Richmond residents were born in foreign counties.

17

21. Richmond, like the rest of the United States, is strong and successful because of

18 the diversity of the immigrants who have come to this country. Their hard work and innovation

19 have made the United States one of the greatest, if not the greatest, countries in the world. The

20 contributions of immigrants are too numerous to even try to list. Most economists agree that

21 immigrants, including those who are undocumented, are good for the U.S. economy. In March

22 2017, the Institution of Taxation & Economic Policy estimated that undocumented workers pay

23 $111.74 billion in taxes each year. In March 2017, the Pew Research Center issued a report

24 demonstrating that immigrants and their U.S.-born children are expected to drive growth in the

25 U.S. working-age population. http://www.pewresearch.org/fact-tank/2017/03/08/immigration-

26 projected-to-drive-growth-in-u-s-working-age-population-through-at-least-2035/. Since the

27 Baby Boomer generation (people born after World War II and before 1965) is heading towards

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1 retirement, there is a potential for the labor force to slow down without immigrants and their

2 children being part of the work force. Richmond and the Bay Area need this work force.

3

22. Richmond has always welcomed newcomers. In the 1940s, for example, people

4 came from all over the United States to help with the war effort by working in Richmond

5 facilities such as the Kaiser shipyards. They and their families stayed and have made positive

6 contributions to Richmond.

7

23. In the late 1980s, Richmond experienced an increase of immigrants arriving from

8 Central America. They sought sanctuary from the violence and political instability in their

9 native countries. Many of these immigrants had been the victims of political persecution. Since

10 they came to Richmond, they and their families have contributed to the success of Richmond.

11 Based upon their experience in their native countries, many of these immigrants were fearful of

12 law enforcement. They were easy prey for criminals who knew the immigrants were unlikely to

13 report crimes against them for fear that if they reported crimes or provided assistance to law

14 enforcement, they would be deported. It is critical to the safety of the community that everyone,

15 no matter their immigration status, trust law enforcement and provide information to keep

16 Richmond safe and free from crime.

17

24. In response to these immigrants’ concerns and to increase public safety, in 1990,

18 over 25 years ago, the Richmond City Council unanimously enacted Ordinance No. 29-90, an

19 ordinance whose purpose was to “foster an atmosphere of trust and cooperation between the

20 Richmond Police Department and all persons, regardless of immigration status, residing in the

21 City of Richmond; …” A true and correct copy of the Ordinance is attached as Exhibit 2.

22

25. Further, Ordinance No. 29-90 provided in pertinent part:

23

Section 2. In order to address the fears expressed by the immigrant and refugee

community in the City of Richmond concerning Immigration and Naturalization

24

Service activities in the City of Richmond while preserving the ability of the

Richmond Police Department to utilize all available resources to fight criminal

25

activity, the Council of the City of Richmond hereby adopts the following policy:

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1. All officers and employees of the City of Richmond, while acting in their official capacities, who receive any oral or written request from the Immigration and Naturalization Service for information, cooperation or assistance shall refer such request to the City Manager or the Chief of

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Police. The City Manager or Chief of Police shall decide whether such information shall be given or whether such cooperation or assistance shall

2

be provided to the Immigration and Naturalization Service. In exercising

their discretion, the City Manager and Chief of Police shall consider the

3

possible disruption and inconvenience that may be experienced by the

immigrant and refugee community in the City of Richmond and any

4

requirements of any federal, state or local law or court decision. Nothing

5

delineated in the foregoing policy shall be construed to prevent the City Manager or the Chief of Police from providing information, assistance or

6

cooperation to the Immigration and Naturalization Service regarding the

criminal violation of any federal, state or local law.

7

8

26. On February 6, 2007, in Resolution No. 11-07, the Richmond City Council

9 reaffirmed its commitment to its residents that the City “welcomes and values all of its residents

10 and supports them to live and work free from discrimination, hostility, abuse, violence,

11 exploitation and fear of local, state and federal law enforcement; …” A true and correct copy of

12 the Resolution is attached as Exhibit 3. In this resolution, the City of Richmond “reaffirms the

13 terms of ordinance No. 20-90 ordering all officers and employees of this City not to inform,

14 assist or cooperate with the Immigration and Customs Enforcement (ICE) formerly known as

15 Immigration and Naturalization Service, without the specific authorization of the Richmond City

16 Manager or the Chief of Police; …”

17

27. The ordinance and regulation were not to prevent the exchange of information

18 between the federal government and Richmond regarding immigration matters, but instead to

19 increase the trust between Richmond law enforcement and the community, thereby increasing

20 public safety. Federal immigration raids, like the 2003 raid on the Richmond home of Porfirio

21 Quintano, an immigrant from Honduras and his family, is but one example of the fear and

22 distrust in the immigrant community caused by improper immigration enforcement. As

23 Quintano explained in the San Francisco Chronicle: “‘We are victims,’ said Quintano, adding

24 that his wife and two daughters, then ages 4 and 10, live in fear of another raid, even though all

25 four family members are U.S. citizens. ‘They were looking for somebody unrelated to us, but

26 they lined us up against the wall and held us for an hour. It was terrifying, especially for our

27 daughters.’” San Francisco Chronicle (Apr. 23, 2007).

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1

28. In the 25 years since the enactment of Ordinance 29-90, the federal government

2 has taken no action until now to stop the Richmond policy, and the policy has served Richmond

3 and the nation well. The Richmond policy co-existed with the immigration policies of both

4 Bush administrations as well as those of Presidents Clinton and Obama. Studies show that trust

5 between law enforcement and those that they serve is key to decreasing crime and to making

6 communities safe. See e.g. Bill O. Hing, “Immigration Sanctuary Policies: Constitutional and

7 Representative of Good Policing and Good Public Policy, 2 U.C. Irvine L. Rev. 247 (2012). The

8 final report of the President’s Task Force on 21st Century Policy (May 2015) explains:

9

Immigrants often fear approaching police officers when they are victims of and

10

witnesses to crimes and when local police are entangled with federal immigration

enforcement. At all levels of government, it is important that laws, policies, and

11

practices not hinder the ability of local law enforcement to build the strong

relationships necessary to public safety and community well-being. It is the view

12

of this task force that whenever possible, state and local enforcement should not

be involved in immigration enforcement. 13

14 The United States Department of Justice, Community Oriented Policy Services (COPS),

15 published a report “Policy in New Immigrant Communities” by Matthew Alysalcowski, Albert

16 Anthony Pearsall III and Jill Pope. The report provides suggestions to law enforcement about

17 better serving the community, focusing on building trust and mutual respect between law

18 enforcement and new immigrants. The report states that putting fears to rest is one of the most

19 useful things law enforcement can do. “For many immigrants, reassurance that they will not be

20 detained or deported removes the fear of reporting crimes.” Report at 11.

21

29. Richmond is not the only public entity to enact laws regarding the relationship

22 between the public entity and ICE. Numerous other California counties and cities, such as

23 Alameda County, Berkeley, Los Angeles County, Los Angeles, Monterey County, Napa County,

24 Orange County, Riverside County, Sacramento County, San Bernardino County, San Diego

25 County, San Francisco City and County, San Mateo County, Santa Ana, Santa Clara County,

26 Santa Cruz County, and Sonoma County, have enacted similar laws. Other cities in the United

27 States, such as Boston, Chicago, Houston, New York, Philadelphia, and Washington D.C., to

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name a few, have also enacted similar laws. Even though they are similar, they are not identical.

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1 There is no way to determine by the language of the Executive Order if any of these jurisdictions

2 are “sanctuary jurisdictions.”

3

30. The State of California also has enacted legislation, specifically Government

4 Code sections 7282 and 7282.5 both effective January 1, 2014, regarding information that law

5 enforcement can provide federal immigration officials. Section 7282.5 provides that a “law

6 enforcement official shall have discretion to cooperate with federal immigration officials by

7 detaining an individual on the basis of an immigration hold after that individual becomes

8 eligible for release from custody only if the continued detention of the individual on the basis of

9 the immigration hold would not violate any federal, state, or local law, or any local policy, and

10 only under ….” certain specified circumstances. The notes to section 7282, which provides

11 definitions for the chapter, sets forth the Legislative Findings for these statutes.

12

SECTION 1. The Legislature finds and declares all of the following:

13 (a) The United States Immigration and Customs Enforcement’s (ICE) Secure

14

Communities program shifts the burden of federal civil immigration enforcement

onto local law enforcement. To operate the Secure Communities program, ICE

15

relies on voluntary requests, known as ICE holds or detainers, to local law

16

enforcement to hold individuals in local jails for additional time beyond when they would be eligible for release in a criminal matter.

17 (b) State and local law enforcement agencies are not reimbursed by the federal

18

government for the full cost of responding to a detainer, which can include, but is

not limited to, extended detention time and the administrative costs of tracking

19

and responding to detainers.

20

21

31. The Department of Justice, under the previous administration, has already

22 identified the State of California as a jurisdiction that does not fully comply with federal

23 immigration enforcement priorities. Memorandum from Michael E. Horowitz, Inspector Gen.,

24 to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs, “Department of

25 Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients,”

26 at 13 (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf (“Horowitz Memorandum”).

27 Since Richmond receives federal funds that are passed through the State of California,

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1 Richmond faces the loss of funds under the Executive Order even if it complies with all

2 requirements of the Executive Order.

3 B. IMMIGRANTS MAKE RICHMOND STRONG

4

32. Immigrants have been, since the establishment of our country, critical to the

5 United States and specifically Richmond. The same false statements being made today about

6 immigrants were made about Italians, Irish, Jews, and other ethnicities in the late 1800’s and

7 early 1900’s.

8

33. In April of 2016, the U.S. Chamber of Commerce published a report entitled

9 Immigration Myths and Faces, www.uschamber.com/reports/immigration-myths. The report

10 demonstrates that most common negative contentions regarding immigrants are false.

11

34. For example, with citation to evidence, the Chamber of Commerce demonstrates

12 that immigrants do not take away jobs from U.S. citizens, do not drive down the wages of the

13 U.S. workers, but to the contrary, immigrants are necessary for the U.S. economy.

14

35. The Chamber also demonstrates that immigrants, even undocumented

15 immigrants, pay taxes. Undocumented immigrants are not eligible for federal public benefit

16 programs like Social Security, Medicaid, Medicare, and food stamps.

17

36. The Chamber report demonstrates that the premise of the Executive Order, that

18 undocumented immigrants commit crimes, is contradicted by the facts. FBI data demonstrates

19 that as the number of undocumented immigrants, tripled from 1990 violent crime declined 48%

20 and property crime declined 41%. A report from the conservative Americas Majority

21 Foundation found that crime rates are lowest in states with the highest immigration growth rates.

22 Immigrants are less likely than people born in the United States to commit crimes or be

23 incarcerated.

24 C.
25

FEDERAL LAW DOES NOT REQUIRE RICHMOND TO COMPLY WITH DETAINER REQUESTS ISSUED BY ICE

26

37. ICE is an agency in the Department of Homeland Security and enforces federal

27 immigration law. Federal law provides specific rules regarding the detention and removal of

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people who do not have the legal right to be in this country.

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38. Not all people living in the United States who are undocumented are subjected to

2 deportation. See e.g. 8 U.S.C. § 1229b(a) (providing Attorney General with discretion to cancel

3 removal of an undocumented immigrant who is otherwise inadmissible or subject to deportation

4 if he or she meets specified requirements); § 1229b(b)(2) (providing Attorney General with

5 discretion to cancel removal and adjust status of an undocumented immigrant who is a victim of

6 domestic violence). There are also other ways that undocumented immigrants can legally stay in

7 the United States.

8

39. ICE often asks local jurisdictions for information about people who have been

9 arrested. Richmond does not have a policy against and would not refuse to categorically to

10 honor these requests, but requires that any request be brought to the attention of the City

11 Manager or Chief of Police, who make a determination about what information will be provided.

12 Richmond Ordinance No. 29-90, Resolution No. 11-07.

13

40. ICE also often issues “detainer requests” to local jurisdictions. These detainer

14 requests ask local law enforcement agencies to continue to detain an immigrant inmate for up to

15 48 additional hours after his or her regularly scheduled release date so that ICE can decide

16 whether to take that individual into custody and initiate removal proceedings. A detainer request

17 is different than a criminal warrant because a detainer request is not issued by a judge based

18 upon a finding of probable cause.

19

41. A public entity has discretion in how it complies with immigration holds. As

20 stated by Flores v. City of Baldwin Park, No. CV 14-9290-MWF(JCx), 2015 U.S. Dist. LEXIS

21 22149, at *11-12 (C.D. Cal. Feb. 23, 2015): “[F]ederal law leaves compliance with immigration

22 holds wholly within the discretion of states and localities. See Galarza v. Szalczyk, 745 F.3d

23 634, 640-43 (3d Cir. 2014) (holding that ‘immigration detainers are requests and not mandatory

24 orders’ and observing that ‘all federal agencies and departments having an interest in the matter

25 have consistently described such detainers as requests’); Immigration Law, 127 Harv. L. Rev.

26 [2593] at, 2596-97 [June 2014] (‘And even if ICE wanted to make detainer enforcement

27 mandatory, prevailing Tenth Amendment jurisprudence—which prohibits ‘command[ing] the

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States’ officers, or those of their political subdivisions, to administer or enforce a federal

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1 regulatory program’—indicates that it could not do so. States are thus free to decide for

2 themselves whether to limit—or even prohibit—the enforcement of detainers.’)” (bracket

3 materials added). As a general matter, ICE has not directed detainer requests to Richmond.

4

42. The fact that a person is an undocumented immigrant does not mean that the

5 person is subject to detention. Most of the time, people who are suspected of being removable

6 are not arrested; arrests only occur in certain circumstances and are only performed by federal

7 officers specifically trained in immigration law. As the Supreme Court has explained:

8

As a general rule, it is not a crime for a removable alien to remain present in the United

9

States. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 82 L. Ed. 2d

778 (1984). If the police stop someone based on nothing more than possible

10

removability, the usual predicate for an arrest is absent. When an alien is suspected of

being removable, a federal official issues an administrative document called a Notice to

11

Appear. See 8 U. S. C. § 1229(a); 8 CFR § 239.1(a) (2012). The form does not authorize

12

an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. § 1229(a)(1). If an alien fails to appear,

13

an in absentia order may direct removal. § 1229a(b)(5)(A).

14

The federal statutory structure instructs when it is appropriate to arrest an alien during

the removal process. For example, the Attorney General can exercise discretion to issue a

15

warrant for an alien's arrest and detention “pending a decision on whether the alien is to

16

be removed from the United States.” 8 U. S. C. § 1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial

17

Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency

for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter

18

2011 ICE Memorandum) (describing factors informing this and related decisions). And

if an alien is ordered removed after a hearing, the Attorney General will issue a warrant.

19

See 8 CFR § 241.2(a)(1). In both instances, the warrants are executed by federal officers

20

who have received training in the enforcement of immigration law. See §§ 241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited

21

authority. See 8 U. S. C. § 1357(a). They may arrest an alien for being “in the United

States in violation of any [immigration] law or regulation,” for example, but only where

22

the alien “is likely to escape before a warrant can be obtained.” § 1357(a)(2).

23 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2505-06 (2012).

24

43. Even though Supreme Court precedent is clear, the Department of Justice, under

25 the prior Presidential Administration, opined that failure to comply with detainer requests

26 violates federal law. Horowitz Memorandum at 7.

27

44. The Richmond Police Department Policy Manual, Policy 428 specifically

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addresses Immigration Violations. A true and correct copy of the policy is attached hereto as

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1 Exhibit 4. It provides that it is the “policy of the Richmond Police Department (RPD) to foster

2 trust and cooperation with all people of the city and to encourage them to communicate with

3 RPD officers without fear of inquiry regarding their immigration status.” Id. § 428.1. “It is also

4 department policy, consistent with its obligations under state and federal law, to adhere to the

5 City of Richmond Ordinance 29-90. This ordinance prohibits the use of City resources to assist

6 in the enforcement of federal immigration laws without the specific authorization of the City

7 Manager or the Chief of Police.” Id.

8

45. The policy does not prohibit assisting ICE. “When assisting ICE at its specific

9 request, or when suspected criminal violations are discovered as a result of inquiry or

10 investigation based on probable cause originating from activities other than the isolated

11 violations of 8 USC § 1304; 8 USC § 1324; 8 USC § 1325 and 8 USC § 1326, the department

12 may assist in the enforcement of federal immigration laws.” Id., § 428.2. The policy provides

13 that the Richmond Police Department “does not conduct immigration ‘sweeps’ or engage in

14 other concerted efforts to identify or detain suspected undocumented individuals.” Id., §

15 428.2.1; see also id., § 428.2.2.

16

46. The policy reiterates the police department’s concern “for the safety of local

17 citizens and thus detection of criminal behavior is of primary interest in dealing with any

18 person.” Id., § 428.4. Arrests should be based upon probable cause and not on arbitrary

19 characteristics, such as race or ethnicity and “all individuals, regardless of their immigration

20 status, must feel secure that contacting law enforcement will not make them vulnerable to

21 deportation.” Id.

22

47. The policy is explicit that: “Nothing in this policy is intended to restrict officers

23 from exchanging legitimate law enforcement information with any other federal, state or local

24 government entity (8 USC § 1373; 8 USC § 1644). Id.

25

48. Thus, Richmond has made a policy decision that the safety of its residents

26 requires trust between its policy department and all residents, whether they are United States

27 citizens, legal residents, or undocumented. Additionally, Richmond’s policy is to comply with

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all laws, including 8 U.S.C. § 1373. Since ICE has not in the past asked Richmond for

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1 information or issued detainer requests, Richmond has not violated 8 U.S.C. § 1373 or any other

2 federal law.

3 D. 4

THE EXECUTIVE ORDER 49. On January 25, 2017, defendant President Donald J. Trump issued Executive

5 Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” That

6 Executive Order was published in the Federal Register on January 30, 2017, at 82 Fed. Reg.

7 8799. It is available on the White House public website (https://www.whitehouse.gov/the-press-

8 office/2017/01/25/Presidential-executive-order-enhancing-public-safety-interior-united), and is

9 attached hereto as Exhibit 1.

10

50. The Executive Order declares, “Sanctuary jurisdictions across the United States

11 willfully violate Federal law in an attempt to shield aliens from removal from the United States.

12 These jurisdictions have caused immeasurable harm to the American people and to the very

13 fabric of our Republic.”

14

51. To address the purported harm caused by Sanctuary Cities, the Executive Order

15 establishes the policy that “jurisdictions that fail to comply with applicable Federal law do not

16 receive Federal funds, except as mandated by law.”

17

52. Specifically, Section 9(a) of the Executive Order states: “It is the policy of the

18 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision

19 of a State, shall comply with 8 U.S.C. 1373.” 8 U.S.C. § 1373 prohibits local jurisdictions from

20 prohibiting the exchange of information with ICE regarding citizenship or immigration status.

21

53. Section 9(a) of the Executive Order establishes a funding restriction:

22

In furtherance of this policy, the Attorney General and the Secretary, in their

discretion and to the extent consistent with law, shall ensure that jurisdictions that

23

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law

24

enforcement purposes by the Attorney General or the Secretary. The Secretary

has the authority to designate, in his discretion and to the extent consistent with

25

law, a jurisdiction as a sanctuary jurisdiction. Id.

26 / / /

27 / / /

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1

54. Section 9(a) of the Executive Order also mandates enforcement action for

2 violations:

3

The Attorney General shall take appropriate enforcement action against any

entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or

4

practice that prevents or hinders the enforcement of Federal law. Id.

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55. Defendant John F. Kelly, the Secretary of Homeland Security has already begun implementing the Executive Order. On February 20, 2017, he issued two memoranda to implement the Executive Order. The first memorandum is entitled “Enforcement of the Immigration Law to Serve the National Interest.” A true and correct copy of this memorandum, which will be referred to as the “Enforcement Memorandum” can be found at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-theImmigration-Laws-to-Serve-the-National-Interest.pdf and is attached hereto as Exhibit 5. The second memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” A true and correct copy of this memorandum, which will be referred to as the “Implementation Memorandum” can be found at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-PresidentsBorder-Security-Immigration-Enforcement-Improvement-Policies.pdf and is attached hereto as Exhibit 6.
56. The Enforcement Memorandum does not reference “sanctuary jurisdictions” or provide any guidance about how the Secretary of Homeland Security will use its discretion to determine that a local jurisdiction should lose all federal funds because of that jurisdictions’ “failure to comply with applicable Federal Law.”
57. The Enforcement Memorandum states that it will be expanding the INA section 287(g) Program. This program “allows a qualified state or local law enforcement officer to be designated as an ‘immigration officer’ for purposes of enforcing federal immigration law. Such officers have the authority to perform all law enforcement functions specified in section 287(a) of the INA, including the authority to investigate, identify, apprehend, arrest, detain, and conduct searches authorized by under the INA, under the direction and supervision of the

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1 Department.” The program is voluntary; currently 32 law enforcement agencies in 16 states

2 participate.

3

58. The Enforcement Memorandum further provides that: “Department personnel

4 have full authority to arrest or apprehend an alien whom an immigration officer has probable

5 cause to believe is in violation of immigration laws.”

6

59. The Enforcement Memorandum also provides: “I direct the Director of ICE to

7 immediately reallocate any and all resources that are currently used to advocate on behalf of

8 illegal aliens (except as necessary to comply with a judicial order) to the new VOICE [Victims

9 of Immigration Crime Engagement] Office, and to immediately terminate the provision of such

10 outreach or advocacy services to illegal aliens.” [bracketed materials added]

11

60. The Implementation Memorandum primarily deals with the building of a wall

12 between the United States and Mexico, the hiring of additional Border Patrol Agents, and

13 expediting undocumented immigrants to their native countries. The Implementation

14 Memorandum does not provide any guidance regarding the implementation of the Executive

15 Order as it applies to Richmond.

16

61. Since the Executive Order, the Enforcement and Implementation Memoranda,

17 and federal law and regulations do not provide any guidelines to State and local jurisdictions

18 regarding the criteria that will be used to determine when federal funds will be taken away or

19 enforcement actions will be taken, Richmond must try to glean this information from other

20 public statements of Defendants.

21

62. Based upon the public statements of Defendants, they intend to broadly define

22 jurisdictions that do not comply with federal immigration law and to punish those jurisdictions

23 with the withdrawal of all federal funds. Since as early as 2015, when he was a candidate for the

24 Republican nominee for President, Donald Trump railed against “Sanctuary Cities.” As set

25 forth, supra, he called Mexican immigrants rapists, which statement is not supported by the

26 evidence. He promised to punish these jurisdictions.

27

63. Since President Trump’s inauguration, his office has reaffirmed these statements.

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For example, on January 25, 2017, when announcing the issuance of the Executive Order, the

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1 President’s Press Secretary said: “We are going to strip federal grant money from the sanctuary

2 states and cities that harbor illegal immigrants. The American people are no longer going to

3 have to be forced to subsidize this disregard for our laws.”

4

64. A press release from the White House on January 28, 2017 stated that the

5 executive order was going to halt federal funding for “sanctuary cities.” The reference to

6 “sanctuary cities in the Press Release implies that the President considers “sanctuary cities” to

7 be the same as “sanctuary jurisdictions,” which is the term used in the Executive Order. The

8 same conflation between “sanctuary cities” and “sanctuary jurisdictions” occurred in a press

9 release issued by the White house on February 1, 2017 and the term “sanctuary cities” is on the

10 White House website: http://wwwwhitehouse.gov/law-enforcement-community.

11

65. President Trump, during an interview with Bill O’Reilly on February 5, 2017,

12 also referenced “sanctuary cities” rather than “sanctuary jurisdictions” when referring to the

13 Executive Order. He also specifically referred to proposed legislation by the California

14 legislature regarding immigration as “ridiculous” and referred to the “tremendous amounts of

15 money” the federal government gives to California.

16

66. Immediately prior to becoming the Attorney General, Defendant Jefferson B.

17 Sessions, was a U.S. Senator. In July of 2015, he introduced Senate Bill 1842, the “Protecting

18 American Lives Act.” With regards to the bill and in other statements regarding immigration,

19 Attorney General Sessions indicated an intent to punish local jurisdictions, such as Richmond,

20 which had enacted ordinances which demonstrated concern for immigrants.

21

67. Based upon the evidence, it appears there is a substantial probability that

22 Defendants, and each of them, will seek to enforce the unconstitutional Executive Order against

23 Richmond based upon its enactment of Ordinances No. 29-90 and Resolution No. 11-07,

24 Richmond being referred to as a “sanctuary city,” and its large Latino population. While

25 Richmond does not believe that it has willfully refused to follow any federal law, the statements

26 by Defendants imply that simply enacting an ordinance like Ordinance No. 29-90 and

27 Resolution No. 11-07 will provide the basis for Defendants to enforce the Executive Order

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against Richmond.

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1 E. 2

THE EXECUTIVE ORDER IS UNCONSTITUTIONAL BECAUSE IT EXCEEDS THE AUTHORITY OF THE PRESIDENT AND CONGRESS

1. The President Does Not Have the Authority to Issue the Executive Order 3
68. The federal system is a system of checks and balances. Our founders wanted to 4
stop the President from being able to exercise unbridled discretion like the King from whom 5
they had just won their freedom. Therefore, the Constitution limits the power of the President. 6
Under Article I, section 8, clause 1 of the United States Constitution, Congress, not the 7
President, has the authority to appropriate and spend federal monies. President Trump exceeded 8
his constitutional authority by the enactment of the Executive Order because it is not authorized 9
by any act of Congress or the Constitution. Hence, the Executive Order is unconstitutional. 10
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S. Ct. 863, 866 (1952). 11
69. The President may also not unilaterally impose new restrictions on jurisdictions’ 12
eligibility for federal funding because any restrictions on federal funds must be done so in 13
advance by Congress. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 171 101 S. Ct. 14
1531 (1981). The President may not on his own impose restrictions when Congress has not 15
acted. The President does not have “unilateral power to change the text of duly enacted 16
statutes.” Clinton v. City of New York, 524 U.S. 417, 447 (1998). 17

2. Congress Does Not Have the Authority to Take the Actions in the Executive

18

Order

19

70. The Executive Order is also unconstitutional because not even Congress would

20 have the authority to enact the Executive Order as legislation.

21

71. Once Congress has authorized money to a State, county or city and it has been

22 accepted, Congress cannot impose new conditions on the receipt of the monies. The taking

23 away of funds violates the Spending Clause by imposing new funding conditions on existing

24 appropriations of federal funds. “[I]f Congress intends to impose a condition on the grant of

25 federal moneys, it must do so unambiguously,” in advance. Pennhurst State Sch. & Hosp. v.

26 Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531 (1981) “The legitimacy of Congress’ power to

27 legislate under the spending power . . . rests on whether the State voluntarily and knowingly

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accepts” Congress’s conditions. Id. “There can, of course, be no knowing acceptance if a State

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Case 3:17-cv-01535 Document 1 Filed 03/21/17 Page 21 of 32

1 is unaware of the conditions or is unable to ascertain what is expected of it.” Id. The Executive

2 Order thus violates the Spending Clause because it seeks to take away monies already

3 authorized and accepted by Richmond.

4

72. Further, even if Congress enacted legislation paralleling the Executive Order, the

5 legislation would be unconstitutional because Congress cannot impose conditions to the

6 acceptance of federal funds when those conditions are unrelated to the purpose for which the

7 funds are given. See South Dakota v. Dole, 483 U.S. 203, 208-09 & n.3 (1987) (“[T]he imposition

8 of conditions under the spending power” must be ‘germane’ or ‘related’ to the purpose of federal

9 funding.”). The Executive Order threatens the loss of all federal funds, not only those related to the

10 purposes of the Executive Order, which purpose is related to immigration.

11

73. The Executive Order’s threat to strip Richmond of all federal funds and bring

12 enforcement actions against it for violation of Federal laws is also unconstitutional. Congress

13 also cannot use coercion or a “power akin to undue influence” to force States, counties or cities

14 to act in accordance with federal policies. Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519,

15 132 S. Ct. 2566, 2602 (2012).

16

74. Under the United States’ Constitution, Congress cannot compel state officials to

17 execute federal law. Printz v. United States, 521 U.S. 898, 138 L. Ed. 2d 914, 117 S. Ct. 2365

18 (1997). “In providing for a stronger central government, therefore, the Framers explicitly chose

19 a Constitution that confers upon Congress the power to regulate individuals, not States. As we

20 have seen, the Court has consistently respected this choice. We have always understood that

21 even where Congress has the authority under the Constitution to pass laws requiring or

22 prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit

23 those acts.” New York v. United States, 505 U.S. 144, 166, 112 S. Ct. 2408, 2423 (1992). The

24 Executive Order violates these principles of federalism and state sovereignty and is

25 unconstitutional.

26 / / /

27 / / /

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3. The Executive Order Is Unconstitutional Because It Violates the Tenth and Fourth Amendments
75. The Executive Order is also unconstitutional because it violates the Tenth Amendment of the Constitution. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This Amendment preserves the sovereignty of the States and local governments, but the Executive Order seeks to interfere with the States’ and local jurisdictions’ sovereignty.
76. The Executive Order is also unconstitutional because it forces jurisdictions to keep people in custody who otherwise would be released, thus potentially exposing the jurisdictions to liability under the Fourth Amendment. This is not an idle concern. Public entities may be liable under the Fourth Amendment for honoring an ICE civil detainer request. Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014); see Morales v. Chadbourne, 793 F.3d 208, 215-216 (1st Cir. 2015); Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S. Dist. LEXIS 2438, at *23-24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861, 887 (N.D. Cal. 2016).
77. The federal government has made clear that the local agency bears the financial burden of the detention, providing that “[n]o detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal obligation on the part of the Department.” 8 C.F.R. § 287.7(e). The federal government also will not indemnify local governments or its officials against constitutional claims, even when they arise directly out of actions the local government has taken at the direction of the federal government.
78. The Executive Order is unconstitutional because it coerces Richmond to implement federal immigration policy. The Executive Order provides that federal funds will be withheld from jurisdictions that failed to comply with federal law, including specifically 8 U.S.C. § 1373. Executive Order, § 9(a). However, nothing in 8 U.S.C. § 1373 conditions any federal funding on complying with 8 U.S.C. § 1373 and no federal funds which Richmond receives are conditioned with Richmond complying with 8 U.S.C. § 1373. In fact, in light of the

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1 plain language of the statute, there can be no requirement that as a condition of receiving federal

2 funds, a jurisdiction comply with 8 U.S.C. § 1373. If the Executive Order is allowed to stand,

3 its implementation would impermissibly intrude on Richmond’s exercise of powers conferred

4 upon it by the State of California, and would unlawfully restrict Richmond’s ability to shape

5 local government according to Richmond’s needs and policy mandates of its residents.

6 F. 7

INJURY TO RICHMOND CAUSED BY THE EXECUTIVE ORDER 79. The Executive Order has created fear and confusion regarding the actions that

8 Defendants Attorney General Sessions and Secretary of Homeland Security Kelly, acting on

9 behalf of Defendant United States, will take against state and local governments, like Richmond,

10 who have enacted ordinances to promote trust between law enforcement and the community.

11

80. Richmond has been forced to expend resources as a result of the Executive Order

12 because the Executive Order has created an atmosphere of fear and distrust in the immigrant

13 community. The positive effects created by Ordinance No. 29-90 and Resolution No. 11-07 in

14 the relationship between law enforcement and the immigrant community have started to

15 dissipate as a result of the Executive Order. The Executive Order has the effect of discouraging

16 immigrants from reporting crimes and cooperating with law enforcement, which harms public

17 safety.

18

81. Richmond has also been forced to expend resources to determine how it will

19 provide vital municipal services if Defendant Attorney General Sessions and/or Defendant

20 Secretary of Homeland Security Kelly, acting on behalf of Defendant United States, use their

21 unbridled discretion, and determine that Richmond is a “sanctuary jurisdiction,” which has

22 willfully violated federal law, and then withhold federal funds.

23

82. Richmond is dependent on federal and state funds to provide critical services to

24 its residents. From July 1, 2013 through June 30, 2014, it received over $28 million in federal

25 funds. For the same period, it received over $18 million in state funds, many of these funds are

26 pass-through federal funds. In a report prepared by the California State Controller in July 2016,

27 found at http://www.sco.ca.gov/Files AUD/07_2016_richmond_state_and_federal_

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expenditures.pdf, the Controller breaks down the federal funds.

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1

83. For fiscal year 2016-2017, Richmond has been granted federal grants for street

2 improvements, community oriented policing, low income public housing, housing choice

3 voucher programs, home repairs, and other services.

4

84. Richmond’s fiscal year runs from July 1 until June 30. Richmond begins its mid-

5 year budget review in February of each year and holds its first budget hearings for the upcoming

6 year in March. The City Council reviews and discusses the budget in May and June with final

7 approval of the budget in early July. Thus, Richmond is in the midst of its budget process.

8 Richmond is already facing budget issues and the potential that Richmond may be declared a

9 “sanctuary jurisdiction” and have all federal funding stopped is causing uncertainty to

10 Richmond’s budget. Richmond is facing the prospect of sweeping cuts if federal funding ends.

11 Richmond has no alternative source of funding or reserves to make-up for the loss of federal

12 funding and, therefore, the loss of federal funding would be immediate and devastating to

13 Richmond and its residents.

14

85. The Executive Order’s threat to cut federal funds is manifestly coercive and,

15 therefore unconstitutional. The Executive Order’s direction to the Attorney General to take

16 “appropriate enforcement action against any entity … which has in effect a statute, policy or

17 practice that prevents or hinders the enforcement of Federal law” presents an immediate harm to

18 Richmond. Richmond needs to make budget decisions regarding next year’s budget without

19 having any direction about whether it complies with the Executive Order or whether the

20 Executive Order will be enforced against Richmond and, if so, in what manner.

21 G. 22

THE COURT SHOULD DECLARE THE EXECUTIVE ORDER UNCONSTITUTIONAL AND ENJOIN ENFORCEMENT

23

86. There exists a present controversy between Defendants and Richmond because,

24 based upon statements made by Defendants, Defendants, for purposes of enforcing the Executive

25 Order, consider Richmond a sanctuary jurisdiction which is willfully violating the law.

26 Richmond has been considered a Sanctuary City, but it believes that its ordinances comply with

27 the law and permissibly use the discretion granted to Richmond by the United States Constitution

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and judicial precedent to make decisions regarding the safety of its community. Richmond

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1 believes it complies with 8 U.S.C. § 1373. The Executive Order is unconstitutionally vague in

2 that it fails to tell Richmond what it must do or not do to retain federal funds. There are no

3 administrative remedies that Richmond can seek under the Executive Order. Therefore,

4 Richmond seeks a declaration that the Executive Order is unconstitutional and unenforceable and

5 also that Richmond believes it complies with 8 U.S.C. § 1373. This judicial declaration is

6 necessary and appropriate at this time because of the imminent and irreparable harm that

7 Richmond will face if the Executive Order is implemented against Richmond and all federal

8 funds are cut off.

9

87. Richmond has no adequate or speedy remedy at law to stop the conduct of

10 Defendants because the Executive Order provides no procedure for review or appeal. This action

11 is Richmond’s only way of securing prospective relief. Richmond has suffered actual harm by

12 the issuance of the Executive Order and will continue to suffer extreme hardship and impending

13 irreparable injury if the Executive Order is enforced because the Executive Order is

14 unconstitutional and impermissibly seeks to take away Richmond’s federal funding. The loss of

15 federal funding on Richmond would be devastating. Therefore, Richmond seeks a temporary,

16 preliminary, and permanent injunction enjoining the enforcement of the Executive Order against

17 Richmond. 18 19 20 21

V. CLAIMS FOR RELIEF (All Claims Are Against All Defendants)
FIRST CLAIM FOR RELIEF
For Injunctive and Declaratory Relief Based on Violation of the Tenth Amendment

22

88. Plaintiff repeats and incorporates by reference each allegation of the prior

23 paragraphs as if fully set forth herein.

24

89. The Tenth Amendment preserves state’s and local government’s sovereignty and

25 limits the federal government’s ability to control local governments’ actions. Under the Tenth

26 Amendment, “Congress may not simply commandeer the legislative process of the States by

27 directly compelling them to enact and enforce a federal regulatory program.” New York v.

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United States, 505 U.S. 144, 161, 112 S. Ct. 2408 (1992) (internal quotation omitted). “The

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1 commandeering cases involve attempts by Congress to direct states to perform certain functions,

2 command state officers to administer federal regulatory programs, or to compel states to adopt

3 specific legislation.” Raich v. Gonzales, 500 F.3d 850, 867 n. 17 (9th Cir. 2007). The Executive

4 Order violates the Tenth Amendment.

5

90. The Tenth Amendment applies to Richmond. Printz v. United States, 521 U.S.

6 898, 931, n. 15, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997); City of Santa Cruz v. Gonzales, No.

7 C 03-01802 JF, 2007 U.S. Dist. LEXIS 66414 (N.D. Cal. Aug. 30, 2007).

8

91. The Executive Order exceeds the power of the President or any federal branch of

9 government because the Executive Order requires state and local governments to affirmatively

10 assist federal immigration officials by, inter alia, complying, at their own expense, with ICE

11 detainer requests. In Section 9(a) of the Executive Order, the “Attorney General shall take

12 appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in

13 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law.” By

14 demanding that state and local governments, including Richmond, detain individuals who may

15 be subject to removal at the request of federal officials even if those individuals would otherwise

16 be subject to release from custody and by ordering the Attorney General to take enforcement

17 action against state and local governments which do not comply, the Executive Order

18 commandeers state and local officials in furtherance of a federal regulatory program in violation

19 of the Tenth Amendment to the United States Constitution.

20

92. The Executive Order also requires that state and local governments take action to

21 avoid preventing or hindering the federal government in the enforcement of Federal law.

22 Executive Order, § 9(a). This requirement forces local officials to act as an arm of the federal

23 government, which violates the Tenth Amendment. The federal government cannot use the

24 appropriation of money as a threat to coerce Richmond to act in a certain way. This use of an

25 Executive Order to coerce Richmond through a threat of the loss of all federal funds is

26 unconstitutional. Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602-04

27 (2012).

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_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

24

Case 3:17-cv-01535 Document 1 Filed 03/21/17 Page 27 of 32

1

93. The Executive Order further impermissibly seeks to interfere with Richmond’s

2 policy decisions in enacting Ordinance No. 29-90 and Resolution No. 11-07, which further

3 legitimate local concerns and interests. This federal interference impermissibly penalizes state

4 and local governments that are deemed to “prevent or hinder” the enforcement of federal law

5 and thus impermissibly coerces state and local governments to adopt policies and practices that

6 support the Executive Order to the subordination of state and local government interests.

7

94. The Executive Order additionally interferes with Richmond’s ability to budget.

8 If it is forced to keep people in custody as a result of an ICE detention request, Richmond must

9 pay for these additional costs to detain. These costs are hundreds of dollars per day. If

10 Richmond is forced to incur these costs, it will have less money to spend on services for its

11 residents.

12

95. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

13 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

14 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

15

WHEREFORE, Richmond prays for relief as hereinafter set forth.

16

SECOND CLAIM FOR RELIEF

17

For Injunctive and Declaratory Relief Based on the Separation of Powers

And Spending Clauses 18

19

96. Plaintiff repeats and incorporates by reference each allegation of the prior

20 paragraphs as if fully set forth herein.

21

97. The Executive Order Section 2(c) states: “It is the policy of the executive branch

22 to . . . Ensure that jurisdictions that fail to comply with applicable Federal law do not receive

23 Federal funds, except as mandated by law.” It further states in Section 9 that: “It is the policy of

24 the executive branch to ensure, to the fullest extent of the law, that a State, or a political

25 subdivision of a State, shall comply with 8 U.S.C. 1373.”

26

98. If defendant Attorney General Sessions or defendant Secretary of Homeland

27 Security Kelly, in the discretion of either one of them, determines that a “sanctuary jurisdiction”

28
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who fully refuses to comply with 8 U.S.C. § 1373, they must ensure that the jurisdiction is not

_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

25

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1 “eligible to receive federal grants, except as deemed necessary for law enforcement purposes.”

2 Executive Order § 9.

3

99. The Executive Order provides that the Attorney General “shall take appropriate

4 enforcement action against any entity that violates 8 U.S.C. § 1373 or has in effect a statute

5 policy or practice that prevents or hinders the enforcement of Federal law.” Executive Order §

6 9.

7

100. The President does not have the authority to issue the Executive Order because

8 the Executive Order is not authorized by the Constitution or Congress.

9

101. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

10 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

11 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

12

WHEREFORE, Richmond prays for relief as hereinafter set forth.

13

THIRD CLAIM FOR RELIEF

14

For Injunctive and Declaratory Relief Based on Violation of Fourth Amendment

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102. Plaintiff repeats and incorporates by reference each allegation of the prior

paragraphs as if fully set forth herein.

103. The Fourth Amendment prohibits unreasonable search and seizure, which

includes keeping people in custody who otherwise would be released.

104. The Executive Order requires Richmond to keep people in custody who would

otherwise be released. Richmond and its law enforcement officials will not have probable cause

to keep these people in custody.

105. Therefore, Richmond may be liable under the Fourth Amendment for honoring

an ICE civil detention request. Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST,

2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014); see Morales v. Chadbourne, 793 F.3d

208, 215-216 (1st Cir. 2015); Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S.

Dist. LEXIS 2438, at *23-24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861,

887 (N.D. Cal. 2016). Further, the federal government has made clear that Richmond will bear

all responsibility for the additional detention costs and potential liability.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

26

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1

106. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

2 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

3 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

4

WHEREFORE, Richmond prays for relief as hereinafter set forth.

5

FOURTH CLAIM FOR RELIEF

6

For Injunctive and Declaratory Relief Based on Violation of Due

Process Clause Because of Vagueness 7

8

107. Plaintiff repeats and incorporates by reference each allegation of the prior

9 paragraphs as if fully set forth herein.

10

108. The Executive Order is unconstitutionally vague in violation of the Due Process

11 Claim, the Fifth Amendment of the Constitution.

12

109. A federal law is unconstitutionally vague if it “fails to provide a person of

13 ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

14 encourages seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304,

15 128 S. Ct. 1830, 1845 (2008). This standard applies to Executive Orders. See United States v.

16 Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). “It is a basic principle of due process that an

17 enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of

18 Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972); see also Desertrain v. City of L.A.,

19 754 F.3d 1147, 1155-56 (9th Cir. 2014).

20

110. The Executive Order is unconstitutionally vague and, therefore, unconstitutional.

21 It fails to define key terms, such as “sanctuary jurisdiction” and the term is not defined in any

22 federal law or regulation. Although Richmond and numerous other jurisdictions have been

23 referred to as “sanctuary cities,” there is no common definition of a sanctuary city and there are

24 differences between the ordinances and policies of the different jurisdictions referred to as

25 “sanctuary cities.” The fact that a public entity has been referred to as a sanctuary city or that it

26 has enacted legislation about immigration policies does not mean that it is a “sanctuary

27 jurisdiction” under the Executive Order. No jurisdiction can determine by the language of the

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Law Offices COTCHETT, PITRE & MCCARTHY, LLP

Executive Order if it is a “sanctuary jurisdiction” subject to the Executive Order.

_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

27

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1

111. The Executive Order is also unconstitutionally vague and, therefore,

2 unconstitutional, because it does not define what actions or inactions constitute “willful refusal

3 to comply with 8 U.S.C. § 1373.” The Executive Order gives unfettered discretion to the

4 Attorney General and Secretary of Homeland Security without providing any rules or guidance

5 on how that discretion should be exercised. The Executive Order is, therefore unconstitutionally

6 vague. United States v. Williams, 553 U.S. at 304; Grayned v. City of Rockford, 408 U.S. at

7 108. The Executive Order is impermissibly vague because it allows resolution on an ad hoc and

8 subjective basis, with the attendant dangers of arbitrary and discriminatory application. See

9 Grayned v. City of Rockford, 408 U.S. at 109.

10

112. An additional reason that the Executive Order is unconstitutionally vague is that it

11 does not define what is meant by the phrase: “Ensure that jurisdictions that fail to comply with

12 applicable Federal law do not receive Federal funds, except as mandated by law.” Richmond does

13 not know, with respect to the Executive Order, what “applicable Federal law means.” There is no

14 way for Richmond to know whether the “applicable Federal law” is only 8 U.S.C. § 1373, all

15 immigration laws or all federal laws.

16

113. Accordingly, the Executive Ordinance is unconstitutional and Richmond seeks a

17 declaration that the Executive Order is unconstitutional, and a temporary, preliminary, and

18 permanent injunction enjoining the enforcement of the Executive Order against Richmond.

19

WHEREFORE, Richmond prays for relief as hereinafter set forth.

20

FIFTH CLAIM FOR RELIEF

21

For a Declaration that Richmond Complies With 8 U.S.C. § 1373

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114. Plaintiff repeats and incorporates by reference each allegation of the prior

paragraphs as if fully set forth herein.

115. Richmond contends that it complies with 8 U.S.C. § 1373. Specifically, the

Richmond Police Department Policy Manual provides that nothing in Section 428 of the Manual

regarding immigration violations “is intended to restrict officers from exchanging legitimate law

enforcement information with other federal, state or local government entity (8 U.S.C. § 1373; 8

U.S.C. § 1644).”

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28

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1

116. Richmond believes that Defendants contend that Richmond does not comply with

2 8 U.S.C. § 1373.

3

117. An actual controversy thus presently exists between Richmond and Defendants

4 about whether Richmond complies with 8 U.S.C. § 1373. A judicial determination resolving

5 this controversy is necessary and appropriate at this time.

6

WHEREFORE, Richmond prays for relief as hereinafter set forth.

7

VI. PRAYER FOR RELIEF

8

Wherefore, the City of Richmond prays for the following relief:

9

1. For a declaration that the Executive Order is unconstitutional because it violates the

10 Tenth Amendment, violates the separation of powers clause of the U.S. Constitution, violates the

11 spending clause of the U.S. Constitution, is unconstitutionally coercive, violates the Fourth

12 Amendment of the U.S. Constitution, and/or is unconstitutionally vague;

13

2. For a declaration that Richmond complies with 8 U.S.C. § 1373;

14

3. Temporarily, preliminarily and permanently enjoin the named Defendants from

15 enforcing the Executive Order against the City of Richmond;

16

4. Award the City of Richmond reasonable costs and attorney’s fees; and

17

5. Grant any other further relief that the Court deems fit and proper.

18

19 Dated: March 21, 2017

COTCHETT, PITRE & McCARTHY, LLP

20 21 22 23 Dated: March 21, 2017 24

By: /s/ Joseph W. Cotchett
JOSEPH W. COTCHETT Attorneys for Plaintiff
CITY OF RICHMOND

25

By: /s/ Bruce Reed Goodmiller

26

BRUCE REED GOODMILLER

27

Attorneys for Plaintiff

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_____________________________________________________________________________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

29

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1

ATTESTATION OF FILING

2

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local

3 Rule 5-1(i)(3) that concurrence to the filing of this document has been obtained from each

4 signatory hereto.

5

/s/ Nancy L. Fineman

6

NANCY L. FINEMAN

7

Attorney for Plaintiff

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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JS-CAND 44 (Rev. 07/16)

Case 3:17-cv-01535CIDVoIcLumCeOntV1-E7RFSilHedE0E3T/21/17 Page 1 of 2

The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

CITY OF RICHMOND, a municipal corporation

DONALD J. TRUMP, President of the United States

(b) County of Residence of First Listed Plaintiff Contra Costa
(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Joseph W. Cotchett Cotchett, Pitre & McCarthy 840 Malcolm Road, Suite 200 Burlingame, CA 9401

Telephone: (650) 697-6000 Facsimile: (650) 697-0577

County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

of Business In This State

4

4

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

Citizen or Subject of a Foreign Country

3

3 Foreign Nation

6

6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
Of Veteran’s Benefits 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY
310 Airplane 315 Airplane Product
Liability
320 Assault, Libel & Slander
330 Federal Employers’ Liability
340 Marine
345 Marine Product Liability
350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal
Injury 362 Personal Injury -
Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations
445 Amer. w/Disabilities– Employment
446 Amer. w/Disabilities– Other
448 Education

PERSONAL INJURY 365 Personal Injury –
Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee– Conditions of Confinement

625 Drug Related Seizure of Property 21 USC § 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Management
Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

422 Appeal 28 USC § 158 423 Withdrawal
28 USC § 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS–Third Party
26 USC § 7609

V. ORIGIN (Place an “X” in One Box Only)

1 Original

2 Removed from

Proceeding

State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 Transferred from Another District (specify)

6 Multidistrict Litigation–Transfer

OTHER STATUTES 375 False Claims Act 376 Qui Tam (31 USC
§ 3729(a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes
8 Multidistrict Litigation–Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
U.S. Constitution, due process clause, 4th Amendment, 10th Amendment
VI. CAUSE OF ACTION Brief description of cause:
Complaint for Injunctive and Declaratory Relief based on unconstitutionality of Executive Order

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P.

DEMAND $

VIII. RELATED CASE(S), IF ANY (See instructions):

JUDGE William H. Orrick

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes

No

DOCKET NUMBER 3:17-CV-00485-WHO

(Place an “X” in One Box Only)

SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE

DATE: 03/21/2017

SIGNATURE OF ATTORNEY OF RECORD: /s/ Joseph W. Cotchett

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JS-CAND 44 (rev. 07/16) Case 3:17-cv-01535 Document 1-7 Filed 03/21/17 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44
Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”
II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.
(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an “X” in one of the six boxes.
(1) Original Proceedings. Cases originating in the United States district courts.
(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.
(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.
(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.
(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.
Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”
Date and Attorney Signature. Date and sign the civil cover sheet.

Case 3:17-cv-01535 Document 1-8 Filed 03/21/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8
BRUCE REED GOODMILLER (SBN 121491) 9 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 10 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 11 450 Civic Center Plaza
P.O. Box 4046 12 Richmond, CA 94804
Telephone: (510) 620-6509 13 Facsimile: (510) 620-6518

14 Attorneys for Plaintiff

15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

16

CITY OF RICHMOND, a Municipal

Case No.

17 corporation

CERTIFICATE OF INTERESTED

18

Plaintiff,

ENTITIES OR PERSONS

19

vs.

20 DONALD J. TRUMP, President of the
United States, 21 JOHN F. KELLY, Secretary of the United
States Department of Homeland Security, 22 JEFFERSON B. SESSIONS, Attorney
General of the United States, and the 23 UNITED STATES OF AMERICA

Complaint Filed: March 22, 2017 No Trial Date

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Defendants.

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Case 3:17-cv-01535 Document 1-8 Filed 03/21/17 Page 2 of 3

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Plaintiff City of Richmond is a public entity. Therefore, Civ. L.R. 3-15 does not apply to

2 it.

3 Dated: March 21, 2017

COTCHETT, PITRE & McCARTHY, LLP

4
5
6
7 Dated: March 21, 2017
8

By: /s/ Joseph W. Cotchett
JOSEPH W. COTCHETT Attorneys for Plaintiff
CITY OF RICHMOND

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By: /s/ Bruce Reed Goodmiller

10 BRUCE REED GOODMILLER

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Attorneys for Plaintiff

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ATTESTATION OF FILING

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I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

3 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

4 hereto.

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/s/ Nancy L. Fineman

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NANCY L. FINEMAN

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Attorney for Plaintiff

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER

A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to case
17-cv-00485-WHO City and County of San Francisco v. Donald J. Trump
I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.

Case

Title

Related Not Related

17-cv-00574-WHO County of Santa Clara v. Donald J. Trump WHO

17-cv-01535-SK City of Richmond v. Trump

WHO

ORDER

The parties are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be re- noticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established
1

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in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: March 24, 2017

By: ________________________ William H. Orrick United States District Judge

2

 
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1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO
CITY OF RICHMOND’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
Date: May 10, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 No Trial Date

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TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION FOR PRELIMARY INJUNCTION........................1
4 MEMORANDUM OF POINTS AND AUTHORITIES.............................................................2
5

6

I. INTRODUCTION..................................................................................................2

7

II. STATEMENT OF FACTS....................................................................................5

8

A. THE EXECUTIVE ORDER THREATENS TO WITHHOLD AND CLAW-BACK

ALLOCATED FEDERAL FUNDS.....................................................................5 9

10

B. RICHMOND’S POLICIES MAY VIOLATE THE EXECUTIVE ORDER .............6

11

C. RICHMOND RELIES ON FEDERAL FUNDING TO PROVIDE ESSENTIAL

SERVICES; WITHDRAWAL OF FEDERAL FUNDS WOULD BE

12

CATASTROPHIC ...........................................................................................7

13

D. THE EXECUTIVE ORDER PUTS RICHMOND IN AN UNTENABLE AND

14

DANGEROUS POSITION ................................................................................9

15

III. LEGAL STANDARD ..........................................................................................10

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IV. ARGUMENT........................................................................................................11

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A. THE CITY IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS........11

18 1. The Executive Order Usurps Congress’ Spending Power .......11

19

2. The Executive Order Unconstitutionally Imposes New And

20

Unrelated Conditions On Existing Federal Grants ..................11

21

3. The Executive Order Is Unconstitutionally Coercive...............13

22 4. The Executive Order Violates The Tenth Amendment ............13

23

5. The Executive Order Induces Violations Of The Fourth

24

Amendment ..................................................................................15

25

6. The Executive Order Is Also Unconstitutionally Vague In

26

Violation Of The Due Process Clause Of The Fifth

Amendment ..................................................................................16

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B. RICHMOND WILL SUFFER IRREPARABLE HARM WITHOUT

PRELIMINARY RELIEF...............................................................................17 2

3

C. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR A

PRELIMINARY INJUNCTION .......................................................................19

4

V. CONCLUSION ....................................................................................................20 5

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TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ....................................................................................................10
5 Ariz. Dream Act Coal. v. Brewer,
6 No. 15-15307, 2017 U.S. App. LEXIS 1919 (9th Cir. Feb. 2, 2017) ...........................................19

7 Clinton v. City of New York, 8 524 U.S. 417 (1998)....................................................................................................................11

9 de Jesus Ortega Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ......................................................................................................17
10

11

Desertrain v. City of L.A., 754 F.3d 1147 (9th Cir. 2014) ....................................................................................................16

12 Drakes Bay Oyster Co. v. Jewell,
13 747 F.3d 1073 (9th Cir. 2014) .....................................................................................................19

14 Elrod v. Burns, 15 427 U.S. 347 (1976)....................................................................................................................17
16 Grayned v. City of Rockford, 408 U.S. 104 (1972)..........................................................................................................3, 16, 17
17 In re Aiken Cty.,
18 725 F.3d 255 (2013)....................................................................................................................11
19 Mendia v. Garcia,
20 165 F. Supp. 3d 861 (N.D. Cal. 2016) ........................................................................................16

21 Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014).........................16
22
23 Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015).......................................................................................................16
24 Nat’l Fed’n of Indep. Bus v. Sebelius,
25 567 U.S. 519, 132 S. Ct. 2566 (2012)...............................................................................2, 13, 14

26 New York v. United States, 27 505 U.S. 144 (1992)...............................................................................................................12, 13

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1 Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S. Dist. LEXIS 2438 (D. Minn. Jan. 6, 2017).......................16
2
3 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)........................................................................................................................12
4 Printz v. United States,
5 521 U.S. 898 (1997)....................................................................................................................13

6 Raich v. Gonzales, 7 500 F.3d 850 (9th Cir. 2007) ......................................................................................................14

8 South Dakota v. Dole,
483 U.S. 203 (1987)...............................................................................................................12, 16 9

10

Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ....................................................................................................10

11 Texas v. United States,
12 809 F.3d 134 (5th Cir. 2015) ......................................................................................................10

13 United States v. Williams, 14 553 U.S. 285 (2008)....................................................................................................................16
15 Valle Del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ....................................................................................................16
16 Washington v. Trump,
17 847 F.3d 1151 (9th Cir. 2017) .............................................................................................10, 17
18 Winter v. Nat. Res. Def. Council, Inc., 19 555 U.S. 7 (2008)........................................................................................................................10

20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)................................................................................................................4, 11
21

22 CONSTITUTIONAL PROVISIONS
23 United States Constitution
24 Article I, § 8 ................................................................................................................................11
25
26 Article II, § 3...............................................................................................................................11

27 Article III, § 1 .............................................................................................................................10

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OTHER AUTHORITIES

2
3 Executive Order 13768, “Enhancing Public Safety in the Interior of the United States”............................................ passim
4

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STATUTES

6 7 8 C.F.R. § 287.7 ..............................................................................................................................15

8 8 U.S.C. 1373.......................................................................................................................... passim

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NOTICE OF MOTION AND MOTION FOR PRELIMARY INJUNCTION

2

PLEASE TAKE NOTICE that on May 10, 2017, at 2:00 p.m. or as soon thereafter as the

3 matter may be heard before the Honorable William H. Orrick, in Courtroom 2 of the United

4 States District Court for the Northern District of California, 450 Golden Gate Avenue, San

5 Francisco, California, Plaintiff City of Richmond (“Richmond”) will and hereby does move the

6 Court pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction

7 against Defendants Donald J. Trump, President of the United States of America; John F. Kelly, in

8 his official capacity as Secretary of the United States Department of Homeland Security;

9 Jefferson B. Sessions, in his official capacity as Attorney General of the United States; and the

10 United States of America (collectively, “Defendants”); and their officers, agents, servants,

11 employees, and attorneys, and any other persons who are in active concert or participation with

12 them.

13

Richmond seeks a nationwide preliminary injunction (1) prohibiting Defendants from

14 enforcing Section 9(a) of Executive Order 13768, entitled “Enhancing Public Safety in the Interior

15 of the United States” (“Executive Order”); (2) prohibiting Defendants from taking any action

16 pursuant to the Executive Order that would withhold or “claw-back” federal funds appropriated or

17 allocated by Congress; and (3) prohibiting Defendants from taking any action pursuant to the

18 Executive Order that would declare or render any jurisdiction ineligible for federal funds.

19

This motion is based on this Notice of Motion and Motion, the Memorandum of Points and

20 Authorities, the Request for Judicial Notice, the supporting declarations of Tom Butt (Mayor),

21 William Lindsay (City Manager), Gayle McLaughlin (City Council Member), Allwyn Brown

22 (Chief of Police), and Adrian Sheppard (Fire Chief), as well as the papers, evidence and records on

23 file in this action, and any other written or oral evidence or argument as may be presented at or

24 before the time this motion is heard by the Court.

25

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

By this Motion, Plaintiff City of Richmond respectfully asks the Court to enter a

4 preliminary injunction prohibiting implementation and enforcement of Section 9(a) of Executive

5 Order 13768, entitled “Enhancing Public Safety in the Interior of the United States,” issued by

6 President Trump on January 25, 2017 (the “Executive Order”). The Executive Order, in violation

7 of the United States Constitution, seeks to force local police departments, such as the Richmond

8 Police Department, to enforce federal immigration law. The Executive Order is in direct violation

9 of the Constitution because it allows the Attorney General and Secretary of Homeland Security,

10 based upon their discretion, to withhold federal funds from public entities that are “sanctuary

11 jurisdictions” who “willfully refuse” to comply with 8 U.S.C. § 1373, a statute which seeks to

12 regulate state and local jurisdictions’ response to immigration requests.

13

On March 27, 2017, Attorney General Jefferson Sessions announced that “the Department

14 of Justice will require jurisdictions seeking or applying for Department grants to certify

15 compliance with [8 U.S.C.] Section 1373 as a condition for receiving these awards,” and that the

16 Justice Department will take “all lawful steps to claw-back any funds awarded to a jurisdiction

17 that willfully violates 1373.”

18

Our U.S. Supreme Court has said that this use of an Executive Order to coerce Richmond

19 or any other jurisdiction through a threat of the loss of all federal funds is unconstitutional. Nat’l

20 Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602-04 (2012). “When, for

21 example, such conditions take the form of threats to terminate other significant independent

22 grants, the conditions are properly viewed as a means of pressuring the states to accept policy

23 changes.” 132 S. Ct. at 2604. Section 9(a) of the Executive Order directs the Attorney General to

24 “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

25 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

26

The term “sanctuary jurisdiction” is not defined in the Executive Order or in any federal

27 statute or regulation. While many public entities, including Richmond, have been referred to as

28 “Sanctuary Cities” and Richmond is proud to support its immigrants, the policies of the different

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1 jurisdictions differ substantially. It is unclear if Richmond will be considered a “sanctuary

2 jurisdiction” subject to the loss of all federal funds. The Executive Order provides no guidance to

3 Richmond on how to make this determination and there is no legal precedent for Richmond to

4 consult to make this determination. Based upon statements made by President Trump and others,

5 Richmond believes it may be swept up as a sanctuary jurisdiction under the Executive Order. The

6 Executive Order violates the Due Process Clause because it is unconstitutionally vague and

7 unenforceable against a city like Richmond, California. Grayned v. City of Rockford, 408 U.S.

8 104, 108 (1972).

9

Moreover, the Executive Order does not define what actions or inaction can be

10 considered by the Attorney General and Secretary of Homeland Security as a willful refusal to

11 comply with 8 U.S.C. § 1373 and there is no legal precedent defining what constitutes a willful

12 refusal to comply with 8 U.S.C. § 1373. Richmond does comply with 8 U.S.C. § 1373. This is an

13 additional reason that the Executive Order is unconstitutionally vague and unenforceable pursuant

14 to Supreme Court precedent.

15

Given the vagueness of the Executive Order and the discretion it provides to the Attorney

16 General and Secretary of Homeland Security to withhold federal funds, Richmond faces imminent

17 danger of losing all federal funding because of legislation that it enacted twenty-five years ago to

18 foster trust between its police department and residents. Richmond has already been harmed by

19 the uncertainty caused by the Executive Order. The Defendants intend to immediately begin

20 enforcing the Executive Order, and the Executive Order does not provide any policies or

21 procedures to challenge the findings of the Attorney General or Secretary of Homeland Security.

22 Accordingly, this Court is the only vehicle for Richmond to obtain relief to stop the calamitous

23 effects that the Executive Order will have on Richmond.

24

Richmond directly receives federal funds each year and also receives State funds, most of

25 which are passed through federal funds. The funds are used to fund vital services, and only a

26 small amount are used for law enforcement or immigration. Most are used for housing and

27 infrastructure improvements, and to provide relief to the City’s most vulnerable residents. The

28 loss of these funds will have a direct and substantial effect on Richmond and its citizens. None of

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1 the grants of money by the federal government to Richmond were conditioned on Richmond’s

2 compliance with any immigration law. The Executive Order seeks to retroactively tie the receipt

3 of federal funds to Richmond’s compliance with the Executive Order, and specifically

4 immigration laws, which is unconstitutional on its face.

5

While Presidents have the ability to issue executive orders, the President’s power “must

6 stem either from any act of Congress or from the Constitution itself.” Youngstown Sheet & Tube

7 Co. v. Sawyer, 343 U.S. 579, 585 (1952). There is no authority from an act of Congress or from

8 the Constitution for President Trump to have issued the Executive Order.

9

The Executive Order is an impermissible and illegal order because:

10

(1) the Executive Order violates the Tenth Amendment of the United States

11

Constitution;

12

(2) the Executive Order seeks to give two Cabinet members the unfettered

13

discretion to take away all federal funding from Richmond, a power that no branch of the

14

federal government has;

15

(3) the Executive Order impermissibly usurps the rights of the Legislative

16

branch regarding appropriating and spending monies thus violating the separation of

17

powers clause of the Constitution;

18

(4) the Executive Order violates the due process clause because it is

19

unconstitutionally vague in its definition of “sanctuary jurisdiction,” “willful refusal to

20

comply,” and the unfettered enforcement discretion it gives to the Attorney General and

21

Secretary of Homeland Security;

22

(5) the Executive Order exposes state and local goverrnments to liability under

23

the Fourth Amendment of the Constitution for improperly detaining people; and

24

(6) the Executive Order imposes additional costs to comply with the Executive

25

Order, which costs the federal government will not reimburse.

26

Because the Executive Order is unconstitutional and, as set forth further below, Richmond

27 is likely to suffer irreparable harm in the absence of preliminary relief, the City of Richmond

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1 respectfully asks the Court to enter the requested preliminary injunction prohibiting

2 implementation and enforcement of Section 9(a) of the Executive Order.

3 II. STATEMENT OF FACTS

4

A. THE EXECUTIVE ORDER THREATENS TO WITHHOLD AND CLAW-BACK

ALLOCATED FEDERAL FUNDS 5

6

On January 25, 2017, President Donald J. Trump issued Executive Order 13768, entitled

7 “Enhancing Public Safety in the Interior of the United States.” RJN, Ex. 1 (“Executive Order”).1

8 The Executive Order declares, “Sanctuary jurisdictions across the United States willfully violate

9 Federal law in an attempt to shield aliens from removal from the United States. These

10 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

11 Republic.” Id. § 1. The Executive Order sets forth the policy that “jurisdictions that fail to

12 comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Id.

13 § 2(c). Section 9 of the Executive Order addresses “Sanctuary Jurisdictions” and states: “It is the

14 policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political

15 subdivision of a State, shall comply with 8 U.S.C. 1373.” Id. § 9. Section 9(a) establishes a

16 funding restriction:

17

In furtherance of this policy, the Attorney General and the Secretary [of

Homeland Security], in their discretion and to the extent consistent with law, shall

18

ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373

(sanctuary jurisdictions) are not eligible to receive Federal grants, except as

19

deemed necessary for law enforcement purposes by the Attorney General or the

Secretary. The Secretary has the authority to designate, in his discretion and to the

20

extent consistent with law, a jurisdiction as a sanctuary jurisdiction.

21 Section 9(a) directs the Attorney General to “take appropriate enforcement action against any entity

22 that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or

23 hinders the enforcement of Federal law.” Id.

24

25

26

1 “RJN” refers to Request for Judicial Notice in Support of Motion for Preliminary Injunction, filed concurrently herewith. “__ Dec” refers to declarations of the following declarants filed

27

concurrently herewith: Tom Butt (Mayor), William Lindsay (City Manager), Gayle McLaughlin (City Council Member), Allwyn Brown (Chief of Police), and Adrian Sheppard (Fire Chief).

28 “Ex._” refers to exhibits attached to a declaration or the RJN.

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1

On March 27, 2017, Attorney General Jefferson Sessions announced that “the Department

2 of Justice will require jurisdictions seeking or applying for Department grants to certify

3 compliance with [8 U.S.C.] Section 1373 as a condition for receiving these awards,” and that the

4 Justice Department will take “all lawful steps to claw-back any funds awarded to a jurisdiction

5 that willfully violates 1373.” RJN, Ex. 2 (DOJ Press Release).2

6

B. RICHMOND’S POLICIES MAY VIOLATE THE EXECUTIVE ORDER

7

Richmond is one of the most racially diverse cities in the Bay Area. Butt Dec ¶ 3.

8 Approximately one-third of Richmond’s more than 100,000 residents are immigrants. Id. In

9 particular, in the late 1980s, Richmond experienced an increase of immigrants arriving from

10 Central America. Id. Many of these immigrants had been the victims of political persecution. Id.

11 Since arriving in Richmond, these individuals and their families have contributed to the City’s

12 success. Id.

13

To fulfill its mission of preventing crime, maintaining order and enforcing the law, the

14 Richmond Police Department (“RPD”) engages in community policing. Brown Dec ¶ 5; Butt

15 Dec ¶ 4. The community policing model requires active, engaged, and empowered

16 neighborhood residents who freely interact with police without reservations. Brown Dec ¶ 5. It

17 is critical that all residents, no matter their immigration status, are able to report crimes and assist

18 in criminal investigations without fear that their immigration status will also be investigated. Id.

19 Over the past decade, the RPD has made significant progress in growing community trust. Id.

20 This has resulted in a significant reduction in crime and victimization. Brown Dec ¶ 5 & Ex. 1;

21 McLaughlin Dec ¶ 5.

22

Richmond City Council Ordinance No. 29-90 enacted in 1990, reaffirmed by Resolution

23 No. 11-07 in 2007, seeks to “foster an atmosphere of trust and cooperation between the

24 Richmond Police Department and all persons, regardless of immigration status, residing in the

25 City of Richmond.” Brown Dec ¶ 6; Lindsay Dec, Exs. 1 (Ordinance No. 29-90) and 2

26 2 Because the Executive Order does not define “Federal grants,” the City does not interpret that

27

phrase as applying solely to funds from the Department of Justice, but to all Federal funds. This interpretation is consistent with Executive Order Section 2(c) which states, in relevant part:

28 “jurisdictions that fail to comply with applicable Federal law do not receive Federal funds. . . .”

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1 (Resolution No. 11-07). Policy 428 of the RPD Policy Manual states it is “department policy,

2 consistent with its obligations under state and federal law, to adhere to the City of Richmond

3 Ordinance 29-90” and that “all individuals, regardless of their immigration status, must feel

4 secure that contacting law enforcement will not make them vulnerable to deportation.” Brown

5 Dec ¶ 8 & Ex. 2. RPD Policy Manual Section 428.4 also states: “Nothing in this policy is

6 intended to restrict officers from exchanging legitimate law enforcement information with any

7 other federal, state or local government entity (8 USC § 1373; 8 USC § 1644).” Id.

8

Ordinance No. 29-90 and RPD Policy 428 helped Richmond residents to trust that they

9 can report a crime without fear that their involvement will lead to their deportation. Brown Dec ¶

10 8. That trust is being eroded by the Executive order. Id. RPD is noticing that residents are

11 reluctant to cooperate out of fear and concern about RPD’s relationship with the United States

12 Immigration and Customs Enforcement (“ICE”). Id. The Executive Order has increased fear in

13 the immigrant community and made it harder for RPD to fulfill its mission and protect the public.

14 Brown Dec ¶ 9.

15

Richmond believes its policies are in compliance with all state, federal and constitutional

16 requirements. Butt Dec ¶ 4; Brown Dec ¶ 10. However, the Executive Order suggests that

17 Richmond will be targeted for protecting its residents. Butt Dec ¶ 4. It is uncertain what actions

18 the City must take to comply with the Executive Order. Brown Dec ¶ 10; Butt Dec ¶ 6.

19

C. RICHMOND RELIES ON FEDERAL FUNDING TO PROVIDE ESSENTIAL SERVICES;

20

WITHDRAWAL OF FEDERAL FUNDS WOULD BE CATASTROPHIC

21

The City budget provides for Richmond’s services, infrastructure, and economic and

22 community development. Lindsay Dec ¶ 3. Federal grants are a critical component of

23 Richmond’s budget, including grants from the Department of Commerce, Department of Defense,

24 Department of Health and Human Services, Department of Homeland Security, Department of

25 Housing and Urban Development, Department of Justice, Department of Labor, Department of

26 Transportation, and the Environmental Protection Agency. Id. The City currently has active

27 grants that have awarded $77.2 million in federal funds to the City. Lindsay Dec ¶ 4.

28 Approximately $50 million of these funds have already been used for ongoing programs. Id.

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1

For example:

2  The Richmond Housing Authority receives approximately $26 million in grants from the

3

U.S. Department of Housing and Urban Development (HUD) to provide affordable

4

housing. In addition to more than 550 housing units for low-income, elderly and disabled

5

residents, the Housing Authority provides Section 8 vouchers to more than 2,000

6

Richmond residents who can use these subsidies to pay rent anywhere in the City. The

7

housing choice voucher program is the federal government’s major program for assisting

8

very low-income families, the elderly, and the disabled to afford decent, safe, and

9

sanitary housing in the private market. Lindsay Dec ¶ 4.

10  Other HUD grants include Community Development Block Grant funds which have in

11

the past been used for a variety of purposes, including to provide assistance to programs

12

for lower income persons, to provide emergency and transitional housing for the

13

homeless, to increase housing opportunities for lower income persons, and, most

14

recently, to provide $3.1 million in funding to increase access to City facilities for

15

persons with disabilities. Id.

16  The Department of Justice has granted over $2.7 million in critical funding to support

17

law enforcement in Richmond. For example, Richmond received an award of $625,000

18

per year from the Community Oriented Policing Services program for three years to hire

19

five police officers, and $150,000 to expand the Richmond Police Department’s body-

20

worn camera program. Lindsay Dec ¶ 6; Brown Dec ¶ 9.

21  In addition, the Office of Juvenile Justice and Delinquency Prevention awarded

22

$1,500,000 to support the East Bay Mentoring Collaborative to provide vulnerable youth

23

in low-income, high-crime neighborhoods with adult mentors. As a result, the EBMC

24

will serve over 450 additional youth who are at high risk of dropping out of high school

25

and entering the juvenile justice system. Lindsay Dec ¶ 6.

26  The Department of Transportation has recently provided over $3 million to improve the

27

condition of arterial streets in the community, and over $400,000 to improve and provide

28

safe routes for children to get to school. Lindsay Dec ¶ 7.

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1  The Department of Homeland Security Federal Emergency Management Agency

2

(FEMA) also provides significant support for training and operating the Richmond Fire

3

Department Office of Emergency Services, through the State of California Governor’s

4

Office of Emergency Services. Sheppard Dec ¶ 5.

5

These and other federal funds were granted without any preconditions relating to

6 Richmond’s policies concerning ICE. Lindsay Dec ¶¶ 5, 8. The loss of this revenue would have

7 a catastrophic impact on the City, especially in the areas of public safety and assisting vulnerable

8 populations. Lindsay Dec ¶ 8. The City would be unable to provide critical community services,

9 including mandatory entitlement services. Id. Both federal programs and other programs would

10 be lost or significantly impaired. Id. Essential City services would be affected by cuts in federal

11 funds, including housing, public safety, environmental protection, employment and training,

12 literacy, and transportation programs. Lindsay Dec ¶ 9.

13

D. THE EXECUTIVE ORDER PUTS RICHMOND IN AN UNTENABLE AND DANGEROUS

14

POSITION

15

Under Section 1(b) of Article IV of the Richmond City Charter the City Manager is

16 required to prepare an annual budget for review and approval by the City Council. Lindsay Dec

17 ¶ 10. Richmond has already begun the process of adopting the annual budget for the fiscal year

18 beginning on July 1, 2017. Id. Without preliminary relief and clarification regarding the legality

19 and effect of the Executive Order, the City is in an untenable financial situation, and decisions

20 that must be made while awaiting a final decision in this case which could take multiple budget

21 cycles, could cause a financial crisis. Id.

22

Without preliminary relief, the City will be forced to choose whether to continue to

23 provide services to City residents without knowing that the City will be reimbursed by the

24 federal government for those services, or discontinue mandatory and essential services to its

25 residents. Lindsay Dec ¶ 11. Either course of action has dire consequences and subjects the City

26 and its residents to irreparable harm. Id.

27

Withdrawal of federal funds from programs that rely on federal grants would put the City

28 and its residents in a crisis, and require a significant reduction in staff and contract services.

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1 Lindsay Dec ¶ 12. The loss of federal revenue would endanger the health and safety of

2 Richmond’s residents. Id. As stated by Richmond’s Fire Chief, Adrian Sheppard, loss of federal

3 funding for the Richmond Fire Department Office of Emergency Services would significantly

4 impact the City’s capacity to prevent, protect against, mitigate, respond to, and recover from

5 terrorist attacks and other catastrophes. Sheppard Dec ¶ 10. Without federal funds the City

6 would need to take drastic action such as reducing RPD patrol services to dangerous levels,

7 eliminating or substantially impairing emergency response services, and reducing government

8 services and personnel to below basic minimum requirements. Lindsay Dec ¶ 12.

9

Attempting to comply with the Executive Order is not viable because it is uncertain what

10 actions the City must take to comply, and attempting to do so would likely interfere with policy

11 decisions that the Richmond City Council has made. Lindsay Dec ¶ 13. All of these

12 considerations need to be reflected in the annual budget which the City is required to adopt on or

13 before July 1, 2017. Lindsay Dec ¶ 14.

14 III. LEGAL STANDARD

15

To obtain a preliminary injunction, a plaintiff must establish “(1) ‘that he is likely to

16 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary

17 relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public

18 interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Nat.

19 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). In the alternative, a preliminary injunction is

20 appropriate if “serious questions going to the merits were raised and the balance of the hardships

21 tips sharply in the plaintiff’s favor,” so long as there is a likelihood of irreparable injury and the

22 injunction is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-

23 35 (9th Cir. 2011). The Court has discretion, in appropriate circumstances, to issue a nationwide

24 injunction. See Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (“[Because] the

25 Constitution vests [district courts] with ‘the judicial Power of the United States’. . . , [i]t is not

26 beyond the power of the court, in appropriate circumstances, to issue a nationwide injunction.”)

27 (citing U.S. Const. art. III, § 1)), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016);

28 Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017).

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1 IV. ARGUMENT

2

A. THE CITY IS LIKELY TO SUCCEED ON THE MERITS OF ITS CLAIMS

3

1. The Executive Order Usurps Congress’ Spending Power

4

Section 9(a) of the Executive Order violates the separation of powers inherent in the

5 Constitution by making funding decisions that the Constitution vests in Congress, not the

6 President. The federal system is a system of checks and balances. Our founders wanted to stop

7 the President from exercising unbridled discretion like the King from whom they had just won

8 their liberty. Therefore, the Constitution limits the power of the President. See Youngstown,

9 343 U.S. at 585 (“The President’s power, if any, to issue the order must stem either from an act

10 of Congress or from the Constitution itself.”).

11

Article I of the Constitution vests the federal spending power exclusively in Congress.

12 U.S. Const. art. I, § 8, cl. 1. The President cannot unilaterally impose new restrictions on a

13 jurisdiction’s eligibility for federal funding. The President does not have “unilateral power to

14 change the text of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 447

15 (1998). The President may veto a bill, but may not revise or revoke an appropriation by

16 Congress. Id. at 438; In re Aiken Cty., 725 F.3d 255, 261 n.1 (2013) (“President does not have

17 unilateral authority to refuse to spend the funds”). To the contrary, the President must “take

18 Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3, cl. 5. In directing that

19 “sanctuary jurisdictions” are not eligible to receive federal funds, the Executive Order usurps

20 Congress’ spending power and violates the separation of powers inherent in the Constitution.

21

2. The Executive Order Unconstitutionally Imposes New And

22

Unrelated Conditions On Existing Federal Grants

23

The Executive Order is also unconstitutional because it imposes new funding

24 conditions on existing grants;3 even Congress lacks this authority. Once Congress has

25

26 3 See RJN, Ex. 2 (Attorney General stating the Justice Department will “claw-back any funds awarded to a jurisdiction that willfully violates 1373”); Executive Order § 9(a) (sanctuary

27

jurisdictions “are not eligible to receive Federal grants”); id. § 9(c) (directing the Office of Management and Budget to obtain “information on all Federal grant money that currently is

28 received by any sanctuary jurisdiction.”) (emphases added).

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1 authorized an appropriation to a State, county or city and it has been accepted, Congress cannot

2 impose new conditions, after the fact. “[I]f Congress intends to impose a condition on the

3 grant of federal moneys, it must do so unambiguously,” in advance. Pennhurst State Sch. &

4 Hosp. v. Halderman, 451 U.S. 1, 17 (1981). “The legitimacy of Congress’ power to legislate

5 under the spending power . . . rests on whether the State voluntarily and knowingly accepts”

6 Congress’ conditions. Id. “There can, of course, be no knowing acceptance if a State is

7 unaware of the conditions or is unable to ascertain what is expected of it.” Id. The Executive

8 Order thus violates the Spending Clause because it seeks to claw-back funds already authorized

9 and accepted by a State, county, and city without any condition based on its status as a

10 “sanctuary jurisdiction.”

11

Moreover, Congress cannot impose conditions to the acceptance of federal funds when

12 those conditions are unrelated to the purpose for which the funds are given. See South Dakota v.

13 Dole, 483 U.S. 203, 208-09 & n.3 (1987) (“[T]he imposition of conditions under the spending

14 power” must be ‘germane’ or ‘related’ to the purpose of federal funding.”)’ New York v. United

15 States, 505 U.S. 144, 167 (1992). The Executive Order threatens the loss of all federal funds, not

16 only those related to the purposes of the Executive Order, which purpose is related to immigration.

17

Here, there is no nexus between immigration and the federal funds that Richmond receives

18 for its annual budget. The majority of these funds are used to provide affordable housing for low-

19 income, elderly and disabled residents, and to increase access to City facilities for persons with

20 disabilities. Other funds are used to create jobs and improve infrastructure, such as the condition

21 of arterial streets and the safety of the routes children take to school. Richmond does receive $2.7

22 million in critical funding to support local law enforcement. However, these funds are used for

23 purposes that are not germane to immigration; e.g., hiring five police officers, expanding the body-

24 worn camera program, and supporting the East Bay Mentoring Collaborative to provide

25 vulnerable youth in low-income, high-crime neighborhoods with adult mentors. In any event,

26 Section 9(a) of the Executive Order provides an exception for grants “deemed necessary for law

27 enforcement purposes by the Attorney General or the Secretary.”

28

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1

Because the Executive Order impermissibly imposes new and unrelated conditions on

2 existing appropriations, it contravenes established limits to Congress’ spending power.

3

3. The Executive Order Is Unconstitutionally Coercive

4

The Executive Order’s threat to strip Richmond of all federal funds and bring

5 enforcement actions against it for violation of federal laws is manifestly coercive and, therefore

6 unconstitutional. Congress cannot use coercion or a “power akin to undue influence” to force

7 States, counties or cities to act in accordance with federal policies. Nat’l Fed’n of Indep. Bus. v.

8 Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602 (2012) (holding Congress could not compel

9 unwilling states to participate in Medicaid expansion under the Affordable Care Act). Under

10 the United States Constitution, Congress cannot compel state officials to execute federal law.

11 Printz v. United States, 521 U.S. 898, 933 (1997) (“[T]he Federal Government may not compel

12 the States to implement, by legislation or executive action, federal regulatory programs.”). “In

13 providing for a stronger central government, therefore, the Framers explicitly chose a

14 Constitution that confers upon Congress the power to regulate individuals, not States. As we

15 have seen, the Court has consistently respected this choice. We have always understood that

16 even where Congress has the authority under the Constitution to pass laws requiring or

17 prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit

18 those acts.” New York v. United States, 505 U.S. 144, 166 (1992). The Executive Order

19 violates these principles of federalism and state sovereignty and is unconstitutional.

20

4. The Executive Order Violates The Tenth Amendment

21

The Executive Order is also unconstitutional because it violates the Tenth Amendment of

22 the Constitution. The Tenth Amendment provides: “The powers not delegated to the United

23 States by the Constitution, nor prohibited by it to the States, are reserved to the States

24 respectively, or to the people.” This Amendment preserves the sovereignty of the States and

25 local governments; but the Executive Order seeks to interfere with that sovereignty.

26

Under the Tenth Amendment, “Congress may not simply commandeer the legislative

27 process of the States by directly compelling them to enact and enforce a federal regulatory

28 program.” New York, 505 U.S. at 161 (internal quotation omitted). “The commandeering cases

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1 involve attempts by Congress to direct states to perform certain functions, command state

2 officers to administer federal regulatory programs, or to compel states to adopt specific

3 legislation.” Raich v. Gonzales, 500 F.3d 850, 867 n. 17 (9th Cir. 2007). This is precisely what

4 the Executive Order is designed to do, in violation of the Tenth Amendment.

5

The Executive Order exceeds the power of the President or any federal branch of

6 government because the Executive Order requires state and local governments to affirmatively

7 assist federal immigration officials by, inter alia, complying, at their own expense, with ICE

8 detainer requests. The federal government has made clear that the local agency bears the

9 financial burden of the detention, providing that “[n]o detainer issued as a result of a

10 determination made under this chapter . . . shall incur any fiscal obligation on the part of the

11 Department.” 8 C.F.R. § 287.7(e). The federal government also will not indemnify local

12 governments or its officials against constitutional claims, even when they arise directly out of

13 actions the local government has taken at the direction of the federal government. In Section

14 9(a) of the Executive Order, the “Attorney General shall take appropriate enforcement action

15 against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or

16 practice that prevents or hinders the enforcement of Federal Law.” By demanding that state and

17 local governments detain individuals who may be subject to removal at the request of federal

18 officials even if those individuals would otherwise be subject to release from custody, and by

19 ordering the Attorney General to take enforcement action against state and local governments

20 which do not comply, the Executive Order commandeers state and local officials in furtherance

21 of a federal regulatory program in violation of the Tenth Amendment to the United States

22 Constitution.

23

The Executive Order also requires that state and local governments take action to avoid

24 preventing or hindering the federal government in the enforcement of federal law. Executive

25 Order, § 9(a). This requirement forces local officials to act as an arm of the federal government.

26 This violates the Tenth Amendment. The federal government cannot use the appropriation of

27 money to force Richmond to act in a certain way. This use of an Executive Order to coerce

28

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1 Richmond to act on behalf of the federal government through a threat of the loss of all federal

2 funds is unconstitutional. Sebelius, 132 S. Ct. at 2602-04.

3

The Executive Order further impermissibly seeks to interfere with Richmond’s policy

4 decisions in enacting Ordinance No. 29-90 and Resolution No. 11-07, which further legitimate

5 local concerns and interests. This federal interference impermissibly penalizes state and local

6 governments that are deemed to “prevent or hinder” the enforcement of federal law and thus

7 impermissibly coerces state and local governments to adopt policies and practices that support

8 the Executive Order to the subordination of state and local government interests.

9

The Executive Order additionally interferes with Richmond’s ability to budget, by

10 threatening to withdraw critical federal funds that have been appropriated by Congress.

11

The Executive Order is unconstitutional because it coerces Richmond to implement

12 federal immigration policy. The Executive Order provides that federal funds will be withheld

13 from jurisdictions that failed to comply with federal law, including specifically 8 U.S.C. § 1373.

14 Executive Order, § 9(a). However, nothing in 8 U.S.C. § 1373 conditions any federal funding on

15 complying with 8 U.S.C. § 1373 and no federal funds which Richmond receives are conditioned

16 upon Richmond complying with 8 U.S.C. § 1373. In fact, in light of the plain language of the

17 statute, there can be no requirement that as a condition of receiving federal funds, a jurisdiction

18 comply with 8 U.S.C. § 1373. If the Executive Order is allowed to stand, its implementation

19 would impermissibly intrude on Richmond’s exercise of powers conferred upon it by the State of

20 California, and would unlawfully restrict Richmond’s ability to shape local government according

21 to Richmond’s needs and policy mandates of its residents.

22

Accordingly, the Executive Order is unconstitutional under the Tenth Amendment.

23

5. The Executive Order Induces Violations Of The Fourth Amendment

24

The Executive Order is also unconstitutional because it forces jurisdictions to keep

25 people in custody who otherwise would be released, thus potentially exposing the jurisdictions to

26 liability under the Fourth Amendment. This is not an idle concern. Public entities may be liable

27 under the Fourth Amendment for honoring an ICE civil detainer request in the absence of

28 probable cause. Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist.

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1 LEXIS 50340 (D. Or. Apr. 11, 2014); see Morales v. Chadbourne, 793 F.3d 208, 215-216 (1st

2 Cir. 2015); Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S. Dist. LEXIS 2438, at

3 *23-24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861, 887 (N.D. Cal. 2016).

4 Congress’ spending power “may not be used to induce the States to engage in activities that would

5 themselves be unconstitutional.” Dole, 483 U.S. at 210. However, that is precisely what the

6 Executive Order is designed to do

7

6. The Executive Order Is Also Unconstitutionally Vague In Violation Of

8

The Due Process Clause Of The Fifth Amendment

9

A federal law is unconstitutionally vague if it “fails to provide a person of ordinary

10 intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages

11 seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008). “It is

12 a basic principle of due process that an enactment is void for vagueness if its prohibitions are not

13 clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also Desertrain v.

14 City of L.A., 754 F.3d 1147, 1155-56 (9th Cir. 2014); Valle Del Sol Inc. v. Whiting, 732 F.3d

15 1006, 1019 (9th Cir. 2013).

16

The Executive Order is unconstitutionally vague. The Executive Order fails to define key

17 terms, such as “sanctuary jurisdiction.” As stated in a recent Congressional Research Service

18 report, “no official list exists of sanctuary jurisdictions—and the term itself has no formal

19 definition . . . .” See RJN, Ex. 3 at 8, n.30 (CRS Report R44118, Sanctuary Jurisdictions and

20 Criminal Aliens: In Brief, January 10, 2017). Although Richmond and numerous other

21 jurisdictions have been referred to as “sanctuary cities,” there are differences between the

22 ordinances and policies of the various jurisdictions throughout the nation that have been referred

23 to as a “sanctuary city.” The fact that a public entity has been called a sanctuary city, or that it

24 has enacted legislation concerning immigration policies, does not mean that it is a “sanctuary

25 jurisdiction” under the Executive Order. No jurisdiction can determine by the language of the

26 Executive Order if it is a “sanctuary jurisdiction” subject to the Executive Order.

27

The Executive Order is also unconstitutionally vague because it does not define what

28 actions or inactions constitute a ‘willful refusal’ to comply with 8 U.S.C. § 1373. The Executive

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1 Order gives unfettered discretion to the Attorney General and the Secretary of Homeland Security

2 without providing any rules or guidance on how that discretion should be exercised. The

3 Executive Order allows resolution on an ad hoc and subjective basis, with the attendant dangers

4 of arbitrary and discriminatory application. See Grayned, 408 U.S. at 109.

5

The Executive Order is also unconstitutionally vague because it fails to define what is

6 meant by the phrase: “Ensure that jurisdictions that fail to comply with applicable Federal law do

7 not receive Federal funds, except as mandated by law.” Executive Order § 2(c). There is no way

8 for Richmond to know what “applicable Federal law” means under the Executive Order; whether it

9 is 8 U.S.C. § 1373, all immigration laws, or all federal laws. For each of these reasons, the

10 Executive Order is unconstitutionally vague.

11

B. RICHMOND WILL SUFFER IRREPARABLE HARM WITHOUT PRELIMINARY RELIEF

12

As shown above, Richmond is likely to succeed on the merits of its claim that Section 9(a)

13 of the Executive Order is unconstitutional. The Executive Order coerces the City to carry out

14 federal immigration policies, commandeers City resources, is unconstitutionally vague, and

15 imposes penalties without due process. The Executive Order violates the Separation of Powers,

16 the Spending Clause, the Tenth Amendment, the Fourth Amendment, and the Due Process Clause

17 of the Fifth Amendment. Such injury to constitutional rights constitutes irreparable harm. de Jesus

18 Ortega Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the

19 deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”) (quoting

20 Elrod v. Burns, 427 U.S. 347, 373 (1976)); Washington v. Trump, 847 F.3d at 1169 (same).

21

Due to Richmond’s policies regarding immigrants, the Executive Order poses an

22 imminent threat that all federal funding will be withdrawn pursuant to the Executive Order. If

23 federal funds are withdrawn, the result will be catastrophic. As stated by Richmond’s City

24 Manager, Bill Lindsay, withdrawal of federal funds from programs that rely on federal grants

25 would put the City and its residents in a crisis, require a significant reduction in essential services,

26 and endanger the health and safety of Richmond’s residents. Lindsay Dec ¶ 12. As stated by

27 Richmond’s Fire Chief, Adrian Sheppard, loss of federal funding for the Richmond Fire

28 Department Office of Emergency Services would significantly impact the City’s capacity to

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1 prevent, protect against, mitigate, respond to, and recover from terrorist attacks and other

2 catastrophes. Sheppard Dec ¶ 10. Without federal funds the City would need to take drastic

3 action such as reducing RPD patrol services to dangerous levels, eliminating or substantially

4 impairing emergency response services, and reducing government services and personnel to

5 below basic minimum requirements. Lindsay Dec ¶ 12.

6

Richmond also faces imminent and irreparable harm as a result of the uncertainty created

7 by Executive Order Section 9(a). Richmond does not know when federal funding cuts will take

8 place pursuant to the Executive Order, the extent of those cuts, or whether the federal

9 government will “claw-back” funds allocated to ongoing programs. However, Richmond has

10 already begun the process of adopting its annual budget for the fiscal year beginning on July 1,

11 2017. As stated by the City Manager, without preliminary relief and clarification regarding the

12 legality and effect of the Executive Order, the City is in an untenable financial situation, and

13 decisions that must be made while awaiting a final decision in this case which could take

14 multiple budget cycles, could cause a financial crisis. Lindsay Dec ¶ 10. Without preliminary

15 relief, even if Richmond ultimately prevails, the City and its residents, especially its most

16 vulnerable residents, will have suffered irreparable harm by having been deprived of essential

17 services while the case is litigated. Without preliminary relief, the City will be forced to choose

18 whether to continue to provide services to City residents without knowing that the City will be

19 reimbursed by the federal government for those services, or discontinue mandatory and essential

20 services to its residents. Either course of action has dire consequences and subjects the City and

21 its residents to irreparable harm. Id.

22

Moreover, the uncertainty created by the Executive Order threatens the safety and

23 welfare of Richmond’s residents. As stated by Richmond’s Chief of Police, Allwyn Brown,

24 RPD is noticing that residents are reluctant to cooperate out of fear and concern about RPD’s

25 relationship with ICE. Brown Dec ¶ 8. City Council Ordinance No. 29-90 and RPD Policy 428

26 helped Richmond residents to trust that they can report a crime without fear that their

27 involvement will lead to their deportation. That trust is being eroded by the Executive order. Id.

28 The Executive Order has increased fear in the immigrant community and made it harder for RPD

Law Offices

CITY OF RICHMOND’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION;

COTCHETT, PITRE &
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1 to fulfill its mission and protect the public. Brown Dec ¶ 9. The Executive Order is thus

2 interfering with a core function of local government, protecting the safety and welfare of its

3 residents. These harms are ongoing and irreparable. Attempting to comply with the Executive

4 Order is not viable because it is uncertain what actions the City must take to comply, and

5 attempting to do so would likely interfere with policy decisions that the Richmond City Council

6 has made. Lindsay Dec ¶ 13.

7

C. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR A PRELIMINARY

INJUNCTION 8

9

When the United States is a party, equities and the public interest merge. Drakes Bay

10 Oyster Co. v. Jewell, 747 F.3d 1073, 1099 (9th Cir. 2014). Where, as here, there is a likelihood of a

11 constitutional violation, “[t]he public interest and the balance of the equities favor prevent[ing] the

12 violation of a party’s constitutional rights.” Ariz. Dream Act Coal. v. Brewer, No. 15-15307, 2017

13 U.S. App. LEXIS 1919, at *42 (9th Cir. Feb. 2, 2017) (citing Melendres, 695 F.3d at 1002 (“it is

14 always in the public interest to prevent the violation of a party’s constitutional rights”)).

15

The federal government will suffer no harm if the motion is granted, as ICE and other

16 federal agents will continue to enforce federal immigration law. But if a preliminary injunction is

17 denied, Richmond will suffer immediate and tangible harm: Richmond will face a financial crisis,

18 and be forced to choose whether to continue to provide services to City residents without

19 knowing that the City will be reimbursed by the federal government, or discontinue essential

20 services to its residents; the Executive Order will continue to erode trust and increase fear in

21 Richmond’s large immigrant community, making it harder for RPD to fulfill its mission and

22 protect the public; and the City will continue to be coerced to change its laws and policies under

23 the threat of catastrophic harm to the safety and welfare of the City and its residents, in violation

24 of the Tenth Amendment of the Constitution. Richmond is not unique in the harm it will suffer;

25 jurisdictions throughout the nation are facing the same Hobson’s choice. Thus, the Court should

26 issue a nation-wide injunction.

27

28

Law Offices

CITY OF RICHMOND’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION;

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1 V. CONCLUSION

2

For the foregoing reasons, the Court should grant preliminary injunctive relief:

3 (1) prohibiting Defendants from enforcing Section 9(a) of Executive Order;

4 (2) prohibiting Defendants from taking any action pursuant to the Executive Order that would

5

withhold or “claw-back” federal funds appropriated or allocated by Congress; and

6 (3) prohibiting Defendants from taking any action pursuant to the Executive Order that would

7

declare or render Richmond or any jurisdiction ineligible for federal funds.

8

Because the Executive Order applies to jurisdictions throughout the United States, the

9 injunction should apply nationwide.4

10 11
Dated: April 4, 2017 12 13 14 15 Dated: April 4, 2017 16 17 18

Respectfully submitted,
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Joseph W. Cotchett JOSEPH W. COTCHETT
Attorneys for Plaintiff
CITY OF RICHMOND
By: /s/ Bruce Reed Goodmiller BRUCE REED GOODMILLER
Attorneys for Plaintiff

19

20

21

22

23

24

25 4 Because Richmond has shown a likelihood of success on the merits and irreparable harm, it has “necessarily establish[ed] . . . standing to seek injunctive relief.” Shell Offshore, Inc. v.

26

Greenpeace, Inc., 709 F.3d 1281, 1286–87 (9th Cir. 2013). The City’s claims are also ripe. See MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128-129 (2007) (“where threatened action by

27

government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat”); Susan B. Anthony List v. Driehaus, 134 S. Ct.

28 2334, 2341 (2014) (same).

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CITY OF RICHMOND’S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION;

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1

ATTESTATION OF FILING

2

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

3 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

4 hereto.

5

/s/ Nancy L. Fineman

6

NANCY L. FINEMAN

7

Attorney for Plaintiff

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case 3:17-cv-01535-WHO Document 12-1 Filed 04/04/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA 25
Defendants. 26

Case No. 3:17-cv-01535-WHO

DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Judge: Dept.:

May 10, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2

Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535WHO

Case 3:17-cv-01535-WHO Document 12-1 Filed 04/04/17 Page 2 of 3

1

I, ALLWYN BROWN, declare and state as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts

3 set forth in this declaration and, if called as a witness, could and would testify competently

4 thereto.

5

2. I am the Chief of Police for the City of Richmond, California (“Richmond”).

6 I joined the Richmond Police Department (“RPD”) in 1984, and have served as a police officer

7 for over 32 years, including as patrolman, sergeant, captain, deputy chief, and now chief of police.

8

3. The RPD serves a diverse community of more than 100,000 residents.

9

4. The mission of the RPD is to prevent crime, maintain order and enforce the law.

10 To fulfill its mission, the RPD engages in community policing. The community policing model

11 requires active, engaged, and empowered neighborhood residents who freely interact with police

12 without reservations. It is critical that all residents, no matter their immigration status, are able to

13 report crimes and assist in criminal investigations without fear that their immigration status will

14 also be investigated. Over the past decade, the RPD has made significant progress in growing

15 community trust. This has resulted in a significant reduction in crime and victimization. A true

16 and correct copy of my open letter on community policing is attached hereto as Exhibit 1.

17

5. I am familiar with City Council Ordinance Nos. 29-90 and 11-07 which seek to

18 “foster an atmosphere of trust and cooperation between the Richmond Police Department and

19 all persons, regardless of immigration status, residing in the City of Richmond.” RPD policies

20 seek to build trust with all communities while complying with all state and federal laws.

21

6. Policy 428 of the RPD Policy Manual states that it is “department policy,

22 consistent with its obligations under state and federal law, to adhere to the City of Richmond

23 Ordinance 29-90” and that “all individuals, regardless of their immigration status, must feel

24 secure that contacting law enforcement will not make them vulnerable to deportation.” RPD

25 Policy Manual Section 428.4 states: “Nothing in this policy is intended to restrict officers from

26 exchanging legitimate law enforcement information with any other federal, state or local

27 government entity (8 USC § 1373; 8 USC § 1644).” A true and correct copy of Policy 428 of the

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

RPD Policy Manual is attached hereto as Exhibit 2.

_____________________________________________________________________________

DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535 WHO

1

Case 3:17-cv-01535-WHO Document 12-1 Filed 04/04/17 Page 3 of 3

7. I am also familiar with Executive Order 13768, dated January 25, 2017, and titled

2 "Enhancing Public Safety in the Interior of the United States" (the "Executive Order").

3

8. The Executive Order increases fear in the immigrant community and makes it

4 harder for RPD to fulfill its mission and protect the public. Ordinance No. 29-90 and RPD

5 Policy 428 helped Richmond residents to trust that they can report a crime without fear that their

6 involvement will lead to their deportation. That trust is being eroded by the Executive order.

7 RPD is noticing that residents are reluctant to cooperate out of fear and concern about RPD' s

8 relationship with the United States Immigration and Customs Enforcement.

9

9. On March 27, 2017, United States Attorney General Jefferson Sessions

10 announced that "the Department of Justice will require jurisdictions seeking or applying for

11 Department grants to certify compliance with [8 U.S.C.] Section 1373 as a condition for

12 receiving these awards." Sessions also stated that the Justice Department will take "all lawful

13 steps to claw-back any funds awarded to a jurisdiction that willfully violates 1373." The City of

14 Richmond receives over $2.7 million in Justice Department grants, including $625,000 per year

15 from the Community Oriented Policing Services program for three years to hire five police

16 officers, and $150,000 to equip RPD officers with body cameras.

17

10. The RPD believes that its policies are in compliance with all state, federal and

18 constitutional requirements. It is uncertain what actions the City must take to comply with the

19 Executive Order.

20

I declare under the penalty of perjury that the foregoing is true an correct. Executed on

21 April 4, 2017 at Richmond, California.

22

23

24

25 26 27

28

Law Offices COTCHETI, PITRE & McCARTHY, LLP

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Case No. 3:17-cv-01535 WHO

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Case 3:17-cv-01535-WHO Document 12-2 Filed 04/04/17 Page 1 of 2
Exhibit 1

Case 3:17-cv-01535-WHO Document 12-2 Filed 04/04/17 Page 2 of 2
Richmond Police Department
Office of the Chief of Police
1701 Regatta Boulevard, Richmond, CA 94804-7409 Bus: (510) 621-1802 Fax: (510) 620-6880
Greetings:
I want to make it known that we (Richmond Police) value and appreciate our community, and that we expect to continue to rely on the engagement of all in order to help make Richmond safer. Our connection to community is indispensible when it comes to policing Richmond, responding to emergencies and assisting victims in seeking justice. It is my hope that the current climate of fear and anxiety around how immigration regulations are enforced nationally does not slow the progress we've made. The Richmond Police Department (RPD) is a component of local government, a nd its alignment is, and will remain with the priorities, direction and guidance offered by our local elected leaders.
Please know the RPD is committed to a proven effective community policing model that knows the unmistakable truth, that community safety is a responsibility for everyone, and not just a job for the police. This requires active, engaged, and empowered neighborhood residents who freely interact with police without reservation. The RPD does not enforce federal immigration laws - doing so would harm community trust, and run counter to our various crime prevention and reduction efforts. Our approach has long contemplated the reality that Richmond has a substantial undocumented population whose members tend be targets of certain types of criminal victimization, because most criminal offenders are "rational" in their target selection for the reason that they want to avoid being identified and reported to police. Perpetrators assume that certain targets for victimization will not report incidents to the police.
We've made good progress in growing community trust while also reducing crime and victimization, but still much w k remains to be done. Community partners ar e essential to our collective progress mo · g forward.
Yours in service
"Community Policing Dedicated to Superior Service" www.richmondpd.net www.facebook.com/richmondpolicecali

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Exhibit 2

Case 3:17-cv-01535-WHO Document 12-3 Filed 04/04/17 Page 2 of 6

Policy
428

Richmond Police Department
Policy Manual

Immigration Violations

428.1 PURPOSE AND SCOPE
It is the policy of the Richmond Police Department (RPO) to foster trust and cooperation with all people of the city and to encourage them to communicate with RPO officers without fear of inquiry regarding their immigration status. It is also department policy, consistent with its obligations under state and federal law, to adhere to the City of Richmond Ordinance 2990. This ordinance prohibits the use of City resources to assist in the enforcement of federal immigration laws without the specific authorization of the City Manager or the Chief of Police.

428.2 DEPARTMENT POLICY The U.S. Immigration and Customs Enforcement (ICE) has primary jurisdiction for enforcement of the provisions of Title 8, United States Code dealing with illegal entry.
When assisting ICE at its specific request, or when suspected criminal violations are discovered as a result of inquiry or investigation based on probable cause originating from activities other than the isolated violations of8 USC§ 1304; 8 USC § 1324; 8 USC § 1325 and 8 USC § 1326, this department may assist in the enforcement of federal immigration laws.

428.2.1 IMMIGRATION "SWEEPS" AND SPECIAL ENFORCEMENT EFFORTS The Richmond Police Department does not conduct immigration "sweeps" or engage in other concentrated efforts to identify or detain suspected undocumented individuals.
Equal consideration should be given to all suspected violations and not just those affecting a particular race, ethnic group, age group, gender, socioeconomic status, immigration status, or other group when enforcement efforts are increased in any particular area of the city.
The disposition of each contact (e.g., warning, citation, arrest), while discretionary in each case, should not be affected by such factors as race, ethnicity, sexual orientation, immigration status, etc.

428.2.2 ICE REQUEST FOR ASSISTANCE If the U.S. Immigration and Customs Enforcement (ICE) requests assistance from this department for support services, such as traffic control or "keep the peace" efforts, authorization must be obtained from the Chief of Police.
RPO officers shall not participate in ICE operations such as immigration "sweeps", or activities related to immigration issues, other than as emergency back up.

428.2.3 BOOKING
If the officer is unable to reasonably establish an arrestee's identity, the individual may, upon approval of a supervisor, be booked into jail for the suspected criminal violation and held for bail.

A person detained exclusively pursuant to the authority of Vehicle Code § 40302(a) for any Vehicle Code infraction or misdemeanor shall not be detained beyond two hours for the purpose of establishing his/her true identity. Regardless of the status of that person's

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Immigration Violations

identity at the expiration of two hours, he/she shall be released on his/her signature with a promise to appear in court for the Vehicle Code infraction or misdemeanor involved.

428.2.4 NOTIFICATION OF IMMIGRATION AND CUSTOMS ENFORCEMENT It is the policy of the City of Richmond and the Richmond Police Department that the Department shall not comply with Immigration and Customs Enforcement (ICE) hold "requests" or ICE detainers. Arrested persons shall not be held for these hold/retainer "requests." ICE has no legal authority to require compliance with these "requests." The Department shall comply with federal arrest warrants or orders signed by a judge.
ICE personnel shall not be allowed access to the Richmond Police Department Detention Unit (Temporary Holding Facility) unless they are there to pick up a prisoner on a federal warrant or order signed by a judge.
Richmond Police Department personnel shall not notify ICE of individuals who are taken into custody. If an arrested person meets Richmond Police Department criteria to be transported and booked into the County Jail, that person may be subject to an ICE hold or detainer "request" once he or she is booked into the county Jail based on the Contra Costa County Sheriff's Department's policy which provides ICE personnel access to the County Jail and shares information with ICE.
ICE personnel shall not be permitted access to any Richmond Police Department records, including booking sheets, booking logs, or police reports unless they have the approval of a Deputy Chief or Chief of Police.
Any deviations from this policy shall require the approval of a Deputy Chief or the Chief of Police.

428.3 U VISA PROGRAM
In October 2000, the United States Congress passed the Victims of Trafficking and Violence Prevention Act. As part of this Act, Congress sought to strengthen the ability of local law enforcement agencies to detect, investigate, and prosecute crimes against nonresident foreigners. In cases in which the victims are nonresident foreigners, their immigration status in the United States can directly affect their ability to cooperate and assist local law enforcement in the investigation and prosecution of these crimes.
Nonresident foreign victims usually need to be in the United States to be accessible to provide information and testimony as part of an investigation or prosecution. Nonresident foreign victims may also need a place of refuge so they can avoid returning to the same environment in another country where they might be exposed to further crimes. For this reason, Congress created a specific avenue for nonresident foreign crime victims to obtain lawful temporary immigrant status. This was accomplished by amending certain sections of the Immigration and Nationality Act (INA) to create the "U Visa." The Richmond Police Department participates in the U Visa Program.

428.3.1 GENERAL U-VISA INFORMATION (a) Temporary Visa - allowing the victim to remain in the U.S. for up to four (4) years (b) After three (3) years, the victim can apply for permanent residency (c) Victim may legally work in the U.S.; and (d) Nation-wide, a total of only 10,000 U-Visas are issued annually.

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Richmond Police Department
Policy Manual
Immigration Violations

(e) Except for those cases protected under California Penal Code Section 293, U-Visa information/records are subject to the Public Records Access Act.

428.3.2 QUALIFIERS
In order for a Form 1-918, Supplement b to be completed and certified by the Department, the facts of the case under investigation must demonstrate the following:

(a) The non-resident foreign victim has been, is being, or is likely to be "helpful" to an RPO investigation. For the purposes of this policy, the victim is described as being "helpful" when he/she:
1. Possesses and furnishes vital information about a qualifying crime;
2. Demonstrates continual cooperation during the investigation and/or prosecution;
3. Assists investigators with gathering additional vital information; and
4. Makes him/herself available to investigators.

(b) The non-resident foreigner was a victim of an actual crime (listed in subpart C. below) which took place in the United States.
1. If there is no Richmond connection (e.g., the Department has not and does not plan to open an investigation), the request shall be returned to the requester with instructions to forward to the appropriate investigating or charging agency.
2. If a prior investigation and related criminal case has been closed and the dale of the incident exceeds the statute of limitations, the Department shall not process the request without first consulting with the District Attorney's Office.

(c) The non-resident foreign victim sustained physical injury or mental abuse and the crime was one of the following: 1. Rape; 2. Torture; 3. Trafficking; 4. Incest; 5. Domestic violence; 6. Sexual assaults; 7. Abusive sexual contact; 8. Prostitution, sexual exploitation; 9. Female genital mutilation; 10. Abduction; 11. Unlawful criminal restraint; 12. False imprisonment; 13. Blackmail; 14. Extortion; 15. Manslaughter; 16. Murder; 17. Felonious assault; 18. Witness tampering;

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Richmond Police Department
Policy Manual
Immigration Violations

19. Obstruction of justice; 20. Perjury or attempt; 21. Conspiracy; or 22. Solicitation to commit any of the above mentioned crimes.
(d) The decision to complete the certification of Form 1-918, Supplement B, is based solely on these qualifiers. If the application does not satisfy these criteria, the Form shall be returned to the requester uncompleted and "un-signed."

428.3.3 REQUEST FOR ASSISTANCE The Richmond Police Department's U-Visa program is managed by the Lieutenant assigned to the Criminal Investigations Section. A petition for a U-Visa from the U.S. Citizenship and Immigrations Services must be completed on OHS Form 1-918 by the assigned investigator or the assigned prosecutor and must include information on how the individual can assist in a criminal investigation or prosecution in order for a U-Visa to be issued.
Any request for assistance in applying for U-Visa status should be forwarded in a timely fashion to the Investigation Section Sergeant assigned to supervise the handling of any related case. The Investigation Section Sergeant should do the following:
Consult with the assigned detective to determine the current status of any related case and whether an update on the case is warranted.
Review the instructions for completing the certification if necessary. Instructions for completing Form 1-918 can be found on the OHS website at hllp:/lwww.uscis.gov/portallsile/uscis.
Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the certification has not already been completed and that certification is warranted.
Timely address the request and complete the certification if appropriate.
Ensure that any decision to complete or not complete the form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed certification in the case file.

428.4 CONSIDERATIONS PRIOR TO REPORTING TO ICE
The Richmond Police Department is concerned for the safety of local citizens and thus detection of criminal behavior is of primary interest in dealing with any person. The decision to arrest shall be based upon those factors which establish probable cause and not on arbitrary aspects. Race, ethnicity, age, gender, sexual orientation, religion, and socioeconomic status alone are of no bearing on the decision to arrest.

All individuals, regardless of their immigration status, must feel secure that contacting law enforcement will not make them vulnerable to deportation. Members should not attempt to determine the immigration status of crime victims and witnesses or take enforcement action against them absent exigent circumstances or reasonable cause to believe that a crime victim or witness is involved in violating criminal laws. Generally, if an officer suspects that a victim or witness is an undocumented immigrant, the officer need not report the person to ICE unless circumstances indicate such reporting is reasonably necessary.

Nothing in this policy is intended to restrict officers from exchanging legitimate law enforcement information with any other federal, state or local government entity (8 USC § 1373; 8 USC§ 1644).

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Richmond Police Department
Policy Manual
Immigration Violations
428.4.1 U-VISA/T-VISA NONIMMIGRANT STATUS Under certain circumstances, federal law allows temporary immigration benefits to
victims and witnesses of certain qualifying crimes (8 USC § 1101(a)(15)(U); 8 USC § 1101 (a)(15)(T)). A declaration/certification for a U-Visa/T-Visa from the U.S. Citizenship and Immigration Services may be completed on the appropriate U.S. OHS Form supplements (l-918 or 1-914) by law enforcement and must include information on how the individual can assist in a criminal investigation or prosecution in order for a U-Visa/T-Visa to be issued.
Any request for assistance in applying for U-Visa/T-Visa status should be forwarded in a timely manner to the Investigation Section sergeant assigned to supervise the handling of any related case. The Investigation Section sergeant should do the following:
(a) Consult with the assigned detective to determine the current status of any related case and whether further documentation is warranted.
(b) Review the instructions for completing the declaration/certification if necessary. Instructions for completing Forms 1-918/1-914 can be found on the U.S. OHS website.
(c) Contact the appropriate prosecutor assigned to the case, if applicable, to ensure the declaration/certification has not already been completed and whether a declaration/certification is warranted.
(d) Address the request and complete the declaration/certification, if appropriate, in a timely manner.
(e) Ensure that any decision to complete or not complete the form is documented in the case file and forwarded to the appropriate prosecutor. Include a copy of any completed declaration/certification in the case file.

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1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY AND COUNTY OF RICHMOND,

Case No. 3:17-cv-01535-WHO

19

Plaintiff,

20

vs.

21 DONALD J. TRUMP, President of the United States,
22 JOHN F. KELLY, Secretary of the United States Department of Homeland Security,
23 JEFFERSON B. SESSIONS, Attorney General of the United States, and the
24 UNITED STATES OF AMERICA

25

Defendants.

26

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Judge: Dept.:

May 10, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2

Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 12-4 Filed 04/04/17 Page 2 of 5

1

I, WILLIAM LINDSAY, declare and state as follows:

2

1. I am the City Manager of the City of Richmond, California (“Richmond” or the

3 “City”). I have personal knowledge of the facts set forth in this declaration and, if called as a

4 witness, could and would testify competently thereto.

5

2. Under Article IV of the Richmond City Charter, the City Manager is the chief

6 executive officer and the head of the administrative branch of the City Government. The City

7 Manager’s Office is responsible for implementing City Council policy, directing departments and

8 the City’s administrative function, providing day-to-day leadership in policy development and

9 implementation, assuring an efficient and equitable delivery of City services, initiating and

10 developing short and long-term special projects, overseeing the annual budget process, managing

11 the City’s inter-governmental relations and public information functions, and directing major

12 economic development projects.

13

3. In my role as City Manager, I perform these functions. I have been City

14 Manager since 2005 and have completed, and overseen implementation of, twelve budgets for

15 the City. The City budget provides for the City’s services, infrastructure, and economic and

16 community development. A critical component of the City’s budget is federal grants, including

17 grants from the Department of Commerce, Department of Defense, Department of Health and

18 Human Services, Department of Homeland Security, Department of Housing and Urban

19 Development, Department of Justice, Department of Labor, Department of Transportation, and

20 the Environmental Protection Agency.

21

4. The City currently has active grants that have awarded $77.2 million in federal

22 funds to the City. Approximately $50 million of these funds have already been used for

23 ongoing programs. For example, the Richmond Housing Authority receives approximately $26

24 million in grants from the U.S. Department of Housing and Urban Development (HUD) to

25 provide affordable housing. In addition to 559 housing units for low-income, elderly and

26 disabled residents, the Housing Authority provides Section 8 vouchers to 2,006 Richmond

27 residents who can use these subsidies to pay rent anywhere in the City. The housing choice

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

voucher program is the federal government’s major program for assisting very low-income

_____________________________________________________________________________

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

1

Case 3:17-cv-01535-WHO Document 12-4 Filed 04/04/17 Page 3 of 5

1 families, the elderly, and the disabled to afford decent, safe, and sanitary housing in the private

2 market. Other HUD grants include Community Development Block Grant (CDGB) funds

3 which have in the past been used for a variety of purposes, including to provide assistance to

4 programs for lower income persons, to provide emergency and transitional housing for the

5 homeless, to increase housing opportunities for lower income persons, and, most recently, to

6 provide $3.1 million in funding to increase access to City facilities for persons with disabilities.

7

5. The Environmental Protection Agency has awarded Richmond an Environmental

8 Workforce Development and Job Training grant of $192,300 to train 51 students in

9 environmental jobs. The core training program includes 366 hours of instruction in 40-hour

10 HAZWOPER; lead and asbestos abatement; confined space entry; OSHA 10-hour construction

11 safety; refinery safety; emergency response; solar installation; forklift, logistics, and warehouse

12 training; and Richmond BUILD pre-apprenticeship construction. Participants will earn four

13 federal, two state, and three industry certifications and licenses. The City is targeting low

14 income, unemployed, formerly incarcerated, and underemployed veterans and disadvantaged

15 minority residents of Richmond.

16

6. The Department of Justice has granted over $2.7 million in critical funding to

17 support law enforcement in Richmond. For example, Richmond received an award of $625,000

18 per year from the Community Oriented Policing Services program for three years to hire five

19 police officers, and $150,000 to expand the Richmond Police Department’s body-worn camera

20 program. In addition, the Office of Juvenile Justice and Delinquency Prevention awarded

21 $1,500,000 to support the East Bay Mentoring Collaborative to provide vulnerable youth in

22 low-income, high-crime neighborhoods with adult mentors. As a result, the EBMC will serve

23 over 450 additional youth who are at high risk of dropping out of high school and entering the

24 juvenile justice system.

25

7. The Department of Transportation has recently provided over $3 million dollars

26 to improve the condition of arterial streets in the community, and over $400,000 to improve and

27 provide safe routes to school for children

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

_____________________________________________________________________________

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

2

Case 3:17-cv-01535-WHO Document 12-4 Filed 04/04/17 Page 4 of 5

1

8. These federal funds were granted without any preconditions relating to

2 Richmond’s policies concerning United States Immigration and Customs Enforcement (“ICE”).

3 The loss of this revenue would have a catastrophic impact on the City, especially in the areas of

4 public safety and assisting vulnerable populations. The City would be unable to provide critical

5 community services, including mandatory entitlement services. Both federal programs and

6 other programs would be lost or significantly impaired.

7

9. I have read Executive Order 13768 of January 25, 2017, entitled “Enhancing

8 Public Safety in the Interior of the United States” (the “Executive Order”). The Executive Order

9 threatens to withdraw federal funding from the City. Essential City services would be affected by

10 cuts in federal funds, including housing, public safety, environmental protection, employment and

11 training, literacy, and transportation programs.

12

10. Under Section 1(b) of Article IV of the Richmond City Charter the City Manager

13 is required to prepare an annual budget for review and approval by the City Council. Richmond

14 has already begun the process of adopting the annual budget for the fiscal year beginning on

15 July 1, 2017. Without preliminary relief and clarification regarding the legality and effect of the

16 Executive Order, the City is in an untenable financial situation, and decisions that must be made

17 while awaiting a final decision in this case which could take multiple budget cycles, could cause

18 a financial crisis.

19

11. Without preliminary relief, the City will be forced to choose whether to continue

20 to provide services to City residents without knowing that the City will be reimbursed by the

21 federal government for those services, or discontinue mandatory and essential services to its

22 residents. Either course of action has dire consequences and subjects the City and its residents to

23 irreparable harm.

24

12. Withdrawal of federal funds from programs that rely on federal grants would put

25 the City and its residents in a crisis, and require a significant reduction in staff and contract

26 services. The loss of federal revenue would endanger the health and safety of Richmond’s

27 residents. Without federal funds the City would need to take drastic action such as reducing

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

Richmond Police Department patrol services to dangerous levels, eliminating or substantially

_____________________________________________________________________________

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

3

Case 3:17-cv-01535-WHO Document 12-4 Filed 04/04/17 Page 5 of 5

1 impairing emergency response services, and reducing government services and personnel to

2 below basic minimum requirements.

3

13. Attempting to comply with the Executive Order is not viable because it is

4 uncertain what actions the City must take to comply, and attempting to do so would likely

5 interfere with policy decisions that the Richmond City Council has made.

6

14. All of these considerations need to be reflected in the annual budget which the

7 City is required to adopt on or before July 1, 2017.

8

15. A true and correct copy of Richmond City Council Ordinance No. 29-90,

9 adopted August 13, 1990, is attached hereto as Exhibit 1.

10

16. A true and correct copy of Richmond City Council Resolution No. 11-07,

11 adopted February 6, 2007, is attached hereto as Exhibit 2.

12

I declare under the penalty of perjury that the foregoing is true and correct. Executed on

13 April 4, 2017 at Richmond, California. 14 15

£~AY

16

17

18

19

20

21

22

23

24

25

26

27

28

Law Offices COTCHETI, PITRE & McCARTHY, LLP

DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

4

Case 3:17-cv-01535-WHO Document 12-5 Filed 04/04/17 Page 1 of 4
Exhibit 1

294

Case 3:17-cv-01535-WHO Document 12-5 Filed 04/04/17 Page 2 of 4

ORDINANCE NO. 29-90 N.S.

AN ORDINANCE OF THE CITY OF RICHMOND, CALIFORNIA, ADOPTING CERTAIN POLICIES REGARDING THE REQUEST FOR INFORMATION, ASSISTANCE OR COOPERATION .._BY- THE IMMIGRATION AND NATURALIZATION SERVICE OF THE UNITED STATES DEPARTMENT OF JUSTICE

WHEREAS, the Council of the City of Richmond desires to

foster an atmosphere of trust and cooperation between the

Richm' ond

Police

Department .

and

all .

persons,

regardless

of

J •. imm"igration status, residing in the City of Richmond; and

1.-. .

WHEREAS, the creation of such trust and cooperation is

important to law enforcement efforts in the City of Richmond in
'
the war on drugs and criminai activity generally; and

WHEREAS, concerns have been raised that this positive

environment may be compromised by certain actions engaged in by

agents of the Immigration and Naturalization Service of the

United States Department of ~ustice in the City of Richmond when

aided by information or assistance provided by City of Richmond

officers and employees; and

WHEREAS, the Council of the City of Richmond_desires to

respond to the community's concerns in an effective manner. NOW, THEREFORE, the Council of the City of Richmond do

I_

.·
ordain as follows:

Section 1. The Council of the City of Richmond'h~reby

declares that it does not condone the detention of citizens and

non-citizens by the Immigration and Naturalization Service based solely upon physical profiles or a lack of probable cause;

Section 2. In order to address the fears expressed by the immigrant and refugee community in the City of Richmond

concerning Immigration and Naturalization Service activities in

the City of Richmond while preserving the ability of the Richmond

Police Department to utilize all available resources to fight

criminal activity, the Council o.f the City of Richmond hereby

adopts the following policy:

II.

1.' All.officers and employees of the ~ity of Richmond,

:".
while acting in their official capacities, who receive any oral

or written request from the Immigration and Naturalization

Service for information, cooperation or assistance shall refer

1

Case 3:17-cv-01535-WHO Document 12-5 Filed 04/04/17 Page 3 of 4
.; ·fti!~t':li;\bf):trl·t·'t · liji;~i..~_~fl'."°-'·" fl',;·;'" ..
such request to the City Manager or the Chief ·of Police. The

295

City Manager or the_ Chief of Police shall decide whether such
'' ,,
information shall be given or whether such _cooperation or

assistance shall be provided to the Immigration and

Naturalization Service. In exercising their discretion, the City

Manager and the Chief of Police shall consider the possible

, 1. dismuption and inconvenience that may be experienced by'the

immigrant and refugee community in the City of Richmond and any

• 1 requirements of any federal, state or local law or court

decision. Nothing delineated in the foregoing policy shall be

'I

'

construe~ to prevent the City Manager or the Chief of Police from

providing information, assistance or cooperation to the _Immigration and Naturalization ~ervice regarding the criminal

violation of any .federal, state or local law.

2. The City Manager and the Chief of Police shall report to

the City Council regarding the activities of the Immigration and

Naturalization Service within the City of Richmond as requested

by the City Council or as the City Manager or Chief of Police may

deem appropriate.

3. · The City Manager shall distribute. a copy of this policy

to all current and new officers and employees of the City of

Richmond and shall emphasize the importance of complying with

this City Council policy.

. ••• ··1

Section 3. If any section, subsection, subdivision,

paragraph, sentence, clause or phrase of this Ordinance is for

any reason held to be unconstitutional or invalid, such a

decision shall not affect the validity of the remaining. portions

of this Ordinance. The City Council hereby declares that it

would have passed each section, subsection, subdiviaion,

paragraph, sentence, clause or phrase of this Ordinance

irrespective of the unconstitutionality 6r invalidity of any -.

section, subsection, subdivision, paragraph, sentence, clause or

phrase.

' .

-.

First read at a regular meeting of the Council of the.City of Richmond, California, held August 13, 1990
2

Case 3:17-cv-01535-WHO Document 12-5 Filed 04/04/17 Page 4 of 4

and finally passed and adopted at a regular meeting thereof held

August 20, 1990

, by the following vote:

AYES:

Councilmembers Niccolls, Corbin, Marquez, Ziesenhenne, .MacDiarmid, Griffin and Vice-Mayor McMillan

NOES: None

ABSENT: Councilmember Washington and Mayor Livingston

J..

"

Approved:

'·t I,
GEORGE L. LIVINGSTON Mayor

Approved as to form:

EULA M. BARNES Clerk of the City of Richmond

I

(SEAL)

.. '!

·MALCOLM HUNTER City Attorney

I.
I ., ''I' ' I

State of California

County of·Contra Costa

SS.

I.

!: City of Richmond

I certify that the foregoing is a true copy of Resolution No. 29-90 N.S . .finally passed and adopted by the Council of the City of Richmond at a regular meeting held August 13, 1990, and published in accordance with law.

3

EULA M. BARNES

11

Clerk of the City of Richmond

By:~-~

Deputy City Clerk

Case 3:17-cv-01535-WHO Document 12-6 Filed 04/04/17 Page 1 of 3
Exhibit 2

Case 3:17-cv-01535-WHO Document 12-6 Filed 04/04/17 Page 2 of 3
RESOLUTION NO. 11-07
A RESOLUTION OF THE RICHMOND CITY COUNCIL REAFFIRMING ITS SUPPORT FOR COMPREHENSIVE IMMIGRATION REFORM THAT IS FAIR, JUST AND HUMANE
WHEREAS, The City of Richmond welcomes and values all of its residents and supports them to live and work free from discrimination, hostility, abuse, violence, exploitation and fear of local, state and federal law enforcement; and
WHEREAS, one fourth of the residents of Richmond are persons who were born in foreign countries and who have come to the U.S. in search of better lives for themselves and their families; and
WHEREAS; National experts and policy makers agree our federal immigration policy is broken, inconsistent and in need of reform; and
WHEREAS; Most economists agree that immigrants and undocumented workers are good for the US economy and studies show that immigrants contribute $25-30 billion more in taxes than they receive in services; and
WHEREAS; A crackdown on illegal immigration in 2004 caused a shortage of workers needed to bring in the agricultural crop in the Western United States which caused a $1 billion dollar loss for the industry; and
WHEREAS, The City of Richmond in resolution 35-06 of April 18, 2006 called for a comprehensive immigration reform bill that is fair, just and humane; that recognizes all immigrants for their contributions to our economic and social life; and
WHEREAS The City of Richmond passed Ordinance 29-90 to affirms its desire to foster an atmosphere of trust and cooperation between the Richmond Police Department and all residents of the city of Richmond; and
WHEREAS, Immigration and Customs Enforcement (ICE) has acknowledged through press reports that its officers identify themselves as “police”, which technically correct misleads the residents of Richmond, by suggesting they are Richmond Police Department officers investigating local crimes and undermines the trust built by the Richmond Police Department; and
WHEREAS, the community and church leaders have received also numerous complaints of people arrested at places of work and in public places, for which no warrants existed, creating a climate of fear among immigrant families; and
NOW, THEREFORE, BE IT RESOLVED that the US Department of Homeland Security and the US Immigration and Customs Enforcement be called upon to issue a moratorium on raids until the US Congress comes to an agreement on comprehensive immigration reform so that the debate can be carried out in good faith, rather than against a backdrop of fear, repression and intimidation; and
BE IT FURTHER RESOLVED that the City of Richmond reaffirms the terms of ordinance No. 20-90 ordering all officers and employees of this City not to inform, assist or cooperate with the Immigration and Customs Enforcement (ICE) formerly known as Immigration and Naturalization Service, without the specific authorization of the Richmond City Manager or the Chief of Police; and
BE IT FURTHER RESOLVED that the City of Richmond calls for the Immigration and Customs Enforcement (ICE) officers conducting any future official business in Richmond to clearly and specifically identify themselves as federal immigration officers and to proactively and clearly state that they are not officers of the Richmond Police Department; and
BE IT FURTHER RESOLVED that the City of Richmond reaffirms its support for comprehensive immigration reform bill that is fair, just and humane; that recognizes all immigrants for their contributions to our economic and social life; that provides a system that addresses the backlog of visas to reunite families currently separated; that provides

Case 3:17-cv-01535-WHO Document 12-6 Filed 04/04/17 Page 3 of 3

undocumented workers and students with a path toward permanent residency; and prevents the criminalization of the estimated 12 million undocumented immigrants currently residing in the United States; and

BE IT FURTHER RESOLVED that the Richmond City Council directs the Clerk of the Richmond City Council to send copies of this resolution to Michael Chertoff, Secretary for Homeland Security, and to Federal representatives including Senator Dianne Feinstein, Senator Barbara Boxer, and Congressman George Miller.

-----------------------------------------------
I certify that the foregoing resolution was passed and adopted by the Council of the City of Richmond, California at a meeting held on February 6, 2007, by the following vote:

Ayes:

Councilmembers Bates, Butt, Lopez, Marquez, Rogers, Sandhu, Thurmond, Viramontes, and Mayor McLaughlin

Noes:

None

Abstentions:

None

Absent:

None

APPROVED:

DIANE HOLMES Clerk of the City of Richmond
[SEAL]

GAYLE McLAUGHLIN Mayor
APPROVED AS TO FORM:

JOHN EASTMAN City Attorney

State of California

}

County of Contra Costa : ss

City of Richmond

}

I certify that the foregoing is a true copy of Resolution No. 11-07, finally passed and adopted by the Council of the City of Richmond at a meeting held on February 6, 2007.

Case 3:17-cv-01535-WHO Document 12-7 Filed 04/04/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO

DECLARATION OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Judge: Dept.:

May 10, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2

Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

DECLARATION OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535 WHO

Case 3:17-cv-01535-WHO Document 12-7 Filed 04/04/17 Page 2 of 3

1

I, GAYLE MCLAUGHLIN, declare and state as follows:

2

1. I am a resident of the State of California. I have personal knowledge of the facts

3 set forth in this declaration and, if called as a witness, could and would testify competently

4 thereto.

5

2. I am currently a member of the City Council of the City of Richmond, California

6 (“Richmond”). I was originally elected to the Richmond City Council in 2004. I was elected as

7 Richmond’s Mayor in 2006 and served as Mayor from January 2007 to January 2015. Since the

8 City Charter only allows two terms as Mayor, I chose to run for a City Council seat to continue

9 to serve the City of Richmond. I was sworn-in as a City Councilmember on January 13, 2015.

10

3. In early 2007, in my first year as mayor, we experienced a host of raids by United

11 States Immigration and Customs Enforcement (“ICE”) in Richmond that caused great pain and

12 suffering in our community. Community and church leaders received numerous complaints of

13 people arrested at places of work and in public places, for which no warrants existed, creating a

14 climate of fear among immigrant families. In response, I spoke at various community meetings

15 reassuring our community that we welcome and appreciate all our residents in Richmond and will

16 stand up for the rights of all and oppose these raids. On May 17, 2007, I testified at a

17 Congressional hearing in Washington DC on the traumatic impact to families and children in our

18 community as a result of these ICE raids.

19

4. In February of 2007, I brought forward a resolution, unanimously approved by the

20 City Council, that called for a moratorium on the raids until the United States Congress comes to

21 an agreement on comprehensive immigration reform so that the debate can be carried out in good

22 faith rather than against a backdrop of fear, repression and intimidation and reaffirmed the City’s

23 support for Ordinance 20-90.

24

5. During my tenure as Mayor, violent crime and property crimes showed significant

25 declining trends: homicides decreased nearly 75 percent, with 2014 having the lowest homicide

26 number on record, dating to 1971. That decline is attributable to violence prevention programs

27 along with City officials and the Richmond Police Department reaching out to the immigrant

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

community so that residents can report a crime and assist in investigations without fear that their

_____________________________________________________________________________

DECLARATION OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535 WHO

1

Case 3:17-cv-01535-WHO Document 12-7 Filed 04/04/17 Page 3 of 3

involvement will lead to their deportation or the deportation of their loved ones. Based on my

2 discussions, that hard-earned trust is being undermined by Executive Order 13768, dated January

3 25, 2017, and titled "Enhancing Public Safety in the Interior of the United States" (the

4 "Executive Order").

5

6. I declare under the penalty of perjury that the foregoing is true and correct.

6 Executed on April 4, 2017 at Richmond, California.

7 8

~UJGJH1c~.

9

10

11

12

13

14

15'

16

17

18

19

20

21

22

23

24

25

26

27

28

Law Offices C OTCHE1T, PITRE &
M CCARTHY, LLP

DECLARATION OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535 WHO

2

Case 3:17-cv-01535-WHO Document 12-8 Filed 04/04/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY AND COUNTY OF RICHMOND,

Case No. 3:17-cv-01535-WHO

19

Plaintiff,

20

vs.

21 DONALD J. TRUMP, President of the United States,
22 JOHN F. KELLY, Secretary of the United States Department of Homeland Security,
23 JEFFERSON B. SESSIONS, Attorney General of the United States, and the
24 UNITED STATES OF AMERICA

25

Defendants.

26

DECLARATION OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Judge: Dept.:

May 10, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2

Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

DECLARATION OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 12-8 Filed 04/04/17 Page 2 of 3

1

I, ADRIAN SHEPPARD declare and state as follows:

2

1. I have personal knowledge of the facts set forth in this declaration and, if called as

3 a witness, could and would testify competently thereto.

4

2. I am currently the Fire Chief of the City of Richmond, California and have served

5 in that capacity since January 2015. I have been a firefighter for twenty years, beginning with the

6 City of Oakland in 1997. Prior to being a firefighter, I served in the United States Air Force.

7

3. The Richmond Fire Department is responsible for emergency medical services, fire

8 suppression, mitigation of disasters, and rescue activities. Firefighters inspect commercial and

9 waterfront facilities on an annual basis within an area of 56.1 square miles, including 32 miles of

10 shoreline. Personnel are assigned to seven stations throughout the city and respond to 11,000

11 alarms per year. All personnel are trained to the level of EMT-D and HazMat First Responder

12 Operational.

13

4. In addition, the Richmond Fire Department Office of Emergency Services (“OES”)

14 leads the City in comprehensive emergency management including planning and preparedness

15 for, response and recovery from, and mitigation of natural, manmade, and accidental incidents of 16 high consequence. OES’s core function is to promote, facilitate, and support the efforts of the

17 City to prepare for, respond to, and recover from disasters, emergencies and complex incidents of

18 all types, including both natural disasters, such as earthquakes, and manmade incidents and

19 events, such as terrorist attacks. Among its many responsibilities, OES provides emergency

20 management training, and engages in hazard planning, and coordinates public and private efforts

21 to recover following incidents.

22

5. OES training and operations are significantly supported by federal grant funding

23 from the Department of Homeland Security’s Federal Emergency Management Agency (FEMA)

24 that is administered by the State of California Governor’s Office of Emergency Services (Cal

25 OES). OES receives the benefit of these grants either directly and indirectly through the activities

26 of Contra Costa County OES, including the State Homeland Security Grant Program (SHSGP),

27 the Emergency Management Performance Grant (EMPG) program, Urban Areas Security

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

_____________________________________________________________________________

DECLARATION OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

1

Case 3:17-cv-01535-WHO Document 12-8 Filed 04/04/17 Page 3 of 3

Initiative (UASI), and the Pre-Disaster Mitigation (PDM) program. All four grant programs are

2 critical to keeping our community safe.

3

6. SHSGP provides funding to ensure that local communities have the capability to

4 prevent, protect against, mitigate, respond to, and recover from acts of terrorism.

5

7. EMPG funding supports activities to prevent, prepare for, mitigate against, respond

6 to, and recover from emergencies and disasters of all types - such as earthquake, fire, and flood

7 hazards; transportation system hazards; and intentional and/or terrorism-related threats.

8

8. UASI funding addresses multiple homeland security needs, including

9 cybersecurity, communications interoperability, emergency medical needs and public health

l 0 preparedness, public information and warning needs, and infrastructure protection.

11

9. The PDM program supports the creation of pre-disaster hazard mitigation

12 programs to reduce public exposure to risk.

13

10. Loss of federal funding for OES activities would significantly impact the City's

14 capacity to prevent, protect against, mitigate, respond to, and recover from terrorist attacks and

15 other catastrophes.

16

I declare under the penalty of perjury that the foregoing is true and correct. Executed on

17 April 4, 2017 at Richmond, California. 18 19 20 21 22 23 24 25 26 27 28

AllJL;;j?

Law Offices COTCHETr, PITRE & McCARTHY, LLP

DECLARATION OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535-WHO

2

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1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO

DECLARATION OF TOM BUTT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Judge: Dept.:

May 10, 2017 2:00 p.m. Honorable William H. Orrick Courtroom 2

Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

DECLARATION OF TOM BUTT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535 WHO

Case 3:17-cv-01535-WHO Document 12-9 Filed 04/04/17 Page 2 of 3

1

I, TOM BUTT, declare and state as follows:

2

1. I have personal knowledge of the facts set forth in this declaration and, if called as

3 a witness, could and would testify competently thereto.

4

2. I am the Mayor of the City of Richmond, California (“Richmond”). I was elected

5 Mayor in November of 2014 and was sworn-in on January 13, 2015. Prior to serving as Mayor,

6 I served on the Richmond City Council for twenty years and served as Richmond’s vice-mayor

7 in 2002 and 2012.

8

3. Richmond is one of the most racially diverse cities in the Bay Area.

9 Approximately one-third of Richmond residents are immigrants. In particular, in the late 1980s,

10 Richmond experienced an increase of immigrants arriving from Central America. Many of these

11 immigrants had been the victims of political persecution. Since arriving in Richmond, these 12 individuals and their families have contributed to the City’s success.

13

4. I am confident that the policies we have put in place to promote a community

14 policing culture comply with all federal and state laws. However, Executive Order 13768, dated 15 January 25, 2017, and titled “Enhancing Public Safety in the Interior of the United States” (the 16 “Executive Order”) suggests that Richmond will be targeted for protecting our residents.

17

5. On March 27, 2017, United States Attorney General Jeff Sessions announced that

18 “the Department of Justice will require jurisdictions seeking or applying for Department grants

19 to certify compliance with [8 U.S.C.] Section 1373 as a condition for receiving these awards,”

20 and that the Justice Department will take “all lawful steps to claw-back any funds awarded to a

21 jurisdiction that willfully violates 1373.”

22

6. It is uncertain what actions the City must take to comply with the Executive Order

23 or whether the Executive Order is constitutional.

24

7. The City Council is required to adopt an annual budget on or before the first day

25 of the fiscal year, July 1. The City Manager has already begun the process of preparing a 26 proposed budget for the Council’s approval. A significant portion of the City’s budget relies on

27 federal grants. Without preliminary relief, the City will be forced to adopt a budget without

28
Law Offices COTCHETT, PITRE & MCCARTHY, LLP

_____________________________________________________________________________

DECLARATION OF TOM BUTT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

Case No. 3:17-cv-01535 WHO

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knowing that the City will be reimbursed by the federal government for funds that have already

2 been granted without preconditions.

3

8.

Richmond has active grants that have awarded $77.2 million in federal funds to the

4 City. Approximately $26 million of those grants are from the Department of Housing and Urban

5 Development and go toward public housing and Section 8 vouchers. Richmond relies on these

6 grants in providing necessary services to its residents. Under the Executive Order, funds granted

7 by Congress without any preconditions and which the City is relying upon could be withdrawn.

8 Withdrawal of federal funds would have a devastating impact on the City's finances and would

9 threaten the safety and welfare of residents.

10

9.

I declare under penalty of perjury that the foregoing is true and correct. Executed

11 on April 4, 2017 at Richmond, California.

12

~tA-

13

T UT

14

15

16

17 18 19

20 21 22 23 24 25 26 27
28

Law Offices

DECLARATION OF TOM BUTT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

COTCHETI, PITRE & Case No. 3:17-cv-01535 WHO

2

MCCARTH Y, LLP

Case 3:17-cv-01535-WHO Document 12-10 Filed 04/04/17 Page 1 of 4

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S MOTION FOR PRELIMINARY INJUNCTION
Date: May 10, 2017 Time: 2:00 p.m. Judge: Honorable William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S MOTION FOR PRELIMINARY INJUNCTION; 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 12-10 Filed 04/04/17 Page 2 of 4

1

Plaintiff City of Richmond hereby respectfully requests, pursuant to Federal Rule of

2 Evidence 201, that this Court take judicial notice of the following documents.

3

1. Attached hereto as Exhibit 1 is a true and correct copy of Executive Order 13768,

4 entitled “Enhancing Public Safety in the Interior of the United States.” The Executive Order is

5 posted on the Whitehouse press office website, at https://www.whitehouse.gov/the-press-

6 office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.

7

2. Attached hereto as Exhibit 2 is a true and correct copy of a press release entitled

8 “Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions.” The press release

9 is posted on the website of the United States Department of Justice, Office of Public Affairs, at

10 https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-

11 jurisdictions.

12

3. Attached hereto as Exhibit 3 is a true and correct copy of a report by

13 Congressional Research Service, Report R44118, entitled “Sanctuary Jurisdictions and Criminal

14 Aliens: In Brief,” dated January 10, 2017. According to the Library of Congress website,

15 http://www.loc.gov/crsinfo/, the Congressional Research Service is a nonpartisan, legislative

16 branch agency within the Library of Congress.

17

Each of these documents is judicially noticeable because government memoranda,

18 bulletins, letters, and opinions are matters of public record appropriate for judicial notice.

19 Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005) (judicially noticing an administrative

20 bulletin); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take

21 judicial notice of records and reports of state administrative bodies), overruled on other grounds

22 by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 (1991); see also Fed. R. Evid.

23 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court may judicially

24 notice matters of public record unless the matter is a fact subject to reasonable dispute).

25

Exhibits 1 and 2 are also judicially noticeable because they are posted to official

26 government websites. See Fed. R. Evid. 201(b)(2) (allowing judicial notice of facts capable of

27 accurate and ready determination by resort to sources whose accuracy cannot reasonably be

28 questioned); Crawford v. Marion County Election Bd., 553 U.S. 181, 199 n.18 (2008) (judicial

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S MOTION FOR PRELIMINARY
INJUNCTION; 3:17-cv-01535-WHO
1

Case 3:17-cv-01535-WHO Document 12-10 Filed 04/04/17 Page 3 of 4

1 notice of information on government website); Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,

2 998–99 (9th Cir. 2010) (same); Paralyzed Veterans of America v. McPherson, No. C 06–4670

3 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (noting courts commonly take judicial

4 notice of information and documents on government websites; citing cases).

5 6
Dated: April 4, 2017 7 8 9 10 Dated: April 4, 2017 11 12 13

Respectfully submitted,
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Nancy L. Fineman
NANCY L. FINEMAN Attorneys for Plaintiff
CITY OF RICHMOND
By: /s/ Bruce Reed Goodmiller
BRUCE REED GOODMILLER Attorneys for Plaintiff

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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S MOTION FOR PRELIMINARY
INJUNCTION; 3:17-cv-01535-WHO
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1

ATTESTATION OF FILING

2

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

3 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

4 hereto.

5

/s/ Nancy L. Fineman

6

NANCY L. FINEMAN

7

Attorney for Plaintiff

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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S MOTION FOR PRELIMINARY
INJUNCTION; 3:17-cv-01535-WHO
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Exhibit 1

Executive Order: Enhancing Public Safety in the Interior of the United States | whitehous... Page 1 of 8 Case 3:17-cv-01535-WHO Document 12-11 Filed 04/04/17 Page 2 of 9
the WHITE HOUSE PRESIDENT DONALD J. TRUMP

From the Press Office
Speeches & Remarks Press Briefings Statements & Releases Nominations & Appointments Presidential Actions
Executive Orders Presidential Memoranda Proclamations Related OMB Material Legislation Disclosures

The White House Office of the Press Secretary
For Immediate Release

SHARE
January 25, 2017 THIS:

Executive Order: Enhancing Public Safety in the Interior of the United States

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EXECUTIVE ORDER

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ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation's immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
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Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.
Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a) (6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
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(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C. 1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
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(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.
Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as "Secure Communities" referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
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(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.
Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are
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hereby directed to collect relevant data and provide quarterly reports on the following: (a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons; (b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and (c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States. Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order. Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE, January 25, 2017.
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HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN USA.gov Privacy Policy Copyright Policy
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Exhibit 2

411/2017

Case 3A:t1to7rn-ecy vG-e0ne1ra5l J3e5lf-SWessHionOs DeDliveorscRuemmearnksto1n 2Sa-'1lcl2uErYFJuilreisddict0io4ns/0IO4P/A17I DepParatmgenet o2fJuosftic3e

JUSTICE NEWS
Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions Washington, DC, United States - Monday, March 27, 2017

Good afternoon. The Department of Justice has a duty to enforce our nation's laws, including our immigration laws. Those laws require us to promptly remove aliens when they are convicted of certain crimes.
The vast majority of the American people support this common-sense requirement. According to one recent poll, 80 percent of Americans believe that cities that arrest illegal immigrants for crimes should be required to tum them over to immigration authorities.
Unfortunately, some states and cities have adopted policies designed to frustrate the enforcement of our immigration laws. This includes refusing to detain known felons under federal detainer requests, or otherwise failing to comply with these laws. For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement (ICE) detainer requests with respect to individuals charged or convicted of a serious crime. The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder.
Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on our streets.
We all remember the tragic case of Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father. The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions.
Just eleven weeks before the shooting, San Francisco had released Sanchez from its custody, even though ICE had filed a detainer requesting that he be kept in custody until immigration authorities could pick him up for removal. Even worse, Sanchez admitted that the only reason he came to San Francisco was because of its sanctuary policies.
A similar story unfolded just last week, when Ever Valles, an illegal immigrant and Mexican national, was charged with murder and robbery of a man at a light rail station. Valles was released from a Denver jail in late December, despite the fact that ICE had lodged a detainer for his removal.
The American people are justifiably angry. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted for criminal offenses puts whole communities at risk - especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.
DUls, assaults, burglaries, drug crimes, gang crimes, rapes, crimes against children and murders. Countless Americans would be alive today - and countless loved ones would not be grieving today - if the policies of these sanctuary jurisdictions were ended.
Not only do these policies endanger the lives of every American; just last May, the Department of Justice Inspector General found that these policies also violate federal law.
The President has rightly said that this disregard for the law must end. In his executive order, he stated that it is the policy of the executive branch to ensure that states and cities comply with all federal laws, including our immigration laws.

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1/2

411/2017

Case 3A:t1to7rn-ecy vG-e0ne1ra5l J3e5lf-SWessHionOs DeDliveorscRuemmearnksto1n 2Sa-'1lcl2uErYFJuilreisddict0io4ns/0IO4P/A17I DepParatmgenet o3fJuosftic3e

The order also states that "the Attorney General and the Secretary [of Homeland Security] ... shall ensure that

jurisdictions that willfully refuse to comply• with the law "are not eligible to receive Federal grants, except as deemed

necessary for law enforcement purposes by the Attorney General or the Secretary."

Today I am urging all states and local jurisdictions to comply with all federal laws, including 8 U.S.C. Section 1373. Moreover, the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition for receiving these awards.

This policy is entirely consistent with the Department of Justice's Office of Justice Programs (OJP) guidance issued last July under the previous administration. This guidance requires state and local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants. It also made clear that failure to remedy violations could result in withholding of grants, termination of grants, and disbarment or ineligibility for future grants.
The Department of Justice will also take all lawful steps to claw-back any funds awarded to a jurisdiction that willfully violates Section 1373.

In the current fiscal year, department's OJP and Community Oriented Policing Services anticipate awarding more than $4.1 billion dollars in grants.

I urge our nation's states and cities to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to re-think these policies. Such policies make their cities and states less safe, and put them at risk of losing valuable federal dollars.
The American people want and deserve a lawful immigration system that keeps us safe and serves our national interest. This expectation is reasonable, and our government has a duty to meet it. And we will meet it.

Speaker: Attorney General Jeff Sessions

Office of the Attorney General
Updated March 31, 2017

https:l/www.justice.rp1/opa/speec1Yalkrney-general-jelf-sessions-delivers-remarks-sancb.JEr)'-jurisdictions

212

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Exhibit 3

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Congressional

,.:;;;:;;;;!!!J1•;;~~·~ Research Service

,Z

4 ' Informing the legislative debate since 1914 - - - - - - - - - - - - - -

Sanctuary Jurisdictions and Criminal Aliens: In Brief
William A. Kandel Analyst in Immigration Policy January 10, 2017

Congressional Research Service
7-5700 www.crs.gov
R44118
CRS REPORT Prepared for Members and Committees of Congress - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case 3:17-cv-01535-WHO Document 12-13 Filed 04/04/17 Page 3 of 17
Sanctuary Jurisdictions and Criminal Aliens: In Brief
Summary
The prominence of immigration enforcement issues during the 2016 presidential election as well as publicity surrounding crimes committed by some unauthorized aliens have reignited debates over immigration enforcement in the interior ofthe country. One homicide case, the July 2, 2015, slaying of a woman in San Francisco by a reported unauthorized alien with a criminal and deportation history, is noteworthy, because the law enforcement agency in question reportedly did not honor an immigration detainer issued by the Department ofHomeland Security's (DHS's) Immigration and Customs Enforcement (ICE) for the individual who committed the crime. ICE has made the removal of certain criminal aliens its top priority. Funding for all criminal alien programs has increased substantially since their inception in FY2004. In FY2016, funding amounted to $341 million, compared to $6 million in FY2004.
In 2014, noncitizens represented 7.0% ofthe U.S. population. At the end of2014, noncitizens accounted for 11.2% of the 209,561 individuals incarcerated in federal prisons, 3.5% ofthe 1,268,740 individuals incarcerated in state prisons, and 4.6% of the entire incarcerated population. These figures are understated because they do not include figures for California which did not report its non-citizen incarcerated population.
Drug and immigration offenses represented almost 90% of all federal offenses committed by noncitizens in FY2013. Incarceration data from FY2013 indicate that drug offenders accounted for 50% ofall offenders in federal prison, with incarcerated noncitizens having a comparable if slightly lower proportion in this offense category (46%) compared with incarcerated citizens (52%). Although immigration offenders represented almost 12% of all incarcerated federal offenders, they represented 43% of all federal noncitizen offenders. Published data on the state and local prisoners by offense type and citizenship status are not available.
Immigration enforcement is a federal responsibility, but efforts have been made continually to use the potential "force multipliers" offered by local law enforcement. Legislation enacted in 1996 allows the federal government to enter into "287(g)" agreements with state and local law enforcement jurisdictions that permit it to delegate certain immigration enforcement functions to state and local law enforcement agents. After the September 11, 2001 terrorist attacks, this program and others involving federal and state and local cooperation expanded.
ICE also operates the Criminal Alien Program (CAP), which is guided by the Priority Enforcement Program (PEP), a set ofimmigration enforcement priorities that describe which foreign nationals should be removed and in what priority order. PEP also employs "interoperability," a data sharing infrastructure between DHS and the Department ofJustice (DOJ) that screens individuals for immigration-related violations when they are booked by law enforcementjurisdictions. PEP replaced the former Secure Communities, which many jurisdictions with large foreign-born populations had opposed.
In recent years, some jurisdictions have expressly defmed or limited their roles and the activities oftheir employees regarding immigration enforcement. These have been referred to as "sanctuary" jurisdictions. Critics of sanctuaryjurisdictions contend that they impede law enforcement's primary mission in ways that could lead to calamitous outcomes (such as the homicide in San Francisco) or could encourage illegal immigration. Supporters maintain that they are needed because ofresource and legal constraints, the need to avoid the disruption ofcritical municipal services by diverting local law enforcement personnel to handle immigration enforcement, and community policing concerns.
Congress may choose to consider several issues, including whether the potentially positive impacts on public safety of state and local involvement in immigration enforcement outweigh the
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potentially negative impacts on both law enforcement resource utilization and community relations within such jurisdictions; and whether increasing law enforcement funding or tying the provision of certain federal grants to greater cooperation with federal immigration enforcement agencies----or a mix ofboth approaches-would yield the greater cooperation proponents seek. The 114th Congress introduced several legislative proposals related to sanctuary jurisdictions. Some would have prohibitedjurisdictions from receiving certain federal grants if they limited in specified ways their cooperation with ICE regarding immigration enforcement. The House passed H.R. 3009 on July 23, 2015. That bill would have penalized states and localities that restrict information gathering or communication with federal immigration enforcement agencies regarding an individual's citizenship or immigration status by withholding funding for three DOJ grant programs: the State Criminal Alien Assistance Program (SCAAP), the Community-Oriented Policing Services Program (COPS), and the Edward Byrne Memorial Justice Assistance Grant (JAG) program.
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Contents
Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 2 Criminal Alien Programs ................................................................................................................. 2
Criminal Alien Program ............................................................................................................ 3 Priority Enforcement Program (PEP) ........................................................................................ 3 Section 287(g) Program ............................................................................................................ 5 Resources Dedicated to Select Immigration Interior Enforcement Programs ................................. 5 Criminal Alien Numbers and Crimes .............................................................................................. 6 Sanctuary Jurisdictions .................................................................................................................... 8 Select Issues .................................................................................................................................... 9 Impact on Communities ............................................................................................................ 9 Resources ................................................................................................................................ 10
Funding for State and Local Cooperation .......................................................................... 11 Congressional Action in the 114th Congress ................................................................................... 11
Tables
Table 1. Appropriations for Three Criminal Alien Programs, FY2004-FY2017 ............................. 6 Table 2. Prison Population by Citizenship Status and Jurisdiction, CY2014 .................................. 7 Table 3. Federal Prison Population by Citizenship Status and Offense Type, FY2013 ................... 8
Contacts
Author Contact Information .......................................................................................................... 12
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Sanctuary Jurisdictions and Criminal Aliens: In Brief
Introduction
The Department ofHomeland Security's (DHS's) U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) has primary responsibility for locating removable aliens1 and ensuring that aliens directed to depart from the United States do so. In carrying out its mission, ICE relies, in part, on state and local law enforcement agencies throughout the country to assist it by identifying removable aliens.
The prominence of immigration enforcement issues during the 2016 presidential election as well as publicity surrounding crimes committed by some unauthorized aliens have reignited debates over immigration enforcement in the interior of the country. More specifically, concerns have intensified over the level ofcooperation shown by some state and local law enforcement agencies in notifying ICE when they have an alien in their custody. One homicide case, the July 2, 2015, slaying of a woman on a San Francisco pier by a reported unauthorized alien with a criminal and deportation history,2 is particularly noteworthy because the law enforcement agency in question reportedly had not honored an ICE request to detain the criminal alien who, upon his release, subsequently committed the crime.3
Some jurisdictions, through resolutions, executive orders, or local ordinances, have expressly defined or limited their roles and the activities of their employees regarding immigration enforcement.4 These have been referred to as "sanctuary" jurisdictions, and their policies range from limiting law enforcement agents (LEAs) from cooperating with ICE in enforcing immigration law to restricting some types ofinformation that can be shared about an alien with federal law enforcement. Given the range of such enforcement policies, there remains no generally agreed upon definition for "sanctuary" jurisdiction.
Critics ofsanctuary jurisdictions contend that they impede law enforcement's primary mission in ways that could lead to calamitous outcomes (such as the homicide described above) or could encourage illegal immigration. Supporters of sanctuary jurisdictions maintain that they are needed because ofresource and legal constraints, the need to avoid the disruption ofcritical municipal services by diverting local law enforcement personnel to handle immigration enforcement, and community policing concerns.
This report examines the interplay between the federal government (i.e., ICE) and state and local jurisdictions in enforcing immigration law, with a specific focus on noncitizens who have been convicted of a crime. It explores federal resources available to state and local law enforcement agencies that cooperate with ICE to enforce immigration law. The report begins by briefly discussing the evolution of cooperation between the federal government and local law enforcement in carrying out federal immigration policy. It then discusses current administrative efforts to involve state and local law enforcement in enforcing immigration law. A brief discussion of resources dedicated to these efforts follows. The report concludes with a discussion of select issues and an analysis ofpossible policy approaches for Congress.
1 An alien is anyone who is not a citizen or national of the United States-this term is synonymous with the terms noncitiz.en and foreign national. A noncitizen may be in the United States temporarily or permanently and may be either lawfully present or present without authorization. 2 See Steve Almasy, Pamela Brown, and Augie Martin, "Suspect in killing ofSan Francisco woman had been deported five times," CNN.com, July 4, 2015. 3 Sec CRS Legal Sidebar WSLG1330, Recent Shooting in San Francisco Raises Questions about "Sanctuary Cities" and Compliance with Immigration Detainers. 4 See CRS Report R43457, State and Local "Sanctuary" Policies Limiting Participation in Immigration Enforcement.
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Background
The enforcement ofimmigration laws in the interior ofthe United States has long been a controversial topic. Traditionally, the debate emphasized economic and labor market issues, with those concerned about whether unauthorized aliens were depressing wages and talcing jobs from native workers pitted against those who argued that foreign labor was critical for certain industries and benefitted the broader economy. After the attacks of September 11, 2001 (9/11), attention refocused on the adequacy ofinterior immigration enforcement, especially the perceived lack of federal resources.5 Although ICE has seen an increase in resources to carry out its immigration enforcement responsibilities, the number ofICE agents pales in comparison to the resources available to local law enforcement agencies (LEAs) throughout the country.6 While immigration enforcement is a federal responsibility, interior enforcement programs that involve cooperation between ICE and state and local law enforcement agencies can allow a relatively small number ofICE agents to leverage much larger numbers of state and local law enforcement agents.
Criminal Alien Programs'
ICE operates four major programs that target criminal aliens. The Criminal Alien Program (CAP) serves as an umbrella program for marshaling the agency's resources to identify and remove criminal and other removable aliens.8 CAP is guided by the Priority Enforcement Program (PEP),9 which represents a set ofenforcement priorities that describe which foreign nationals should be removed and in what priority order. PEP also comprises a data sharing infrastructure or "interoperability" between DHS and the Department of Justice (DOJ) that screens for immigration violations when individuals are booked into jails.10 ICE's §287(g) program11 allows
s Prior to the September 11, 2001, terrorist attacks, the former Immigration and Naturalization Service (INS) had fewer than 2,000 immigration agents to enforce immigration laws within the United States. Since the merger of the interior enforcement function of the former INS with the investigative arm of the U.S. Customs Service into ICE, the number of interior agents has increased to over 7,000. 6 There were 605,000 LEAs in 2013, see U.S. Department ofJustice Office ofJustice Programs, Local Police Department, 2013: Personnel, Policies, and Practices, May 2015. 7 For a detailed discussion of criminal aliens and related programs, see CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens. 8 The term criminal alien is not specifically defined in immigration law or regulation. At the broadest level, a "criminal alien" is any noncitizen who has ever been convicted ofa crime in the United States. 9 PEP is not a formal program per se. It consists ofa data sharing infrastructme and a set ofenforcement priority and policy guidelines. Throughout this report, the term ''program" is necessarily embedded within ''PEP" for linguistic ease. 10 PEP replaced the former Secure Communities program, which some jurisdictions-particularly those with sizable foreign-born populations-had opposed. Begun in 2008, Secure Communities had the same database interoperability as PEP but used a broader set of enforcement priorities. Immigrant advocacy groups criticized Secure Communities from its inception for removing relatively large numbers ofunauthorized aliens who had committed minor or nonviolent crimes and who often had family ties in the United States. Some law enforcement officials argued that the program hampered community policing within immigrant communities, because it helped to conflate immigration enforcement with general law enforcement. Supporters of Secure Communities saw it as an efficient and impartial way of identifying criminal aliens. Following its replacement with PEP in November 2014 (FY2015), criticism shifted toward concerns about insufficient enforcement, with some observers criticizing ICE's use ofprosecutorial discretion that emphasizes enforcement for only the most serious criminal aliens. They argue that such priorities come at the expense ofremoving other criminal aliens and unauthorized aliens more generally, and that all unauthorized aliens have violated U.S. immigration law and should be subject to removal. For more discussion on Secure Communities, see archived CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens. For more discussion on alien removals and returns, see CRS Report R43892, Alien Removals and Returns: Overview and Trends.

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DHS to delegate certain immigration enforcement functions to specially trained state and local law enforcement officers, under federal supervision. The National Fugitive Operations Program (NFOP) pursues known at-large criminal aliens and fugitive aliens outside of controlled settings (i.e., administrative offices or custodial settings).
Criminal Alien Program
The CriminalAlien Program (CAP) is an umbrella program that includes several systems for identifying, detaining, and initiating removal proceedings against incarcerated criminal aliens. According to ICE, "CAP provides ICE-wide direction and support in the biometric and biographic identification, arrest, and removal ofpriority aliens who are incarcerated within federal, state, and local prisons and jails, as well as at-large criminal aliens that have circumvented identification."12 CAP is intended to prevent the release ofcriminal aliens from jails and prisons by securing final orders ofremoval prior to the termination of aliens' criminal sentences and by taking custody of and removing aliens who complete their criminal sentences.
CAP jail enforcement officers screen people to identify and prioritize potentially removable aliens as they are being booked into jails and prisons and while they are serving their sentences. Such screening covers almost all persons booked into federal and state prisons and local jails.13 CAP officers search biometric and biographic databases to identify matches in DHS databases and interview arrestees and prisoners to identify potentially removable aliens without DHS records. 14
In addition to onsite deployment of ICE officers, CAP uses video teleconference equipment that connects jails and prisons to ICE's Detention Enforcement and Processing Offenders by Remote Technology (DEPORT) Center in Chicago, IL. CAP also works with state and local correctional departments that provide inmate roster data that ICE then compares to its immigration databases. CAP also manages the Law Enforcement Support Center (LESC), a 24/7 call-center that conducts database checks on the identity and immigration status of arrestees for ICE officers and law enforcement agencies.
Priority Enforcement Program (PEP)15
The Priority Enforcement Program (PEP) has two components. First, PEP includes enforcement priorities that guide immigration enforcement. Second, PEP uses interoperability, a biometric information sharing program between DOJ and DHS that screens for potentially removable aliens when individuals are arrested by state and local law enforcement agents.

(...continued) 11 The formal program name is Agreements entered into pursuant to Immigration and Nationality Act (INA) §287(g). 12 ICE, Criminal Alien Program, http://www.ice.gov/criminal-alien-program, accessed by CRS on July 1, 2016. 13 Criminal aliens who have no previous record may elude detection through interoperability because they may not appear in DHS databases. This shortcoming is overcome by having ICE agents visit or stationed in prisons and selected jails who can interview individuals in these custodial settings.
14 Aliens who overstay a nonimmigrant visa or who have previously been removed typically have records in one or more DHS databases and may be identified through a biographic or biometric search. A person who enters without inspection and has had no previous contact with DHS often can only be identified as an unauthorized alien based on an interview with an experienced immigration officer. 15 Portions of this section were excerpted from CRS Report R43 852, The President's Immigration Accountability Executive Action ofNovember 20, 2014: Overview and Issues.

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ICE takes enforcement action against individuals unlawfully present or removable due to a criminal conviction in accordance with its immigration enforcement priorities. Individuals prioritized for removal must either be threats to national security, border security, and public safety (Priority 1); misdemeanants and new immigration violators (Priority 2); or aliens issued final orders ofremoval on or after January 1, 2014 (Priority 3).16
Under CAP, when law enforcement agencies book (i.e., take custody ot) an arrestee and submit the person's fingerprints to the FBI for a criminal background check,17 the fingerprints also are automatically checked against DHS's Automated Biometric Identification System (IDENT) database.18 Potential matches are forwarded to the Law Enforcement Support Center (LESC, see "Criminal Alien Program (CAP)"). 19 ICE agents at the LESC confirm the identity ofmatched fingerprints and screen their records for immigration violations and criminal histories. Ifthe LESC determines that the arrestee may be a removable alien, it notifies one ofICE's Enforcement and Removal Operations (ERO) field offices for the arresting jurisdiction about the match.
After being notified that a removable alien has been arrested, the local ERO supervisor reviews the record and decides how to proceed based on the individual's criminal conviction record, OHS enforcement priorities, and the office's available resources. Ifthe office decides to initiate removal proceedings against an alien, it will typically request to be notified within 48 hours ofthe individual's scheduled release from law enforcement custody. Under some circumstances, ICE may request that state and local law enforcement agencies detain, for 48 hours, individuals flagged for removal.
Since August 2015, ICE also has been using a Rezuestfor Voluntary Transfer for certain cases falling outside ofthe PEP priority categorization. 0 Priority noncriminal subcategories that are not covered under PEP, but for which ICE may seek transfer from cooperative jurisdictions, are
• aliens apprehended while attempting to illegally enter the country;
16 U.S. Department ofHomeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriquez, Director, U.S. Citizenship and Immigration Services, and Alan D. Bersin, Acting Assistant Secretary for Policy, from Jeh Charles Johnson, Secretary ofHomeland Security, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, November 20, 2014. For more background on the evolution ofDHS interior enforcement priorities, see CRS Report R44627, Interior Immigration Enforcement: Criminal Alien Programs. 17 The Integrated Automated Fingerprint Identification System (IAFIS) conducts criminal and terrorist background checks in response to requests from federal, state, and local law enforcement agencies by checking fingerprints against the IAFIS database of fingerprints, criminal histories, photographs, and biographic information. The IAFIS database includes the records of more than 66 million subjects in its criminal master file, along with more than 25 million civil fingerprints. See Federal Bureau ofInvestigation, "Integrated Automated Fingerprint Identification System," http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis. 18 The Automated Biometric Identification System (IDENT) database is DHS's primary department-wide biometric database, and includes photographs, fingerprints, biographic name and personal identifier data, citizenship and nationality information, and derogatory information, if applicable. See U.S. Deparbnent of Homeland Security, Privacy Impact Assessment Updatefor the Biometric Interoperability between the U.S. Department ofHomeland Security and the U.S. Department ofJustice, DHS/NPPDIUSVISITIPIA-007(b), October 13, 2011. According to ICE, IDENT included over 186 million unique records as ofJune 10, 2015. 19 The Law Enforcement Support Center (LESC) is ICE's national point ofcontact for local, state, and federal law enforcement agencies, corrections systems, and court systems seeking information about aliens suspected, arrested, or convicted ofcriminal activity. The LESC staffs a 24-hour phone line to respond to queries, and provides customs, immigration, and identity information based on ICE records. See ICE, "Law Enforcement Support Center," http://www.ice.gov/lesc/. 20 See U.S. Immigration and Customs Enforcement, Priority Enforcement Program, accessed by CRS on March 25, 2016, at https://www.ice.gov/pep.

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• unlawfully present aliens who have not resided continuously in the United States since January 1, 2014;
• aliens who have significantly abused the visa or visa waiver programs; and • aliens issued final removal orders on or after January 1, 2014.
Section 287(g) Program
Section 287(g) of the Immigration and Nationality Act (INA) permits the Secretary of Homeland Security21 to delegate certain immigration enforcement functions to state and local law enforcement agencies. lbis authority was enacted into law in 199622 but was given new urgency following the terrorist attacks in September 2001. In 2002, the Attorney General proposed an initiative to enter into Section 287(g) agreements with a number ofjurisdictions in an effort to carry out the country's anti-terrorism mission. Under these agreements, commonly referred to as Section 287(g) programs, state and local law enforcement officers could be trained to assist ICE with enforcing certain aspects ofimmigration law.
Prior to 2013, the Section 287(g) program encompassed both taskforce andjail enforcement agreements. However, ICE currently only has jail enforcement agreements with state and local
jurisdictions. Under these agreements, specially trained officers within state and local corrections facilities are authorized to identify criminal aliens by interviewing them and screening their biographic information against the same DHS databases used by CAP agents and officers. The LEAs also use ICE's database and the Enforcement Case Tracking System (known as ENFORCE) to enter information about aliens in their custody. LEAs are supervised by CAP officers.
As ofJuly 1, 2016, ICE had Section 287(g) agreements with 32 law enforcement agencies in 16 states.23 At least 1,675 state and local law enforcement officers had completed ICE's four-week Section 287(g) training and were certified to conduct certain immigration enforcement duties.24
Resources Dedicated to Select Immigration Interior
Enforcement Programs
Table 1 presents funding for CAP, Interoperability (formerly Secure Communities and currently Priority Enforcement Program), and the 287(g) program since they were first funded. Funding dedicated specifically to identifying and removing criminal aliens (i.e., CAP and Secure Communities/Interoperability) rose from just $6 million in FY2004 to $392.5 million in FY2010, a 58-fold increase, before dropping to $317.2 million in FY2016. The Obama Administration's FY2017 budget request for these programs totaled $371.5 million. DHS folded Secure Communities funding into CAP in FY2015 and the program was replaced with the Priority Enforcement Program. The Section 287(g) program received an appropriation of $68 million at its peak (FY2010-FY2013); its funding has declined to $24 million in the four most recent years.
21 Prior to the creation of DHS, this authority was given to the Attorney General. 22 See §439 ofthe Antiterrorism and Effective Death Penalty Act (AEDPA; P.L. 104-132) and §133 and §372 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104-208). 23 ICE, "Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act," http://www.ice.gov/factsheets/287g, accessed on July 1, 2016. 24 Ibid.

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Table I.Appropriations for Three Criminal Alien Programs, FY2004-FY2017
(millions of dollars)

Fiscal Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2011•

CAP.

Interoperability'>

$6.0

NAd

$33.7

NA

$93.0

NA

$137.5

NA

$180.0

$200.0

$189.1

$150.0

$192.5

$200.0

$192.5

$200.0

$196.7

$189.1

$216.5

$138.1

$294.2

$25.3

$327.2

$0.()f

$317.2

$0.0

$347.5

$0.0

§287(g)c NA• NA $5.0
$15.0 $42.1 $54.0 $68.0 $68.0 $68.0 $68.0 $24.3 $24.0 $24.0 $24.0

Total: $6.0 $33.7
$98.0 $152.5 $422.1 $393.1 $460.S $460.5 $453.8 $422.6 $343.8 $J51.2 $341.2 $371.S

Sources: U.S. Immigration and Customs Enforcement "Fact Sheet: Updated Facts on ICE's 287(g) Program," S.Rept. I08-280, S.Rept. I09-83, S.Rept. I09-273, H.Rept. I09-699, S.Rept. 110-396, S.Rept. I 11-31, S.Rept. 111222, S.Rept. 112-169, P.L 113-6, and Senate Explanatory Statement accompanying P.L. 113-6; Congressional Record, House of Representatives, January 15, 2014; House Explanatory Statement accompanying P.L I 14-4; FY2015 OHS Budget in Brief; FY2015 DHS Budget Justification; FY20 16 OHS Budget Justification; and FY20 17 DHS Budget Justification.
Notes: FY2017* represents only the Administration's request. FY2013 data reflect across-the-board rescissions included in P.L. 113-6 to comply with discretionary budget caps, but do not include the effects of sequestration as required by P.L 112-25 because post-sequester data were not available for all programs. CAP refers to the Criminal Alien Program; §287(g) refers to agreements entered pursuant to INA §287(g).
a. The Criminal Alien Program was known as the Institutional Review Program prior to FY2007.
b. Interoperability/Secure Communities was also known as the Comprehensive Identification and Removal of Criminal Aliens (Cl RCA) program until it was replaced by the Priority Enforcement Program in FY20 I5.
c. Includes §287(g) jail enforcement and §287(g) task force programs. §287(g) task force programs were discontinued during FY2012.
d. The Secure Communities/CIRCA program received its first appropriation in FY2008.
e. The §287(g) program received its first appropriation in FY2006.
f. The Secure Communities funding was folded into the Criminal Alien Program in FY2015.

Criminal Alien Numbers and Crimes
As mentioned, ICE has made the removal of certain criminal aliens its top priority. This section examines incarceration data at federal, state, and local levels, which represents one measure of criminality. Data are available for the total number ofprisoners at these levels and are broken out

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by citizenship status.25 Federal data are compiled by the U.S. Marshals Service (USMS) Prisoner
Tracking System and published by DOJ's Bureau ofJustice Statistics (BJS) through its online Federal Justice Statistics Resource Center (FJSRC).26 State and local facilities report their data to DOJ.21

Table 2. Prison Population by Citizenship Status and Jurisdiction. CYlO 14

Total Prlsonen

U.S. Citizen Prlsonen

Noncltlzen Prisoners

Jurisdiction Number Percentage Number Percentage Number Percentage

Federal State
Total

209,561 1,268,7'4-0 1,478,301

100.0% 100.0% 100.0%

186,029 1,224,435 1,410.464

88.8% 96.5% 95.-4%

23,532 4-4,305 67,837

11.2% 3.5% 4.6%

Source: Total and Noncltlzen Federal and State Prisoners: DOJ, Bureau of Justice Statistics, Corrections Statistical Analysis Tool (CSAT)-Prisoners, accessed by CRS at http://www.bjs.gov/index.cfm?ty=nps on July I, 2016; U.S. Citizen Federal and State Prisoners: computed by CRS as the difference between total prisoners and noncitizen prisoners.
Notes: Figures presented are the most recent publically available statistics. They represent the calendar yearend prison population that includes prisoners in the federal Bureau of Prisons (BOP) prisons and private prisons that hold federal prisoners, and state and local correctional facilities. Figures also include pre-sentenced/pre-trial prisoners. California had not reported its 20 14 noncitizen prisoner population to BJS. However, between 2008 and 2012 an average of 16,871 noncitizen prisoners were incarcerated in California state prisons. If this average figure were added to the state total of 47,861 shown in the table, the noncitizen percentage of state prisoners for 2014 would increase from 3.5% to 4.8% and the noncitizen percentage of all state and federal prisoners would increase from 4.6% to 5.7%. BJS warns that because federal and state departments of corrections and county jails have varying definitions of noncitizens, one should exercise caution when interpreting these results.

Federal statistics on incarcerations are broken out by citizenship and further delineated by federal
versus state and local jurisdiction. Table 2 indicates that at the end of CY2014, the most recent year for which these data are available, 23,532 noncitizens accounted for 11.2% ofthe 209,561 individuals incarcerated in federal prisons. In state prisons, 44,305 noncitizens accounted for 3.5% ofthe 1,268,740 individuals incarcerated at the end ofCY2014. In total, noncitizens represented 4.6% ofthe year-end incarcerated population in CY2014. As a basis for comparison, noncitizens represented 7.0% of the total U.S. population in 2014,28 which suggests that the noncitizen proportion of federal and state prisoners, as reported in the figures above, was less than that ofthe U.S. population as a whole in 2014.

Table 3, which presents the federal prison population by offense category for the end of FY2013,29 shows that drug offenders accounted for 50% of all federal offenders in federal prison,
with incarcerated noncitizens having a comparable if slightly lower proportion in this category

25 Note that citizenship status refers to citizens and noncitizens. Data are not available on immigration status. Hence, noncitizens include both persons lawfully present in the United States (either permanently or temporarily) and unauthorized aliens. 26 The prisoner tracking system (PTS) contains data on suspects arrested for violations offederal law, by federal enforcement agencies and data about warrants initiated or cleared. The data include information on characteristics of federal arrestees. Seep. 107 ofhttp://bjs.ojp.usdoj.gov/content/pub/pdf/cfjs0407.pdf. 27 Other data on arrests and convictions are available at the state and local levels, but those data do not delineate crime type and citizenship status. 28 Figure computed by CRS using data from the American Community Survey, 2014 one-year estimates, accessed on the Census Bureau's American Factfinder website, July 1, 2016.
29 FY2013 is the most recent year for which these data were publically available from BJS.

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Case 3:17-cv-01535-WHO Document 12-13 Filed 04/04/17 Page 13 of 17
Sanctuary Jurisdictions and Criminal Aliens: In Brief

(46%) compared with incarcerated citizens (52%). Although immigration offenders represented almost 12% ofall incarcerated federal offenders at the end ofFY2013, they represented 43% of all federal noncitizen offenders. Together, drug and immigration offenses represented almost 90% of all noncitizen federal offenses at the end ofFY2013.

Table 3. Federal Prison Population by Citizenship Status and Offense Type, FYlO 13

Number of Offenses

Percentage of Citizenship Status Total

Offense Type

Total

Citizen

Noncitizen

Unknown

Total

Citizen

Noncitizen

Unknown

Violent

11.459 10,830

619

10

5.8%

7.3%

1.2%

15.4%

Property

12,219 10.n1

1,494

4

6.1%

7.2%

2.9%

6.2%

Drug

100,287 77,201

23,065

21

50.3% 52.0%

45.5%

32.3%

Public-Order

20,332 18,545

l,775

12

10.2% 12.5%

3.5%

18.5%

Weapon

30,575 28,891

1,669

IS

15.3% 19.5%

3.3%

23.1%

Immigration

22,964

992

21,969

3

11.5%

0.7%

43.3%

4.6%

Unknown

1,408

1,269

139

0

0.7%

0.9%

0.3%

0.0%

Total

199,244 148,449

50,730

65 100.0% 100.0% 100.0% 100.0%

Source: U.S. Department of Justice, Bureau of Justice Statistics (BJS), Federal Criminal Case Processing Statistics, http://www.bjs.gov/fjsrclindex.cfm.
Notes: FY2013 represents the most recent data available online from BJS's Federal Criminal Case Processing Statistics. The prison population is measured as of September 30, 2012. According to BJS, the universe of cases reported excludes both pre-sentenced/pre-trial prisoners and suspects who were charged in the District of Columbia's Superior Court. BJS wams that because federal and state departments of corrections and county jails have varying definitions of noncitizens, one should exercise caution when interpreting these results. For a more detailed offense list, see BJS. Federal Criminal Case Processing Statistics, http:/lwww.bjs.gov/fjsrclindex.dm.

Sanctuary Jurisdictions
Starting in 2011, a number ofjurisdictions---0ften referred to as "sanctuary cities," and referred to herein as "sanctuary jurisdictions"-began to expressly define or limit their roles regarding immigration enforcement.30 The jurisdictions have policies that range from limiting cooperation of local law enforcement agents with ICE, typically regarding compliance with detainers; restricting what types ofinformation local law enforcement can inquire about or share with ICE regarding a foreign national;31 or restricting the use of local funds for immigration enforcement, among other measures. In implementing such policies, some jurisdictions were responding to increased numbers ofremovals from the U.S. interior of unauthorized aliens who were identified

30 Although no official list exists of sanctuary jurisdictions-and the term itself has no formal definition----one unofficial count included four states (California. Connecticut, Rhode Island. and Vermont) plus the District of Columbia; dozens ofcities, including Chicago, New York, Los Angeles, and New Orleans; and hundreds of counties. Jasmine C. Lee, Rudy Omri, and Julia Preston. ''What Are Sanctuary Cities?," New York Times, September 3, 2016. The exact number ofsanctuary jurisdictions remains imprecise because jurisdictions regularly change their policies regarding detainers. Jessica Vaughan, "Update on Sanctuary Jurisdiction," Center for Immigration Studies. 31 Under 8 USC §1373, federal, state, and local government entities cannot restrict the flow of information to or from DHS regarding an individual's legal status or citizenship status. However, some jurisdictions that have not directly restricted the sharing ofinfonnation about individual's citizenship or legal status have sought to restrict the sharing of other information, such as the date when an individual will be released from state or local custody.

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Sanctuary Jurisdictions and Criminal Aliens: In Brief
through Secure Communities. Many such unauthorized aliens, apart from their illegal status, reportedly had relatively minor or no criminal records.32 Other jurisdictions were reportedly responding to federal court decisions finding that holding an alien solely on the basis of an ICE detainer could violate the Fourth Amendment, potentially subjecting law enforcement to liability for doing so.33
The number of sanctuary jurisdictions, many of which imposed restrictions on compliance with ICE detainers, contributed to the Obama Administration's decision to replace Secure Communities with the Priority Enforcement Program in November 2014. With the introduction of PEP, jurisdictions that previously resisted ICE enforcement measures and detainer requests have increasingly cooperated with the agency, allowing it to effectively custom tailor immigration enforcement mechanisms that comply with local ordinances and preferences.34 For example, some jurisdictions had concerns about detainers issued for aliens whom ICE did not have probable cause to believe were subject to removal. In response, ICE amended its detainer forms to note the basis for determining that an individual alien is subject to removal.35 Since establishing PEP, ICE reports that over 275 jurisdictions that previously had not honored ICE detainers have agreed to honor requests for notification and/or detention.36
Implementing PEP, however, has altered immigration enforcement. According to ICE, state and local law enforcement agencies declined 16,495 immigration detainers between January 2014 and June 2015, ''resulting in convicted criminals being released back into U.S. communities with the potential to re-offend, notwithstanding ICE's request for those individuals."37 In addition to potential public safety concerns, ICE contends that under PEP, more agents are required to locate and arrest convicted at-large criminals compared to the fewer number ofagents needed to obtain custody of criminal aliens in controlled settings. ICE agents who previously might have been working in such custodial settings under Secure Communities protocols now work in multiperson teams to locate criminal aliens once they have been released, typically under more hazardous conditions.38
Select Issues
The following sections discuss issues in debates over sanctuary jurisdictions and immigration enforcement as well as possible policy options that Congress may consider should it legislate or conduct oversight in this area.
Impact on Communities
As mentioned, since the 9/11 terrorist attacks, greater emphasis has been placed on enforcing the nation's immigration laws. The role of state and local law enforcement in enforcing these laws
32 See for example, Elina Treyger, Aaron Chalfin, and Charles Loeffler. "Immigration enforcement, policing, and crime: Evidence from the Secure Communities Program," Criminology & Public Policy, vol. 13 (2014), pp. 285-322. 33 U.S. Immigration and Customs Enforcement, ICE Enforcement and Removal Operations Report, Fiscal Year 2015, December 22, 2015, p. 5. See also CRS Report R42690, Immigration Detainers: Legal Issues. 34 ICE briefing to CRS on the Criminal Alien Program, April 7, 2016. 35 Department of Homeland Security, Form I-247D, Immigration Detainer, Request for Voluntary Action, https://www.ice.gov/sites/default/files/documents/Document/2016/I-24ID.PDF. 36 U.S. Department ofHomeland Security, FY2017 Congressional BudgetJustification, vol. 2, p. 68. 37 See DHS, ICE Enforcement and Removal Operations Report, Fiscal Year 2015, December 22, 2015, p. 5. 38 Ibid, and ICE briefings to CRS on the Criminal Alien Program, June 25, 2015 and April 7, 2016.

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Case 3:17-cv-01535-WHO Document 12-13 Filed 04/04/17 Page 15 of 17
Sanctuary Jurisdictions and Criminal Aliens: In Brief
continues to be debated, including the issue ofwhether LEAs should be required to notify ICE when an alien is in their custody.
Critics of this idea argue that imposing such a requirement undermines the relationship between local law enforcement agencies and the immigrant communities they serve.39 For example, victims and potential witnesses may be reluctant to come forward to report crimes in fear of actions that might be taken against them by immigration officials. Critics assert that the trust between noncitizens and local authorities is tenuous in many jurisdictions and that such a policy could threaten the fragile cooperation that exists between immigrant communities and local law enforcement.
Proponents contend that state and local law enforcement agents may have strong connections to local communities, further enhancing their ability to contribute to ICE's enforcement efforts. Such partnership, they contend, could help ICE facilitate the removal of potential criminals who are illegally present in the country, thus providing an elevated level of security for the nation.
Resources
The issue ofresources is a perennial concern for federal, state, and local LEAs. At the federal level, ICE has approximately 7,300 personnel in its Enforcement and Removal Operations program to identify; apprehend; detain, if appropriate; and remove aliens that fall under their priority scheme.40
Under PEP, ICE must now issue requests for notification to state and local jails and prisons to be notified of specific release dates so that ICE can take custody of criminal aliens at the time of release. However, the number ofjurisdictions that are restricting or preventing their LEAs from notifying ICE may hamper ICE's ability to carry out its duties. For example, if an alien is released from state or local custody without ICE being notified, ICE must then deploy enforcement agents to re-apprehend the individual. ICE indicates that this not only increases the need for personnel for each released criminal alien but also increases the level ofpersonal risk for ICE agents who must apprehend the criminal alien in the community rather than in a controlled setting such as a jail or prison.41
State and local law enforcement agencies throughout the country collectively employ over 605,000 LEAs.42 Proponents of having state and local LEAs assist ICE in carrying out immigration enforcement view the vast number of LEAs as a "force multiplier'' for ICE. Critics, however, contend that state and local law enforcement resources should not be used to fund a federal responsibility.43 They argue that such action could result in the reduction oflocal law enforcement resources available for other purposes. At a time when local jurisdictions are
39 See, for example, the testimony Richard David Wiles, El Paso, TX, County Sheriff's office. House Homeland Security Committee Subcommittee on Border and Maritime Security, Border Security andEnforcement: Department of Homeland Security's Cooperation with State and Local Law Enforcement Stakeholders, May 3, 2011 (Hereinafter referred to as ''Wiles testimony"). 40 Testimony of Sarah Saldana, Director ofU.S. Immigration and Customs Enforcement, House Committee on Oversight and Government Reform, A Review ofthe Department ofHomeland Security Policie.s and Proceduresfor the Apprehension, Detention, andRelease ofNon-Citizens Unlawfally Present in the United States, March 19, 2015. 41 Ibid. 42 This figure is as ofJanuary 1, 2013. U.S. Department ofJustice Office of Justice Programs, Local Police Department, 2013: Personnel, Policies, and Practices, May 2015. 43 See Wiles testimony.

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Sanctuary Jurisdictions and Criminal Aliens: In Brief
witnessing a depletion of traditional funding to fight crime, they argue such action could be detrimental to many communities.
Funding for State and Local Cooperation
Congress could appropriate additional funding to state and local law enforcement agencies for their cooperation with enforcing immigration law. A common argument made by local law enforcement officials against enforcing immigration law is the lack ofresources.44 Many states face budget shortfalls and police departments have seen decreases in federal funding for some law enforcement programs. On the other hand, Congress could limit such funding from going to states and localities that refuse to cooperate with ICE or limit such cooperation.45
There are several potential grant programs Congress could target to both facilitate and serve as a trigger for state and local law enforcement cooperation. Both DOJ and DHS have several grant programs that provide funding to state and local law enforcement for related activities.
Congressional Action in the 114th Congress
The 114th Congress introduced several legislative proposals related to sanctuary jurisdictions. Some would have prohibitedjurisdictions from receiving certain federal grants ifthey limited in specified ways their cooperation with ICE regarding immigration enforcement. The House passed H.R. 3009 on July 23, 2015. That bill would have penalized states and localities that restrict information gathering or communication with federal immigration enforcement agencies regarding an individual's citizenship or immigration status46 by withholding funding for three Department of Justice grant programs: the State Criminal Alien Assistance Program (SCAAP), the CommunityOriented Policing Services Program (COPS), and the Edward Byrne Memorial Justice Assistance Grant (JAG) program.47
Similarly, amendments adopted during the House Committee on Appropriations markup of the FY2016 Department ofHomeland Security appropriations bill and the House consideration of Commerce, Justice, Science and Related Agencies Appropriations Act, 2016 (H.R. 2578)48 would have prohibited federal funds from going to jurisdictions that restrict their law enforcement agents from notifying ICE on the immigration status of aliens. The former would have prohibited Federal Emergency Management Agency funds, while the latter would have done so for State and Local Law Enforcement Assistance grant funds.
44 See for example the testimony ofTodd Entrekin, Etowah County, AL, Sheniff's office. House Homeland Security Committee Subcommittee on Border and Maritime Security, Border Security and Enforcement: Department of Homeland Security's Cooperation with State and Local Law Enforcement Stakeholders, May 3, 2011. 4s See for example, the Mobilizing Against Sanctuary Cities Act (H.R. 3002) and H.Amdt. 352 to H.R. 2578, S. 80 and
s. 1764.
46 Section 642(a) ofthe Illegal Immigration Reform and Immigrant Responsibility Act (P.L. 104-208), as codified in 8 U.S.C. §1373, prevents impeding the flow ofinformation regarding any individual's legal status or citizenship status by a federal, state, or local entity to the federal government. 47 Court decisions have held that conditions attached to the receipt offederal funds that regulate state and local governments must be unambiguous; relate to the federal interest in particular programs; not be barred by another constitutional provision; and not be so coercive as to compel states into participation. For more information, see CRS Report R44104, Federal Power over Local Law Enforcement Reform: Legal Issues. Legislation that would withhold funding to sanctuary jurisdictions has often centered on the SCAAP, COPS, and JAG grant programs, which are related to law enforcement. See CRS Report RS22416, Edward Byrne Memorial Justice ~sistance Grant (.IAG) Program: In Brief, and CRS Report RL33308, Community Oriented Policing Services (COPS): In Brief 48 See H.Amdt. 352 to H.R. 2578.

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Sanctuary Jurisdictions and Criminal Aliens: In Brief
S.Rept. 114-66 to accompany H.R. 2578 contained no language supporting such restrictions. On October 20, 2015, the Senate failed to pass a cloture motion to consider S. 2146, which would have made sanctuary jurisdictions ineligible for certain federal grants. This bill also sought to ensure that states and localities had the "authority to carry out detainers" and to limit their liability for actions taken pursuant to immigration detainers. The Senate also considered two measures, S. 3100 and S. 2193, that would have restricted federal funding to cities that decline to honor detainers; and increase penalties (i.e., prison sentence) for migrants who illegally renter the country. S. 3100 would have withheld a range of federal grants for public works, economic development, planning, administrative expenses, training, research, and technical assistance from such sanctuary jurisdictions. S. 2193 would have increased maximum prison terms for unauthorized aliens by setting a five-year maximum sentence for unauthorized aliens with felony convictions caught two or more times, and a 10-year maximum sentence on unauthorized aliens caught reentering three times. The Senate failed to pass a cloture motion to consider either bill.49
Author Contact Information
William A. Kandel Analyst in Immigration Policy wkandel@crs.loc.gov, 7-4703
Acknowledgments
Lisa Seghetti, Section Research Manager, was one of the original authors ofthis report.

49 Other proposals related to sanctuary jurisdictions that were introduced in the 114th Congress included H.R. 191, H.R. 1148, H.R. 3002, H.R. 5485 (as amended), S. 129, S. 1640, S. 80, and S. 1764.

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Case 3:17-cv-01535-WHO Document 12-14 Filed 04/04/17 Page 1 of 2

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO
[PROPOSED] ORDER GRANTING CITY OF RICHMOND’S MOTION FOR PRELIMINARY INJUNCTION
Date: May 10, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

[PROPOSED] ORDER GRANTING CITY OF RICHMOND’S MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 12-14 Filed 04/04/17 Page 2 of 2

1

On April 4, 2017, City of Richmond (“Richmond”) filed a Motion for Preliminary

2 Injunction (“Motion”). The Court, having considered the Motion and documents filed therewith,

3 all of the papers on file in this action, and the evidence and arguments of counsel presented at the

4 hearing, hereby GRANTS Richmond’s Motion. The Court finds that each of the necessary

5 elements for issuing a preliminary injunction are met: Richmond is likely to prevail on the merits

6 of its claims; absent a preliminary injunction, Richmond would likely suffer irreparable injury;

7 the balance of the equities favors Richmond; and the requested relief is in the public interest.

8

PRELIMINARY INJUNCTION

9

Now, therefore, it is hereby ORDERED that:

10

Defendants Donald J. Trump, President of the United States of America, John F. Kelly, in

11 his official capacity as Secretary of the United States Department of Homeland Security, Jefferson

12 B. Sessions, in his official capacity as Attorney General of the United States, the United States of

13 America, and their officers, agents, employees, and attorneys, and any other persons who are in

14 active concert or participation with them, ARE HEREBY RESTRAINED AND ENJOINED from

15 committing, or performing, directly and indirectly, any and all of the following acts:

16

1. Enforcing Section 9(a) of Executive Order 13768, entitled “Enhancing Public

17 Safety in the Interior of the United States,” against Richmond [or any jurisdiction in the United

18 States]; and

19

2. Taking any action pursuant to the Executive Order that would withhold or claw-

20 back from Richmond [or any jurisdiction in the United States] federal funds that were appropriated

21 or allocated by Congress; and

22

3. Taking any action pursuant to the Executive Order that would declare or render

23 Richmond [or any jurisdiction in the United States] ineligible for federal funds.

24

IT IS SO ORDERED

25 Dated: 26 27

______________________________________ HONORABLE WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

[PROPOSED] ORDER GRANTING CITY OF RICHMOND’S MOTION FOR PRELIMINARY INJUNCTION;
Case No. 3:17-cv-01535-WHO
1

Case 3:17-cv-01535-WHO Document 12-15 Filed 04/04/17 Page 1 of 2

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmleal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cmplegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO
PROOF OF SERVICE VIA E-MAIL BY AGREEMENT OF PARTIES
Date: May 10, 2017 Time: 2:00 p.m. Judge: Honorable William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

PROOF OF SERVICE VIA E-MAIL BY AGREEMENT OF PARTIES; Case No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 12-15 Filed 04/04/17 Page 2 of 2

1

PROOF OF SERVICE

2

I am employed in the County of San Mateo; I am over the age of 18 years and not a party

3 to the within cause. My business address is the Law Offices of Cotchett, Pitre & McCarthy, LLP,

4 San Francisco Airport Office Center, 840 Malcolm Road, Burlingame, California, 94010. On this

5 day, I served the following document(s) in the manner described below:

6

1. CITY OF RICHMOND’S NOTICE OF MOTION AND MOTION FOR

7

PRELIMINARY INJUNCTION

2. DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR

8

PRELIMINARY INJUNCTION

9 3. DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION

10

4. DECLARATION OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR

11

PRELIMINARY INJUNCTION

5. DECLARATION OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR

12

PRELIMINARY INJUNCTION

13 6. DECLARATION OF TOM BUTT IN SUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION

14

7. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMOND’S

15

MOTION FOR PRELIMINARY INJUNCTION

8. [PROPOSED] ORDER GRANTING CITY OF RICHMOND’S MOTION FOR

16

PRELIMINARY INJUNCTION

17 ✘ VIA E-MAIL: My e mail address is pluc@cpmlegal.com. I am readily familiar with this 18 firm’s practice for causing documents to be served by e-mail. Following that practice, I caused
the aforementioned document(s) to be emailed to the addressee(s) specified below. 19

20

W. Scott Simpson

Department of Justice, Room 7210

21

Post Office Box 883

22

Washington, D.C. 20044

Scott.simpson@usdoj.gov

23

24

I declare under penalty of perjury, under the laws of the State of California, that the

foregoing is true and correct. Executed at Burlingame, California, on April 4, 2017. 25

26

/s/ Peter Luc

27

PETER LUC

28

Law Offices

COTCHETT, PITRE &
PROOF OF SERVICE VIA E-MAIL BY AGREEMENT OF PARTIES; Case No. 3:17-cv-01535-WHO

1

MCCARTHY, LLP

 
 Case 3:17-cv-01535-WHO Document 15 Filed 04/06/17 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 CITY OF RICHMOND,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 17-cv-01535-WHO
ORDER DENYING MOTION TO SHORTEN TIME Re: Dkt. No. 13

12

The City of Richmond (“Richmond”) filed its complaint in this action on March 21, 2017.

13 On March 24, 2017 the court issued an Order, relating this case to two prior-filed actions, County

14 of Santa Clara v. Donald J. Trump, Case 3:17-cv-00574-WHO, and City and County of San

15 Francisco v. Donald J. Trump, Case 3:17-cv-00485-WHO. The court is scheduled to hear oral

16 argument on the plaintiffs’ motions for preliminary injunction in the two related actions on April

17 14, 2017.

18

On April 4, 2017, the City of Richmond moved for preliminary injunction. Dkt. No. 12. A

19 hearing on that motion is set for May 10, 2017. Richmond now seeks to shorten the briefing and

20 hearing schedule on its motion so that it can be heard at the same time as the motions in County of

21 Santa Clara and City and County of San Francisco, on April 14, 2017. Dkt. No. 13. Defendants

22 have objected to the request which would give them just five days, and only three business days,

23 to file their response. Dkt. No. 14.

24

Richmond’s request to shorten time is DENIED. Any benefit to Richmond in shortening

25 time is greatly outweighed by the prejudice to defendants who, under Civil Local Rule 7-3(a), are

26

27

28

Case 3:17-cv-01535-WHO Document 15 Filed 04/06/17 Page 2 of 2

United States District Court Northern District of California

1 entitled to at least fourteen days to prepare a response.

2

IT IS SO ORDERED.

3 Dated: April 6, 2017

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

William H. Orrick United States District Judge

 
 Case 3:17-cv-01535-WHO Document 16 Filed 04/18/17 Page 1 of 32

1 CHAD A. READLER

Acting Assistant Attorney General 2 BRIAN STRETCH

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487) 5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B.

12 SESSIONS, III, Attorney General of the

United States; and UNITED STATES 13 OF AMERICA

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 CITY OF RICHMOND,

19 Plaintiff,

20

v.

21 DONALD J. TRUMP, et al.,

No. 3:17-cv-01535-WHO
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

22

Defendants.

Date:

May 10, 2017

23

Time: 2:00 p.m.

24

25

26

27

28

Opposition Prelim. Inj. No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 16 Filed 04/18/17 Page 2 of 32

1

TABLE OF CONTENTS

2 3 INTRODUCTION ........................................................................................................................... 1

4 ISSUES PRESENTED .................................................................................................................... 4

5

6 BACKGROUND ............................................................................................................................. 4

7

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 4

8

II. Executive Order 13,768........................................................................................... 6

9

III. Richmond’s Claims for Emergency Relief.............................................................. 9

10 ARGUMENT ................................................................................................................................ 10

11

I. Plaintiff Cannot Show Irreparable Harm............................................................... 11

12

A. The Supreme Court Requires a Likelihood of Immediate Concrete Irreparable Harm Before an Injunction May Issue .................... 11

13

B. The City Cannot Demonstrate a Likelihood of Immediate,

14

Concrete Irreparable Harm Given the Absence of Any Action under Section 9 or 8 U.S.C. § 1373 ............................................... 12

15

16

II. The City Cannot Establish a Likelihood of Success on the Merits Because, Among Other Things, Its Claims are Non-Justiciable ........................... 18

17

18

III. The Public Interest and the Balance of Equities Militate Against the Injunction Sought ............................................................................... 22

19

20

IV. No Injunction Should Issue Against the President ................................................ 23

21

V. Any Preliminary Injunction Herein Should Be

22

Limited to the Plaintiff .......................................................................................... 23

23 24 CONCLUSION ............................................................................................................................. 24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 3 CONSTITUTION

4 U.S. Const. art. II, § 3....................................................................................................................... 3

5 U.S. Const. art. III, § 2, cl. 1........................................................................................................... 17

6 CASES
7 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .....................................................................3, 19-21
8 Ali v. United States, 932 F. Supp. 1206 (N.D. Cal. 1996).............................................................. 16
9 Am. Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110 (C.D. Cal. 2008)................... 17
10 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009)................................. 10
11 Arc of Cal. v. Douglas, 757 F.3d 975 (9th Cir. 2014) .................................................................... 12
12 Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057 (N.D. Cal. 2015) ........................... 2, 12, 15
13 Arizona Dream Act Coal. v. Brewer, ___ F.3d ___, No. 15-15307,
14 2017 WL 461503 (9th Cir. Feb. 2, 2017)............................................................................... 4, 13

15 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ............................................... 4, 14

16 Bigelow v. Virginia, 421 U.S. 809 (1975) ................................................................................ 19, 20

17 Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016)................................................... 12

18 Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK, 2013 WL 4510629 (N.D. Cal. Aug. 22, 2013)........................................................................... 10
19 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .................................. 2, 12
20 City of N.Y. v. United States, 179 F.3d 29 (2d Cir. 1999) .............................................................. 22
21 Coal. for a Healthy Cal. v. FCC, 87 F.3d 383 (9th Cir. 1996)....................................................... 23
22 Connecticut v. Massachusetts, 282 U.S. 660 (1931) ...................................................................... 15
23 Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) ............................................................................ 23
24 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985) ........................................... 19, 21
25 Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................. 17
26 Envtl. Def. Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981) .............................................................. 24
27 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .................................................................... 19
28

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1 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998)...................................... 18

2 de Jesús Ortega Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ............................................ 17

3 Kitazato v. Black Diamond Hosp. Invs., LLC, 655 F. Supp. 2d 1139 (D. Haw. 2009) .................. 15

4 Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) ............................................................................ 10

5 Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197 (9th Cir. 1980) ...................... 12, 16

6 Mazurek v. Armstrong, 520 U.S. 968 (1997) ................................................................................. 10

7 MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118 (2007) .......................................................... 21

8 de Jesús Ortega Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ............................................ 17

9 Miller ex rel. NLRB v. California Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993) .......................... 11

10 Mississippi v. Johnson, 71 U.S. 475 (1866) ................................................................................... 23

11 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ....................................................... 24

12 N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104 (9th Cir. 2010)......................................................... 22

13 N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363 (S.D.N.Y. 2008).............. 17

14 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566 (2012) .............................. 22

15 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) ........................... 18

16 Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344 (D. Mont. 2014)....................... 12, 16

17 Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005) ..................................................................... 23

18 Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................. 22

19 Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d 414, 416 (9th Cir. 2002).............................................................................................. 18
20 Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co.,
21 685 F. Supp. 2d 1123 (D. Haw. 2010) ................................................................................... 2, 12

22 Pollara v. Radiant Logistics Inc., No. CV 12-0344 GAF (SPX), 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012)......................................................................... 18
23 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ............................................................... 23
24 Prof’l Towing & Recovery Operators of Ill. v. Box, No. 08 C 4096,
25 2008 WL 5211192 (N.D. Ill. Dec. 11, 2008) ............................................................................. 17

26 RasterOps v. Radius, Inc., 861 F. Supp. 1479 (N.D. Cal. 1994).................................................... 12

27 Rubin ex rel. N.L.R.B. v. Vista Del Sol Health Servs., Inc.,
80 F. Supp. 3d 1058 (C.D. Cal. 2015)........................................................................................ 22 28

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1 Sampson v. Murray, 415 U.S. 61 (1974) ........................................................................................ 16

2 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012) ............................................ 23

3 Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) .................................... 19, 21

4 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................... 19, 20

5 Steinle v. City & Cty. of San Francisco, No. 16-CV-02859-JCS, 2017 WL 67064 (N.D. Cal. Jan. 6, 2017) .................................................................................... 5
6 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) .......................................................... 21
7 Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ............................................................................ 23
8 Texas v. United States, 523 U.S. 296 (1998)............................................................................ 19, 20
9 Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d 1181 (E.D. Cal. 2010) .............................. 18
10 U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063 (D. Nev. 2015) ........................ 10
11 U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999) .............................. 19, 21
12 United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ................................................. 24
13 United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ................................................. 9, 14, 22
14 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ........................................... 9, 14, 22
15 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ............................................................. 17, 24
16 Whitmore v. Arkansas, 495 U.S. 149 (1990) ........................................................................... passim
17 Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989) .................................. 20, 21
18 Winter v. Natural Res. Def. Council, 530 F. Supp. 2d 1110 (C.D. Cal. 2008)............................... 11
19 Winter v. Natural Res. Def. Council, 518 F.3d 658 (9th Cir. 2008)............................................... 11
20 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ......................................................... passim
21

22 STATUTES

23 8 U.S.C. § 1373 ....................................................................................................................... passim

24 8 U.S.C. § 1357(g)(1) ....................................................................................................................... 5

25 8 U.S.C. § 1357(g)(10)(B)................................................................................................................ 5

26 Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) .............................................. 5

27

28

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1 REGULATIONS

2 28 C.F.R. pt. 18 .............................................................................................................................. 13

3 44 C.F.R. § 206.440 ....................................................................................................................... 13

4 EXECUTIVE ORDERS
5 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992)...................................................................... 5
6 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012)...................................................................... 4
7 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016)...................................................................... 4
8 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim
9 Exec. Order No. 13,768, § 1, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................... 1, 6
10 Exec. Order No. 13,768, § 2(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................... 6
11 Exec. Order No. 13,768, § 4, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................. 6, 10
12 Exec. Order No. 13,768, § 5, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 6
13 Exec. Order No. 13,768, § 6, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ....................................... 7, 13, 14
14 Exec. Order No. 13,768, § 7, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 7
15 Exec. Order No. 13,768, § 8, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................. 7, 14
16 Exec. Order No. 13,768, § 9, 82 Fed. Reg. 8,799 (Jan. 30, 2017) .......................................... passim
17 Exec. Order No. 13,768, § 10(b), 82 Fed. Reg. 8,799 (Jan. 30, 2017)............................................. 7
18 Exec. Order No. 13,768, § 11, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ..................................... 7, 13, 14
19 Exec. Order No. 13,768, § 12, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 7
20 Exec. Order No. 13,768, § 13, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 7
21 Exec. Order No. 13,768, § 14, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 7
22 Exec. Order No. 13,768, § 15, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ....................................... 1, 8, 14
23 Exec. Order No. 13,768, § 17, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 7
24 Exec. Order No. 13,768, § 18(b), 82 Fed. Reg. 8,799 (Jan. 30, 2017)............................................. 7
25

26 OTHER AUTHORITIES

27 Ltr. from Samuel R. Ramer, Acting Ass’t Att’y Gen., Office of Legis. Affairs, to Sens. Elizabeth Warren and Edward J. Markey (Mar. 7, 2017) ............................... 2, 14
28

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1 Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting
Comm’r, U.S. Customs and Border Protection, et al., Enforcement of the 2 Immigration Laws to Serve the National Interest (Feb. 20, 2017),
https://www.dhs.gov/ sites/ default/ files/ publications/ 17 0220 S1 3 Enforcement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf ................................... 5

4 Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice
5 Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), https:// oig.justice.gov/ reports/ 2016/ 1607.pdf .................................. 6
6 Weekly Declined Detainer Outcome Report (Jan. 28 - Feb. 3, 2017),
7 https://www.ice.gov/ doclib/ ddor/ ddor2017 01-28to02-03.pdf...................................................... 7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

On January 25, 2017, the President signed Executive Order 13,768 for the declared

3 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to

4 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.

5 Reg. 8,799 (Jan. 30, 2017). As explained in the Order, aliens who enter the United States

6 illegally and those who overstay or otherwise violate the terms of their admission and engage in

7 criminal conduct present a particularly “significant threat to national security and public safety.”

8 Id. Those threats are heightened when jurisdictions choose to violate federal law to shield illegal

9 aliens – many of whom have been incarcerated by federal, state, or local authorities – from

10 federal immigration authorities. See id.

11

To address this threat, the Executive Order states that the Executive Branch’s policy is to

12 ensure that States and their political subdivisions comply with existing federal laws. For

13 example, Section 9 of the Order establishes a policy of ensuring that state and local jurisdictions

14 comply with 8 U.S.C. § 1373, which provides that no government entity or official may prohibit

15 or restrict, among other things, the sending or receiving of information regarding the citizenship

16 or immigration status of any individual to federal immigration authorities. Id. § 9, 82 Fed. Reg. at

17 8,801. The Order is a presidential directive, directed to the Attorney General, the Secretary of

18 Homeland Security, and other federal officials. It does not purport to alter the existing

19 requirements of Section 1373 (or any other federal law), impose new burdens on state or local

20 jurisdictions, or expand the legal authority of the Secretary or the Attorney General. Rather, it

21 simply announces the policy of the Executive Branch and directs the Secretary and Attorney

22 General, in their discretion and consistent with their existing legal authority, to ensure that

23 jurisdictions that willfully refuse to comply with Section 1373 not be eligible to receive federal

24 grants, except as deemed necessary for law enforcement purposes. Id. The Order also instructs

25 the Secretary and the Attorney General to take “appropriate enforcements action,” and directs

26 them to report to the President on their progress in implementing this and other directives in the

27 Order, first within 90 days and then again within 180 days. Id. § 15, 82 Fed. Reg. at 8,802.

28

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1 Executive Order 13,768 is not self-executing, however, and the Secretary and Attorney General

2 have not yet taken the several steps necessary to implement the directives of Section 9.1

3

Yet, before such steps or other action have been taken under the Executive Order, the City

4 of Richmond (“City” or “Richmond”) has moved for immediate, emergency injunctive relief to

5 prevent defendants from taking hypothetical future actions against it pursuant to Section 9 of the

6 Order. The City’s lawsuit is premature. Richmond does not claim the loss of any federal funds

7 or, for that matter, contend that any action has been taken against it under the Order. The City

8 does not even allege that such action has been threatened. Indeed, the Secretary has not

9 designated (or even indicated an intent to designate) Richmond as a “sanctuary jurisdiction” in

10 accordance with the process contemplated in Section 9.

11

Further, plaintiff interprets the Order beyond any reasonable construction, insisting that

12 the City could lose “all federal funding,” including reimbursements for mandatory entitlement

13 programs (Doc. 21 at 4, 9). Nevertheless, based on the plain language of the Order, the Attorney

14 General and the Secretary of Homeland Security have determined, among other things, that

15 Section 9(a) will be applied only to “Federal grants” – as stated in the Order – and not to

16 reimbursements under entitlement programs or other types of federal financial assistance; that

17 Section 9(a) will be applied only to grants administered by the Department of Justice and the

18 Department of Homeland Security; and that “appropriate enforcement action” under Section 9(a)

19 would take the form of civil litigation asserting that a jurisdiction’s law or policy is preempted by

20 federal law.

21

For all these reasons, the City cannot show the likelihood of “immediate” irreparable

22 harm, an “essential element” of the standard required to obtain emergency injunctive relief. See

23 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Arcsoft, Inc. v.

24 Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015); see also Painsolvers, Inc. v. State

25

26

1 In this regard, the Department of Justice sent a letter to members of Congress, on March

7, 2017, stating that the Department was “in the process of identifying, in its discretion, what 27 actions, if any, can lawfully be taken in order to encourage state and local jurisdictions to comply

28

with federal law.” See Ltr. from Samuel R. Ramer, Acting Ass’t Att’y Gen., Office of Legis. Affairs, to Sens. Elizabeth Warren and Edward J. Markey (Mar. 7, 2017) (Attachment 1 hereto).

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1 Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123, 1139 (D. Haw. 2010). Rather than meet this

2 standard, the City instead bases its motion on nothing more than speculation concerning the

3 Order’s scope and how the Secretary and Attorney General might interpret and implement it,

4 along with speculation that Richmond will be a subject of enforcement and might lose federal

5 funds. Such speculative assertions fall far short of demonstrating immediate irreparable harm,

6 which by itself requires that plaintiff’s requested emergency relief be denied.

7

In addition, the City also fails to establish a substantial likelihood of success on the merits

8 of its claims, which are subject to dismissal under the justiciability doctrines of ripeness and

9 standing. Article III of the Constitution requires that a plaintiff have standing and that its claims

10 be ripe for judicial consideration. Because a series of steps remain to implement Section 9, the

11 City cannot show the “concrete,” “palpable” injury needed for standing, see Whitmore v.

12 Arkansas, 495 U.S. 149, 155 (1990), and the Executive Order has not been “formalized and its

13 effects felt in a concrete way” as needed for ripeness. See Abbott Labs. v. Gardner, 387 U.S. 136,

14 148-49 (1967). Similarly, the City cannot show any concrete injury attributable to Section 1373

15 itself, which has been in effect since 1996. Moreover, in light of a reasonable construction of the

16 Order, Section 9 does not constitute “coercion” under the Tenth Amendment or otherwise violate

17 the constitutional provisions on which the plaintiff relies.

18

Notably, the Executive Order does not alter or expand the existing law that governs when

19 the Federal Government may revoke a federal grant where the grantee violates legal

20 requirements. Instead, the President – pursuant to his express constitutional authority to ensure

21 that federal agencies “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3 –

22 has directed agency heads to utilize their existing legal authorities “to the extent consistent with

23 law,” see Exec. Order No. 13,768, § 9, in connection with local violations of Section 1373. In

24 other words, the Executive Order does nothing more than direct enforcement of preexisting duties

25 under federal law. Richmond’s conjecture to the contrary does not satisfy its burden of justifying

26 the extraordinary relief it seeks, and the Court should accordingly deny plaintiff’s motion for

27 preliminary injunction.

28

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1

ISSUES PRESENTED

2

1. Whether the plaintiff has established that it will suffer immediate, concrete irreparable

3 harm in absence of a preliminary injunction.

4

2. Whether the plaintiff has established that it can satisfy the requirements of

5 justiciability, including standing and ripeness.

6

3. Whether the public interest and the balance of equities militate against the preliminary

7 injunction sought.

8

4. Whether the plaintiff can seek a nationwide preliminary injunction or only an

9 injunction limited to the plaintiff itself.

10

BACKGROUND

11 I.

Broad Executive Discretion in Enforcement of Immigration Law

12

“The Government of the United States has broad, undoubted power over the subject of

13 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

14 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

15 Congress has granted the Executive Branch significant authority to control the entry, movement,

16 and other conduct of foreign nationals in the United States.

17

Under the INA, the Department of Homeland Security (“DHS”), the Department of

18 Justice, and other agencies of the Executive Branch administer and enforce the immigration laws.

19 Likewise, the INA permits the Executive Branch to exercise considerable executive discretion to

20 direct enforcement pursuant to federal policy objectives. See Arizona Dream Act Coal. v.

21 Brewer, ___ F.3d ___, No. 15-15307, 2017 WL 461503, at *9-10 (9th Cir. Feb. 2, 2017) (“By

22 necessity, the federal statutory and regulatory scheme, as well as federal case law, vest the

23 Executive with very broad discretion to determine enforcement priorities.”). Several Presidents

24 have exercised this discretion by Executive Order. And they have done so in differing ways,

25 reflecting their individual judgments as to how best to take care that the laws of the United States

26 be faithfully executed. See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016)

27 (“Suspending Entry Into the United States of Persons Contributing to the Situation in Libya”);

28 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of

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1 Foreign Sanctions Evaders With Respect to Iran and Syria”); Exec. Order No. 12,807, 57 Fed.

2 Reg. 23,133 (1992) (interdiction of undocumented aliens on oceangoing vessels). Following the

3 President’s lead, the Secretary of Homeland Security has also consistently exercised similar

4 executive discretion in the enforcement of federal immigration law. See, e.g., Mem. from John

5 Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border

6 Protection, et al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20,

7 2017), https://www.dhs.gov/ sites/ default/ files/ publications/ 17_0220_S1_Enforcement-of-the-

8 Immigration-Laws-to-Serve-the-National-Interest.pdf.

9

The INA contains a number of provisions regarding the involvement of state and local

10 authorities in the enforcement of immigration law. For example, Section 287(g) of the INA

11 authorizes the Secretary to enter into written agreements with a state or local government under

12 which officers of such government may “perform a function of an immigration officer in relation

13 to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

14 § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification,

15 apprehension, detention, or removal of aliens not lawfully present in the United States[,]” even

16 without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C.

17 § 1373, ensures the sharing of immigration information between federal and state actors:

18

Notwithstanding any other provision of Federal, State, or local law, a Federal,

19

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

20

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual. 21
Id. § 1373(a);2 see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996).

22 Section 1373 also proscribes prohibiting or restricting any government entity from “maintaining”

23 information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).

24

25

26

2 Cf. Steinle v. City & Cty. of San Francisco, No. 16-CV-02859-JCS, 2017 WL 67064, at

*12 (N.D. Cal. Jan. 6, 2017) (holding, on motions to dismiss, that Section 1373 did not require 27 defendant to notify federal officials of alien’s date of release from local custody). The Federal

28

Government had no occasion to address the scope of Section 1373 on the motions to dismiss in Steinle.

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1

Well before the issuance of Executive Order 13,768, the compliance of state and local

2 governments with Section 1373 has been of interest to federal agencies because such govern-

3 ments are recipients of federal grants. For example, the Inspector General of the Department of

4 Justice issued a memorandum on May 31, 2016, as plaintiff notes (Doc. 1 ¶¶ 31, 43), describing a

5 concern that several state and local governments receiving federal grants were not complying

6 with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,

7 Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of

8 Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), https://

9 oig.justice.gov/ reports/ 2016/ 1607.pdf. After reviewing a sample of local ordinances regarding

10 communication with federal immigration officials, the Inspector General observed that some

11 applications of the ordinances appeared to be inconsistent with Section 1373. Id. at 4-8.

12 Nevertheless, the report noted, “[N]o one at DHS or [Immigration and Customs Enforcement] has

13 made a formal legal determination whether certain state and local laws or policies violate Section

14 1373, and we are unaware of any Department of Justice decision in that regard.” Id. at 8 n.12.

15 II. Executive Order 13,768

16

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

17 the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

18 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

19 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

20 immigration law within the United States. The Order likewise instructs federal officials,

21 including the Secretary of Homeland Security, the Attorney General, and the Director of the

22 Office of Management and Budget (“OMB”), to use “all lawful means” to enforce those laws.

23 See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

24

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

25 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

26 Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future

27 conduct, including instructions to promulgate certain regulations within one year, to take “all

28 appropriate action” to hire additional immigration officers, to seek agreements with state and

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1 local officials under Section 287(g) of the INA (referred to above), to develop a program to

2 ensure adequate prosecution of criminal immigration offenses, and to establish an office to

3 provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11,

4 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take

5 these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14,

6 17, 18(b), 82 Fed. Reg. at 8,799-802.

7

Section 9 of the Executive Order establishes “the policy of the executive branch to ensure,

8 to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with

9 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

10

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

11

Security], in their discretion and to the extent consistent with law, shall ensure that

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

12

dictions) are not eligible to receive Federal grants, except as deemed necessary for

law enforcement purposes by the Attorney General or the Secretary. The Secre-

13

tary has the authority to designate, in his discretion and to the extent consistent

14

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373,

15

or which has in effect a statute, policy, or practice that prevents or hinders the

enforcement of Federal law.

16 Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 further directs the Secretary to publicize, each week,

17 “a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or

18 otherwise failed to honor any detainers with respect to such aliens.” Id. § 9(b), 82 Fed. Reg. at

19 8,801.3 It also instructs the Director of OMB to “obtain and provide relevant and responsive

20

21

3 U.S. Immigration and Customs Enforcement, a component of DHS, published the first weekly reports pursuant to this directive. See Declined Detainer Outcome Report,

22

https://www.ice.gov/ declined-detainer-outcome-report. The reports and accompanying materials make clear that their publication does not constitute a designation of any “sanctuary jurisdiction”

23

under Section 9. See id., FAQs, How does the report inform the decision on whether a location is a sanctuary jurisdiction?, My jurisdiction is on the Declined Detainer Outcome Report. Will we

24

lose our federal funding? (“As set forth in the Executive Order, the Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary

25

jurisdiction. DHS continues to evaluate the appropriate criteria for such designation. . . . ICE does not administer grants, and inclusion on the DDOR will not automatically result in

26

ineligibility for grants. . . . DHS is currently working to develop a process, in coordination with the Department of Justice and other interagency partners, to address this requirement of the

27

EO.”); see also Weekly Declined Detainer Outcome Report (Jan. 28 - Feb. 3, 2017), at 34, https://www.ice.gov/ doclib/ ddor/ ddor2017 01-28to02-03.pdf (“This report should not be

28

considered an exclusive factor in determining a jurisdiction’s level of cooperation with and support of ICE or the law enforcement community”).

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1 information on all Federal grant money that currently is received by any sanctuary jurisdiction.”

2 Id. § 9(c), 82 Fed. Reg. at 8,801.

3

Finally, the Executive Order directs the Secretary of Homeland Security and the Attorney

4 General to report on their progress in implementing the Order, first “within 90 days of the date of

5 [the] order and again within 180 days of the date of [the] order.” Id. § 15, 82 Fed. Reg. at 8,802.

6

Certain decisions regarding implementation of the Executive Order have been made since

7 the defendants filed their responses to the preliminary injunction motions in City and County of

8 San Francisco v. Trump, et al., Case No. 3:17-cv-00485-WHO (N.D. Cal.) and County of Santa

9 Clara v. Trump, et al., Case No. 5:17-cv-00574-LHK (N.D. Cal.). Specifically, relying on the

10 plain text of the Executive Order and in the exercise of their “discretion” to carry out the

11 President’s directives in Section 9, the Attorney General and the Secretary of Homeland Security

12 have determined (1) that Section 9(a) will be applied only to “Federal grants” – as expressly

13 stated in the Order – and not more broadly to other types of federal financial assistance, such as

14 reimbursements under mandatory entitlement programs; (2) that Section 9(a) will be applied only

15 to grants administered by the Department of Justice and the Department of Homeland Security, as

16 reflected in that provision’s references to the Attorney General and the Secretary and not to other

17 federal officials or agencies; (3) that grant funding may be suspended, revoked, or terminated for

18 non-compliance with 8 U.S.C. § 1373 only where compliance with this statute is included as a

19 condition in the grant documents (which first occurred for Department of Justice grants as of the

20 2016-2017 grant year);4 and (4) that the Secretary’s designation of “sanctuary jurisdictions” under

21 Section 9(a) will be based on willful non-compliance with 8 U.S.C. § 1373 and will not be based

22 solely on any refusal to comply with requests by federal immigration officials to detain aliens.

23 Additionally, in the exercise of his authority to “take appropriate enforcement action” under

24 Section 9(a), the Attorney General has determined that any such action would take the form of

25 civil litigation asserting that a jurisdiction’s law or policy is preempted by federal law. See, e.g.,

26

27

4 These determinations are reflected in a recent public statement by the Attorney General, in which he referred to grant programs administered by the Department of Justice. See Press

28

Briefing by Press Secretary Sean Spicer, 3/27/2017, https://www.whitehouse.gov/ the-pressoffice/ 2017/ 03/ 27/ press-briefing-press-secretary-sean-spicer-3272017-29.

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1 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691

2 F.3d 1269 (11th Cir. 2012). Other issues regarding implementation of the Order remain pending,

3 as noted below.

4 III. Richmond’s Claims for Emergency Relief

5

Richmond seeks a preliminary injunction prohibiting the defendants from “enforcing”

6 Section 9(a), “from taking any action pursuant to the Executive Order that would withhold or

7 ‘claw-back’ federal funds,” and “from taking any action pursuant to the Executive Order that

8 would declare or render any jurisdiction ineligible for federal funds” (Doc. 12 at 1, emphasis

9 added). Plaintiff acknowledges, however, that the Order does not clearly delineate the term

10 “sanctuary jurisdiction” (id. at 2), and that the City’s enactment of “legislation about immigration

11 policies” does not make it a “sanctuary jurisdiction” under the Order (Doc. 1 ¶ 110). Richmond

12 also does not claim that the Secretary of Homeland Security has designated it as a “sanctuary

13 jurisdiction” in accordance with the process contemplated in Section 9, and, indeed, the City

14 acknowledges that “[i]t is unclear if [the City] will be considered a ‘sanctuary jurisdiction’” under

15 the Order (id. ¶ 4). Nevertheless, the plaintiff variously alleges that it “believes it may be swept

16 up as a sanctuary jurisdiction under the Executive Order” (id.) and that “there is a substantial

17 probability” that the Order will be “enforce[d]” against it (id. ¶ 67).

18

Similarly, the City quotes Section 9(a) of the Order to the effect that “the Attorney

19 General and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully

20 refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal

21 grants” (Doc. 12 at 5, emphasis added), and it quotes the Attorney General to the effect that “the

22 Department of Justice will require jurisdictions seeking or applying for Department grants to

23 certify compliance with Section 1373 as a condition for receiving these awards” (id. at 2,

24 emphasis added). Nevertheless, the City also speculates that the Order “seeks to give two Cabinet

25 members the unfettered discretion to take away all federal funding from Richmond” (id. at 4,

26 emphasis added). Thus, even though Section 9(a) refers only to “Federal grants” and to the

27 Secretary and Attorney General, the City alleges that it stands to lose all of its federal funding –

28 both grants and reimbursements – in areas such as social services, housing, and emergency

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1 services, including “mandatory entitlement services” (id. at 7-10, 17-19). The City does not

2 allege, however, that any of its federal funding has been withheld or revoked, or that any federal

3 agency has threatened such action.

4

ARGUMENT

5

A preliminary injunction is “an extraordinary and drastic remedy” that should not be

6 granted “unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v.

7 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972

8 (1997) (per curiam)). The Supreme Court has clarified the requirements for a preliminary

9 injunction in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Under Winter,

10 “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the

11 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

12 balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20

13 (emphasis added). Critically, this is “a four-part conjunctive test, not . . . a four-factor balancing

14 test”; thus, Winter “reject[ed] the sliding-scale test as to the irreparable-injury prong” previously

15 used by some courts. U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063, 1070 (D.

16 Nev. 2015); see Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

17 (“To the extent that our cases have suggested a lesser standard, they are no longer controlling, or

18 even viable.”) (footnote omitted). Further, “[t]he party seeking the injunction bears the burden of

19 proving these elements.” Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK, 2013 WL

20 4510629, at *4 (N.D. Cal. Aug. 22, 2013).

21

Plaintiff’s motion fails for at least three reasons. First, the Executive Order does not

22 change existing law, but merely instructs the Attorney General and the Secretary of Homeland

23 Security to “employ all lawful means to ensure the faithful execution” of federal law, including

24 8 U.S.C. § 1373. See Exec. Order No. 13,768, §§ 4, 9, 82 Fed. Reg. at 8,800, 8,801. Second,

25 Richmond cannot show the imminent irreparable harm necessary for emergency relief because

26 the Secretary and the Attorney General must take a series of steps before Section 9 of Executive

27 Order 13,768 could have any tangible effect on the City. Finally, and relatedly, plaintiff lacks a

28 “likelihood of success” given the justiciability flaws in its complaint. Among them, Richmond

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1 has failed to establish that (1) it has suffered “concrete” injury, as it must under the standing

2 doctrine; (2) it has suffered the kind of substantial harm that the Supreme Court has identified as

3 necessary to overcome ripeness concerns in cases asserting pre-enforcement challenges to agency

4 action; and (3) its claims satisfy the “fitness” element of the ripeness inquiry because unimple-

5 mented directives contained in an Executive Order are not fit for judicial review under binding

6 precedent. Thus, because plaintiff’s claims are subject to dismissal on several grounds, it

7 necessarily cannot show a “likelihood of success” on the merits of those claims.

8

For these reasons, the motion for preliminary injunction must be denied.

9 I. 10
11

Plaintiff Cannot Show Irreparable Harm
A. The Supreme Court Requires a Likelihood of Immediate, Concrete Irreparable Harm Before an Injunction May Issue

12

As reflected in Winter, which focused on irreparable harm, see 555 U.S. at 22, satisfying

13 the requirement of immediate and irreparable harm is “crucial” to securing a preliminary

14 injunction. Miller ex rel. NLRB v. California Pac. Med. Ctr., 991 F.2d 536, 543 (9th Cir. 1993).

15 The district court in Winter had granted a preliminary injunction, relying on a “‘sliding scale’

16 whereby the required degree of harm increases as the likelihood of success decreases,” and vice

17 versa. Winter v. Natural Res. Def. Council, 530 F. Supp. 2d 1110, 1113 n.4 (C.D. Cal. 2008).

18 Preliminary relief was appropriate, the court held, because plaintiffs had demonstrated “a strong

19 likelihood of prevailing on the merits . . . and there [was] a possibility of irreparable harm.” Id. at

20 1118. The Ninth Circuit affirmed on the same basis. Winter v. Natural Res. Def. Council, 518

21 F.3d 658, 697 (9th Cir. 2008).

22

The Supreme Court reversed. In doing so, the Court noted that its “frequently reiterated

23 standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is

24 likely in the absence of an injunction.” 555 U.S. at 22. “Issuing a preliminary injunction based

25 only on a possibility of irreparable harm,” the Supreme Court said, “is inconsistent with our

26 characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a

27 clear showing that the plaintiff is entitled to such relief.” Id. Thus, a party seeking a preliminary

28 injunction must establish both that “he is likely to succeed on the merits [and] that he is likely to

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1 suffer irreparable harm in the absence of preliminary relief” – as well as “that the balance of

2 equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (emphasis

3 added); see Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014) (plaintiff “must demon-

4 strate that irreparable injury is likely . . . not merely . . . possible”).

5

Further, “[t]he threat of irreparable harm must . . . be ‘immediate.’” Arcsoft, Inc. v.

6 Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015) (quoting Caribbean Marine Servs.

7 Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)). “A plaintiff must do more than merely allege

8 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened

9 injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac. Seafood Grp., 822

10 F.3d 1011, 1022 (9th Cir. 2016). That injury, moreover, must be “real and concrete” rather than

11 merely “abstract.” See Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197, 1201 (9th

12 Cir. 1980); Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344, 1349 (D. Mont. 2014).

13

Finally, where the plaintiff “has failed to establish a likelihood of irreparable harm,” a

14 court need not even consider the other requirements. Painsolvers, Inc. v. State Farm Mut. Auto.

15 Ins. Co., 685 F. Supp. 2d 1123, 1139 (D. Haw. 2010); see RasterOps v. Radius, Inc., 861 F. Supp.

16 1479, 1498 (N.D. Cal. 1994).

17

B. The City Cannot Demonstrate a Likelihood of Immediate,

18

Concrete Irreparable Harm Given the Absence of Any Action

under Section 9 or 8 U.S.C. § 1373

19

Measured against this legal backdrop, Richmond has not established the threat of

20 “immediate” and “concrete” irreparable harm necessary to secure a preliminary injunction. The

21 Executive Order subjects the City not to new law, but only to the bounds of existing law. Section

22 9 directs the Secretary and Attorney General to use their existing legal authority to ensure that

23 jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” will not be eligible to receive

24 Federal grants “to the extent consistent with law.” By its terms, that provision incorporates the

25 body of law that governs federal grants and defines when they can be declined for failing to

26 satisfy a condition – here, compliance with Section 1373. By specifying that the authority under

27 Section 9 be exercised “to the extent consistent with law,” the President has directed the Secretary

28

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1 and the Attorney General to follow the governing legal limitations, such as their existing authority

2 to enforce conditions on grant eligibility and the procedural requirements for making or revoking

3 grants. See, e.g., 28 C.F.R. pt. 18 (Office of Justice Programs Hearing and Appeal Procedures);

4 44 C.F.R. § 206.440 (appeals in Hazard Mitigation Grant Program). There is no indication that

5 the Order will be implemented inconsistent with those limitations or with any other applicable

6 laws.

7

Furthermore, Executive Order 13,768 is not self-executing. Rather, the Order sets forth

8 policies and priorities, and directs the Departments of Justice and Homeland Security to take

9 additional discretionary actions going forward to enforce federal immigration laws more fully.

10 Many of the Order’s provisions thus merely direct these agencies to begin internal preparations to

11 fully enforce federal law. For example, the Order directs the Secretary of Homeland Security to

12 promulgate certain regulations within a year, and it directs the Secretary and the Attorney General

13 to develop a program to ensure adequate prosecution of criminal immigration offenses. See Exec.

14 Order No. 13,768, §§ 6, 11, 82 Fed. Reg. at 8,800, 8,801. In several other respects, the Order is a

15 presidential directive to the Secretary and Attorney General guiding their future exercise of

16 discretion in the enforcement of immigration law. See Arizona Dream Act Coal., ___ F.3d at ___,

17 2017 WL 461503, at *10 (“By necessity, the federal statutory and regulatory scheme, as well as

18 federal case law, vest the Executive with very broad discretion to determine enforcement

19 priorities.”). Similarly, 8 U.S.C. § 1373 sets forth a federal policy and several prohibitions, but

20 does not provide a concrete enforcement mechanism.

21

Section 9 of the Order directs the Secretary to designate, in his discretion and to the extent

22 consistent with law, whether a state or local government constitutes a “sanctuary jurisdiction.”

23 Section 9 likewise directs the Secretary and the Attorney General to ensure that such jurisdictions

24 are ineligible to receive federal grants, “except as deemed necessary for law enforcement

25 purposes.” By expressly directing that such future discretionary agency actions be exercised

26 “consistent with law,” see Exec. Order No. 13,768, § 9, the Order incorporates, among other

27 things, the law regarding grant conditions and procedures.

28

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1

The same is true of the Order’s direction that the Attorney General “take appropriate

2 enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute,

3 policy, or practice that prevents or hinders the enforcement of Federal law.” Id. § 9(a), 82 Fed.

4 Reg. at 8,801. The City fails to acknowledge that existing law and practice already contemplate

5 certain federal actions against state and local laws that frustrate the federal regulation of

6 immigration. For example, the Federal Government may seek to enjoin a state or local statute

7 that impermissibly conflicts with the government’s “broad, undoubted power over the subject of

8 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

9 2497 (2012); see, e.g., United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United

10 States v. Alabama, 691 F.3d 1269 (11th Cir. 2012). As noted above, in fact, the Attorney General

11 has determined that any “appropriate enforcement action” under Section 9 will take that form.

12

As a result, a series of future actions must occur before implementation of Section 9 or 8

13 U.S.C. § 1373 could have any concrete effect on Richmond: Among other things, (1) the

14 Attorney General and the Secretary of Homeland Security must determine exactly what

15 constitutes “willful refusal to comply with 8 U.S.C. § 1373”; (2) the Secretary must identify any

16 state or local governments that constitute “sanctuary jurisdictions” and make formal designations

17 to that effect; (3) the Secretary and the Attorney General must decide which of their agencies’

18 grants are “necessary for law enforcement purposes”; (4) the Secretary and the Attorney General

19 must determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant

20 grant funds; and (5) the Secretary and the Attorney General must determine how to implement

21 those actions “consistent with law.” The Order thus explicitly contemplates that some time will

22 be required for implementation.5

23

24

5 See, e.g., Exec. Order No. 13,768, § 6 (requiring Secretary to promulgate regulations “to ensure the assessment and collection of all fines and penalties that the Secretary is authorized

25 under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States”); § 8 (requiring Secretary to enter into

26 agreements with state and local officials under Section 287(g) of INA); § 11 (requiring Secretary

and Attorney General “to develop and implement a program that ensures that adequate resources 27 are devoted to the prosecution of criminal immigration offenses”); § 15 (requiring Secretary and

28

Attorney General to “report on the progress of the directives contained in this order within 90 days . . . and again within 180 days.”); see also Ltr. from Samuel R. Ramer, Acting Ass’t Att’y

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1

Richmond does not allege that the Federal Government has taken any of these actions.

2 Nor does the City claim that it has been designated as a “sanctuary jurisdiction” or that it has been

3 denied any federal funds. The City likewise does not allege that it has been notified that any

4 funds will be denied. None of those actions has occurred, and those events may never occur. The

5 City’s conjecture about the possibility of future harm does not justify preliminary injunctive

6 relief. See Winter, 555 U.S. at 22; see also Connecticut v. Massachusetts, 282 U.S. 660, 674

7 (1931) (An injunction “will not be granted against something merely feared as liable to occur at

8 some indefinite time in the future.”).

9

In arguing irreparable harm, plaintiff asserts, “If federal funds are withdrawn, the result

10 will be catastrophic” (Doc. 12 at 17, emphasis added). But that begs the question of whether the

11 City has shown a threat of “immediate” irreparable harm, which it has not. See Arcsoft, Inc., 153

12 F. Supp. 3d at 1071. First, plaintiff argues that it provides certain services whose costs the federal

13 government later reimburses and that it must choose, therefore, either to provide the services

14 without an assurance of reimbursement or to discontinue the services (Doc. 12 at 18). But far

15 from irreparable harm, this is instead a risk that grant recipients always face: If the terms of the

16 grant require compliance with certain federal laws, such as Section 1373, and those terms are not

17 followed, then the recipient is in violation of the grant conditions, and there is a risk that the

18 Federal Government may enforce those terms to the detriment of the grantee and its financial

19 planning. On the other hand, if the terms of the grant do not require compliance with Section

20 1373, the Executive Order does not purport to give the Secretary or Attorney General the

21 unilateral authority to alter those terms. This is underscored by the fact that Executive Order

22 13,768 does not change the law, but only instructs the Attorney General and the Secretary of

23 Homeland Security to enforce existing law. Moreover, the City’s claimed harm is economic in

24 nature, and “[i]t is well established that mere economic injury does not constitute irreparable

25 harm.” Kitazato v. Black Diamond Hosp. Invs., LLC, 655 F. Supp. 2d 1139, 1147 (D. Haw.

26

27 Gen., Office of Legis. Affairs, to Sens. Elizabeth Warren and Edward J. Markey (Mar. 7, 2017)

28

(Attachment 1 hereto); Declined Detainer Outcome Report, FAQs, https://www.ice.gov/ declineddetainer-outcome-report.

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1 2009); see Sampson v. Murray, 415 U.S. 61, 89 (1974) (“Mere injuries, however substantial, in

2 terms of money, time and energy necessarily expended in the absence of a[n] [injunction], are not

3 enough. The possibility that adequate compensatory or other corrective relief will be available at

4 a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable

5 harm.”); Ali v. United States, 932 F. Supp. 1206, 1210 (N.D. Cal. 1996) (“Economic injury alone

6 does not support a finding of irreparable harm.”).

7

Second, the City asserts that the Executive Order subjects Richmond to “uncertainty”

8 regarding its budgetary decision-making (Doc. 12 at 18). Budgetary “uncertainty,” however, is

9 not the “real and concrete injury” sufficient to justify a preliminary injunction. See Los Angeles

10 Mem’l Coliseum Comm’n, 634 F.2d at 1201. Further, governmental budgeting always suffers

11 from some degree of uncertainty, in relation to both costs (which are based on services provided)

12 and income (which is based in part on tax revenues). In other words, the plaintiff cannot

13 accurately claim that an otherwise certain endeavor is now less certain. Legal restrictions,

14 moreover, always create some risk, whether the likelihood of enforcement is low or high.

15

Additionally, even if any hypothetical “uncertainty” regarding the City’s future receipt of

16 federal grants constituted irreparable harm (which it does not), an injunction setting aside the

17 Order would not remedy any such harm. As noted already, the Order does not alter or expand

18 existing law governing the Federal Government’s discretion to revoke or deny a grant where the

19 grantee violates legal requirements. Thus, any uncertainty the plaintiff might hypothetically face

20 would exist regardless of whether the Court were to enjoin the Order itself. Additionally, the

21 terms and conditions of an existing grant are governed by the grant documents, and any forced

22 return of grant funds already provided could occur only pursuant to those terms and conditions.

23

Third, the City asserts that it will suffer irreparable harm in absence of an injunction

24 because the Executive Order has “eroded” the trust of Richmond residents in law enforcement

25 and made residents “reluctant to cooperate out of fear and concern about [the City’s] relationship”

26 with federal immigration authorities (Doc. 12 at 18). As noted earlier, however, the irreparable

27 harm needed to secure a preliminary injunction must be “real and concrete” rather than merely

28 “abstract.” See Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1201; Native Ecosystems

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1 Council, 40 F. Supp. 3d at 1349. “Fear and concern” are far from “concrete” in themselves, and

2 any concrete effects of a “reluctance to cooperate” would be far from “immediate.”

3

Fourth, the City asserts that “the deprivation of constitutional rights unquestionably

4 constitutes irreparable injury” (Doc. 12 at 17). The City, however, does not allege a “depriva-

5 tion” of its “constitutional rights.” Instead, Richmond primarily points to a claimed violation of

6 the constitutional structures that govern relationships among the branches of the Federal

7 Government and between the federal and state governments, which is insufficient to establish

8 irreparable injury. “[W]hile a violation of constitutional rights can constitute per se irreparable

9 harm . . . per se irreparable harm is caused only by violations of ‘personal’ constitutional rights . .

10 . to be distinguished from provisions of the Constitution that serve ‘structural’ purposes, like the

11 Supremacy Clause.” N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 367

12 (S.D.N.Y. 2008) (internal quotation marks omitted), rev’d on other grounds, 556 F.3d 114 (2d

13 Cir. 2009); accord Prof’l Towing & Recovery Operators of Ill. v. Box, No. 08 C 4096, 2008 WL

14 5211192, at *13 (N.D. Ill. Dec. 11, 2008) (“[T]he Court concludes that Plaintiffs are not entitled

15 to a presumption of irreparable harm because the constitutional rights at stake here are not

16 ‘personal’ in nature.”); see Am. Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110,

17 1127 (C.D. Cal. 2008) (noting that “[i]n the case of Supremacy Clause violations,” the

18 presumption of irreparable harm “is not necessarily warranted”), rev’d on other grounds, 559

19 F.3d 1046 (9th Cir. 2009). Not surprisingly, therefore, the cases on which plaintiff relies address

20 alleged violations of individual constitutional rights, none of which are involved here (Doc. 12 at

21 17). See de Jesús Ortega Melendres v. Arpaio, 695 F.3d 990, 994-95, 1002 (9th Cir. 2012)

22 (alleging that local law enforcement officers had engaged in racial profiling in violation of

23 plaintiffs’ individual Fourth and Fourteenth Amendment rights); see also Elrod v. Burns, 427

24 U.S. 347, 373 (1976) (holding that “[t]he loss of First Amendment freedoms, for even minimal

25 periods of time, unquestionably constitutes irreparable injury”) (emphasis added).6

26

27

6 Besides Elrod and de	  Jesús	  Ortega	  Melendres,	  the	  City	  relies	  on	  Washington v. Trump,

28

847 F.3d 1151 (9th Cir. 2017), in relation to irreparable harm (Doc. 12 at 17). Washington did not, however, address whether the deprivation of constitutional rights alone constitutes irreparable

Opposition Prelim. Inj.

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1

In sum, the plaintiff has not demonstrated, and cannot “demonstrate[,] that irreparable

2 injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22.

3 II. 4

The City Cannot Establish a Likelihood of Success on the Merits Because, Among Other Things, Its Claims Are Non-Justiciable

5

A party seeking a preliminary injunction must also “establish that [it] is likely to succeed

6 on the merits.” Winter, 555 U.S. at 20 (emphasis added). Richmond cannot establish such a

7 likelihood in this case because its claims are non-justiciable under principles of ripeness and

8 standing. See Pollara v. Radiant Logistics Inc., No. CV 12-0344 GAF (SPX), 2012 WL

9 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing to bring a claim . . . is a

10 necessary predicate to demonstrate a likelihood of success on the merits”); Timbisha Shoshone

11 Tribe v. Salazar, 697 F. Supp. 2d 1181, 1188 (E.D. Cal. 2010) (“Because [Defendant] raises

12 serious questions as to the Court’s subject matter jurisdiction over Plaintiffs’ claim, Plaintiffs fail

13 to establish the likelihood of success on the merits of their claims.”). For the same reasons that

14 plaintiff cannot establish the “irreparable injury” needed for a preliminary injunction, it also

15 cannot show a likelihood of success on the merits because its claims are subject to dismissal.

16 Winter, 555 U.S. at 20.

17

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

18 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

19 justiciable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288

20 F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and

21 ripeness. “While standing is concerned with who is a proper party to litigate a particular matter,

22 the doctrines of mootness and ripeness determine when that litigation may occur.” Haw. Cty.

23 Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks

24 standing or its claims are unripe, the court lacks jurisdiction. See Nat’l Inst. of Family & Life

25 Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

26

27

28

harm. Rather, the decision discussed the sources of actual harm due to the challenged action. See 847 F.3d at 1169.

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1

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must

2 demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and

3 defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

4 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

5 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

6 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be

7 “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. “[S]tanding is

8 perhaps the most important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City of Dallas, 493

9 U.S. 215, 231 (1990) (internal quotation marks omitted).

10

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

11 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

12 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

13 claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

14 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523

15 U.S. 296, 300 (1998) (internal quotation marks omitted).

16

In assessing constitutional ripeness in the context of a “pre-enforcement challenge” to a

17 statutory or administrative enactment, the courts consider “both the fitness of the issues for

18 judicial decision and the hardship to the parties of withholding court consideration.” Abbott

19 Labs., 387 U.S. at 149. “A claim is fit for decision if the issues raised are primarily legal, do not

20 require further factual development, and the challenged action is final.” Standard Alaska Prod.

21 Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the

22 court and the parties would “benefit from deferring review until the agency’s policies have

23 crystallized and the question arises in some more concrete and final form.” Eagle-Picher Indus.,

24 Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W.

25 Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not

26 fit for decision where administrative proceedings had not concluded and court would “benefit”

27 from outcome of those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must

28 show that withholding review would result in direct and immediate hardship and would entail

Opposition Prelim. Inj.

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1 more than possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325

2 (9th Cir. 1989) (internal quotation marks omitted).

3

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

4 constitutional standing, Steel Co., 523 U.S. at 102-03, and its claims are not constitutionally ripe

5 for judicial review, Abbott Labs., 387 U.S. at 148-49. Given the many steps that must be taken

6 before any federal funds might be withheld under Section 9 of the Executive Order and 8 U.S.C.

7 § 1373, see supra at 14, the City has not suffered any “concrete,” “objective,” and “palpable”

8 injury. See Whitmore, 495 U.S. at 155; Bigelow, 421 U.S. at 816-17. Although plaintiff alleges

9 that the Order has created “uncertainty” regarding its budgetary decision-making (Doc. 12 at 18),

10 any such “uncertainty” would be “abstract” and “subjective” rather than “concrete.” See

11 Whitmore, 495 U.S. at 155; Bigelow, 421 U.S. at 816-17.7

12

The same is true of the City’s assertion that the Order has “eroded” the trust of residents in

13 local law enforcement and made residents “reluctant to cooperate out of fear and concern about

14 [law enforcement’s] relationship” with federal immigration authorities (Doc. 12 at 18): “fear and

15 concern” are obviously “abstract” and “subjective” rather than “concrete.” The City also asserts

16 that this alleged “reluctance” “threatens the safety and welfare of Richmond’s residents” (id.).

17 The Order, however, reflects a judgment that public safety is best served by identifying and

18 removing aliens who are unlawfully present, and the City’s contrary assertion is speculative.

19

Further, plaintiff’s claims are not constitutionally ripe because Section 9 of the Order “has

20 [not] been formalized and its effects felt in a concrete way.” Abbott Labs., 387 U.S. at 148-49.

21 Implementation of Section 9 “rests upon [several] contingent future events” – including

22 clarification of some of its terms – and those terms may ultimately be defined to exclude the City

23 or its grants or otherwise to greatly diminish the Order’s “anticipated” impact. See Texas, 523

24 U.S. at 300. Because Section 9 has not yet been implemented and the Secretary of Homeland

25 Security and Attorney General must take several actions before that can occur, this Court would

26 7 The City clearly lacks standing to seek an order against “declar[ing] or render[ing] any
27 jurisdiction ineligible for federal funds” (Doc. 12 at 1, emphasis added), in that plaintiff cannot

28

show an “injury in fact” in relation to the eligibility or ineligibility of every jurisdiction in the country.

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1 greatly “benefit from deferring review” until the parameters of its implementation “have

2 crystallized and the question arises in some more concrete and final form” that is “fit” for judicial

3 decision. Eagle-Picher Indus., Inc., 759 F.2d at 915; see U.S. W. Commc’ns, 193 F.3d at 1119;

4 see also Abbott Labs., 387 U.S. at 149.

5

For the same reason, plaintiff cannot rely on case law regarding pre-enforcement

6 challenges to statutes or other government actions under a “threat of prosecution” (Doc. 12 at 20

7 n.4). See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (noting that “plaintiff

8 could bring a preenforcement suit when he has alleged an intention to engage in a course of

9 conduct arguably affected with a constitutional interest, but proscribed by a statute, and there

10 exists a credible threat of prosecution thereunder”) (internal quotation marks omitted); see also

11 MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128-129 (2007). Until the Attorney General

12 and Secretary of Homeland Security resolve pending questions regarding implementation of the

13 Executive Order, it is unknown what could prompt the Secretary and Attorney General to take

14 action against any jurisdiction under Section 9, much less whether they might take action against

15 Richmond specifically.

16

Finally, the uncertainties surrounding the implementation of Section 9 and the need for

17 “factual development” greatly outweigh any “hardship” to the City from awaiting those

18 developments. Standard Alaska Prod. Co., 874 F.2d at 627. As noted already, several steps must

19 be taken before Section 9 can be implemented, including a determination as to what constitutes a

20 “sanctuary jurisdiction,” the specific grants covered, and how to limit those grants “consistent

21 with law.” Those determinations will have a bearing on whether Section 9 is eventually applied

22 to the plaintiff or some federal grants that currently benefit the plaintiff. Thus, any “hardship” to

23 the City is far from “immediate,” and its protestation of budgetary “uncertainty” does not

24 constitute actual “financial loss” – which, even where it occurs, does not qualify as “hardship”

25 under this analysis. See Winter, 900 F.2d at 1325.

26

Aside from the lack of justiciability of the City’s claims, the decisions recently made

27 regarding implementation of the Executive Order greatly diminish any likelihood of success on

28 the merits. See supra at 8. For example, Richmond cannot possibly argue that the potential to

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1 lose grants from the Department of Justice and the Department of Homeland Security constitutes

2 “coercion” (Doc. 12 at 13) akin to a State’s potential loss of all Medicaid funding. See Nat’l

3 Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2602 (2012). Similarly, since the

4 designation of “sanctuary jurisdictions” under the Order will not be based solely on any refusal to

5 comply with requests by federal immigration officials to detain aliens, the plaintiff cannot argue

6 that the Order violates the Tenth Amendment by “demanding that state and local governments

7 detain individuals who may be subject to removal at the request of federal officials” (Doc. 12 at

8 14).8 And Richmond officials and employees would not be unconstitutionally “commandeered”

9 (id.) if the Attorney General took “appropriate enforcement action” by filing a civil action

10 asserting that the City’s law or policy is preempted by federal law. See, e.g., United States v.

11 South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th

12 Cir. 2012). The same is true of plaintiff’s claims under the Separation of Powers, the Spending

13 Clause, and the Due Process Clause. Moreover, the constitutionality of 8 U.S.C. § 1373 itself is

14 well-established. See City of N.Y. v. United States, 179 F.3d 29, 35 (2d Cir. 1999).

15 III. 16

The Public Interest and the Balance of Equities Militate Against the Injunction Sought

17

Lastly, a party seeking a preliminary injunction must “establish . . . that the balance of

18 equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.

19 Where the Federal Government is the defendant, these factors “merge” into one. Nken v. Holder,

20 556 U.S. 418, 435 (2009). The most pertinent and concretely expressed public interest in relation

21 to this case is contained in 8 U.S.C. § 1373, which expresses the public interest in supporting the

22 enforcement of federal immigration law. Section 9 of the Order is meant simply to “ensure”

23 compliance with that statute. See Exec. Order No. 13,768, § 9(a), 82 Fed. Reg. at 8,801.

24 Therefore, the public interest lies in allowing the Executive Branch to pursue the necessary steps

25 to implement this Order. See N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010)

26 (noting that “it is obvious that compliance with the law is in the public interest”); Rubin ex rel.

27

28

8 For the same reason, the Order does not “expos[e] the [City] to liability under the Fourth Amendment” (Doc. 12 at 15).

Opposition Prelim. Inj.

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1 NLRB v. Vista del Sol Health Servs., Inc., 80 F. Supp. 3d 1058, 1108 (C.D. Cal. 2015) (stating

2 that “the public interest favors ensuring compliance with federal law”). Additionally, the public

3 interest prohibits judicial “advisory opinions,” which the City’s motion would require this Court

4 to render in relation to an Executive Order that has not yet been implemented. See Coal. for a

5 Healthy Cal. v. FCC, 87 F.3d 383, 386 (9th Cir. 1996).

6 IV. No Injunction Should Issue Against the President

7

Even if an injunction were otherwise appropriate, it should not be issued against the

8 President of the United States, whom the City has chosen to name as a defendant. A request to

9 enjoin the President “draws the Court into serious separation-of-powers issues. . . . [T]he

10 Supreme Court has sent a clear message that an injunction should not be issued against the

11 President for official acts.” Newdow v. Bush, 391 F. Supp. 2d 95, 105, 106 (D.D.C. 2005); see

12 Mississippi v. Johnson, 71 U.S. 475, 500 (1866); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir.

13 1996) (noting that the Supreme Court has issued a “stern admonition” that injunctive relief

14 against the President personally is an “extraordinary measure not lightly to be undertaken”).

15 V. 16

Any Preliminary Injunction Herein Should Be Limited to the Plaintiff

17

Even if the Court were to conclude that plaintiff has satisfied the requirements for a

18 preliminary injunction, the Court should not enter the “nationwide” injunction that the City seeks

19 (Doc. 12 at 1). “[A]n injunction must be narrowly tailored to affect only those persons over

20 which [the court] has power, and to remedy only the specific harms shown by the plaintiffs, rather

21 than to enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117

22 (9th Cir. 2004) (internal quotation marks omitted). Thus, courts routinely deny requests for

23 nationwide injunctive relief. See Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying

24 nationwide injunction insofar as it “grants relief to persons other than” named plaintiff); Skydive

25 Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012) (affirming district court’s

26 refusal to grant nationwide relief).

27

Here, the preliminary injunction is sought by the City of Richmond, which has no

28 legitimate interest in the Executive Order’s effect on other jurisdictions. Thus, the Court should

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1 not enter an injunction that is broader than necessary to prevent any irreparable harm to the

2 plaintiff (although, as discussed above, there is none). Any injunction should not extend to other

3 state or local governments. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163

4 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could

5 not seek to enjoin such an order on the ground that it might cause harm to other parties”); see also

6 Envtl. Def. Fund v. Marsh, 651 F.2d 983, 1006 (5th Cir. 1981) (court must take into account “the

7 larger interests of society that might be adversely affected by an overly broad injunction”). A

8 nationwide injunction would not only be overbroad; it also would effectively enable one district

9 judge to prevent the government from defending the constitutionality of the Executive Order in

10 any other court, and interfere with the development of the law in other circuits. See United States

11 v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).

12

Furthermore, a nationwide injunction would be especially inappropriate here because

13 Section 9 of the Order would impact different jurisdictions differently, once steps are taken to

14 implement it “consistent with law.” The way in which the Order might eventually apply to any

15 individual jurisdiction will depend on that jurisdiction’s policies and practices and the specific

16 federal grant terms and procedures that are at issue with respect to the grants received or applied

17 for by the jurisdiction.9 No nationwide, universal injunction could possibly account for that

18 diversity.

19

CONCLUSION

20

Accordingly, plaintiff’s motion for preliminary injunction should be denied.

21 Dated: April 18, 2017

22 Respectfully submitted,
23

CHAD A. READLER

24

Acting Assistant Attorney General

25

26

9 Thus, this case is distinguishable from Washington v. Trump, 847 F.3d 1151 (9th Cir.

2017), on which the plaintiff relies (Doc. 12 at 10). There, the plaintiffs sought a nationwide 27 injunction regarding an Executive Order that applied to individuals, whose circumstances would

28

not depend on their geographical locations. Here, in contrast, the challenged Order will be applied, if at all, on a geographical basis, to each jurisdiction according to its circumstances.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Opposition Prelim. Inj. No. 3:17-cv-01535-WHO

BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA
25

 
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1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19
Plaintiff, 20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the United 23 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 24 General of the United States, and the
UNITED STATES OF AMERICA, 25
Defendants. 26

Case No. 3:17-cv-01535-WHO
CITY OF RICHMOND’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
Date: May 10, 2017 Time: 2:00 p.m. Judge: Hon. William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 No Trial Date

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION; Case No. 3:17-cv-01535 WHO

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1 2 3 I. 4 II. 5 III. 6 7 8 9 10 11 12 13 IV. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .........................................................................................1 INTRODUCTION ...............................................................................................................1 ARGUMENT .......................................................................................................................5 A. Richmond Will Suffer Irreparable Harm In The Absence Of Injunctive Relief......5 B. Richmond’s Claims Are Justiciable.........................................................................8 C. The Balance of the Equities Supports A Preliminary Injunction...........................11 D. An Injunction May Issue Against the President or Inferior Officers.....................12 E. A Nationwide Injunction is Warranted ..................................................................12 F. Defendants’ “Determinations” Are Not Binding and Do Not Cure the Executive
Order’s Unconstitutionality ...................................................................................13 CONCLUSION ..................................................................................................................14

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1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 Adam Bros. Farming, Inc. v. Cty. of Santa Barbara,
5 604 F.3d 1142 (9th Cir. 2010).......................................................................................................9

6 American Trucking Ass’ns, Inc. v. City of Los Angeles, 7 559 F.3d 1046 (9th Cir. 2009) ......................................................................................................7
8 Ariz. Dream Act Coal. v. Brewer, No. 15-15307, 2017 U.S. App. LEXIS 1919 (9th Cir. Feb. 2, 2017) ...........................................11
9 Babbitt v. UFW Nat’l Union,
10 442 U.S. 289 (1979)..................................................................................................................8, 9
11 Bassett v. Snyder, 12 951 F. Supp. 2d 939 (E.D. Mich. 2013)........................................................................................5

13 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ....................................................................................................13
14

15

Califano v. Yamasaki, 442 U.S. 682 (1979)....................................................................................................................12

16 California Pro-Life Council, Inc. v. Getman,
17 328 F.3d 1088 (9th Cir. 2003).......................................................................................................9

18 Citicorp Servs., Inc. v. Gillespie, 19 712 F. Supp. 749 (N.D. Cal. 1989) ...............................................................................................8

20 Coalition for Econ. Equity v. Wilson, 1996 WL 691962 (N.D. Cal. Nov. 27, 1996) ...............................................................................8
21
Cope v. Scott, 22 45 F.3d 445 (DC Cir. 1995) ...........................................................................................................4
23 Elrod v. Burns,
24 427 U.S. 347 (1976)......................................................................................................................7

25 Franklin v. Massachusetts, 505 U.S. 788 (1992)....................................................................................................................12
26
27 Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ................................................................................................................10
28

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1 Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197 (9th Cir. 1980) ......................................................................................................6
2
3 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ........................................................................................................7
4 Nelson v. NASA,
5 530 F.3d 865 (9th Cir. 2008) ........................................................................................................8

6 Panama Ref. Co. v. Ryan, 7 293 U.S. 388 (1935) ....................................................................................................................12

8 Schalk v. Teledyne, Inc.,
751 F. Supp. 1261 (W.D. Mich. 1990) .........................................................................................6 9

10

Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) ......................................................................................................8

11 South Dakota v. Dole,
12 483 U.S. 203 (1987).......................................................................................................................4

13 Susan B. Anthony List v. Driehaus, 14 134 S. Ct. 2334 (2014) ........................................................................................................8, 9, 10
15 Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) ...........................................................................................4
16 Texas v. United States,
17 787 F.3d 733 (5th Cir. 2015).........................................................................................................8
18 Texas v. United States, 19 809 F.3d 134 (5th Cir. 2015) ......................................................................................................12

20 Texas v. United States, 809 F.3d at 187-88 (5th Cir. 2015) .............................................................................................13
21
22 Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568 (1985) ....................................................................................................................10
23 U.S. v. JP Morgan Chase Bank Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL:
24 $446,377.36, 835 F.3d 1159 (9th Cir. 2016) ...............................................................................10

25 Warren v. United States Parole Com., 26 F.2d 183 (DC Cir. 1981) ..........................................................................................................4, 11

27 Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017)............................................................................12
28

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1 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ....................................................................................................12
2
3 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ....................................................................................................................12
4

5

STATUTES

6 7 8 U.S.C. § 1373....................................................................................................................... passim

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. PRELIMINARY STATEMENT

2

Prior to the filing of this Reply, on April 25, 2017 this Court entered its Order Granting

3 the County of Santa Clara’s and City and County of San Francisco’s Motion to Enjoin Section

4 9(a) of Executive Order 13768 (the “Order”), in related cases City and County of San Francisco v.

5 Donald J. Trump et al., 17-cv-00485-WHO and County of Santa Clara v. Trump et al., 17-cv-

6 00574-WHO. In that Order, this Court issued a nationwide preliminary injunction, enjoining

7 enforcement of Section 9(a) of Executive Order 13768 (the “Executive Order”). In their

8 Opposition to the City of Richmond’s Motion for Preliminary Injunction, Defendants made

9 additional arguments, stating “certain decisions regarding implementation of the Executive Order

10 have been made.” Opp. at 8. As set forth below, these “decisions” regarding implementation of the

11 Executive Order do not diminish in any way the need for the nationwide preliminary injunction that

12 this Court has issued.

13 II. INTRODUCTION

14

In its opening brief, the City of Richmond demonstrated that the Court should enjoin

15 enforcement of the Executive Order. In violation of the United States Constitution, the

16 Executive Order seeks to force local police departments, such as the Richmond Police

17 Department, to enforce federal immigration law. The Executive Order is in direct violation of

18 the Constitution because it allows the Attorney General and Secretary of Homeland Security,

19 based upon their discretion, to withhold “Federal funds” from public entities that are “sanctuary

20 jurisdictions” who “willfully refuse” to comply with 8 U.S.C. § 1373, and further directs the

21 Attorney General to “take appropriate enforcement action against any entity that violates 8

22 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

23 enforcement of Federal law.”

24

Richmond showed that the Executive Order impermissibly directs executive agencies to

25 withhold appropriated funds, coerces the City to carry out federal immigration policies,

26 commandeers City resources, is unconstitutionally vague, and imposes penalties without due

27 process in violation of the Separation of Powers, the Spending Clause, the Due Process Clause of

28 the Fifth Amendment, and the Tenth Amendment. Richmond also showed that, due to the City’s

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2 policies regarding immigrants, the Executive Order poses an imminent threat that federal funding

3 will be withdrawn pursuant to the Executive Order.

4

On April 14, 2017, this Court held a hearing on the motions for preliminary injunction

5 brought in related cases by the County of Santa Clara and the City and County of San Francisco.

6 During oral argument, Defendants for the first time offered an “interpretation” of the Executive

7 Order that would narrow its scope. In stark contrast to the Executive Order’s broad

8 pronouncement that “jurisdictions that fail to comply with applicable Federal law do not receive

9 Federal funds” (Executive Order § 2(c)), counsel argued that the Executive Order was limited to

10 specific grants that already contained express conditions regarding 8 U.S.C. § 1373 that were

11 issued by either the Department of Homeland Security (“DHS”) or the Department of Justice

12 (“DOJ”). See Supplemental Request for Judicial Notice Ex. 1 (April 14, 2017 Transcript of

13 Proceedings) at 25:1-20. Counsel apparently offered this new interpretation under the canon of

14 constitutional avoidance. Id. at 41:6-12 (to “encourage this Court . . . to read [the Executive Order]

15 narrowly” and “to avoid reading constitutional problems into the Order where possible.”).1 But to

16 credit Defendants’ new interpretation, the Court must ignore the Executive Order’s plain text.

17

Section 2 of the Executive Order sets forth a policy of denying “all Federal funds” to

18 targeted jurisdictions. Section 9(a) contains an express exception for law-enforcement related

19 grants—the type of grants the Administration now claims are the only ones affected. Section 9(c)

20 directs the Office of Management and Budget to provide “information on all Federal grant money

21 that currently is received by any sanctuary jurisdiction”—this provision is pointless if the

22 Executive Order affects only a narrow subset of two agencies’ grants.

23

Defendants’ delay in discovering this “plain-text” interpretation further undermines the

24 argument. The Administration did not offer this interpretation until after the preliminary

25 injunction motions were briefed and the Administration had made public statements threatening

26 1 During the argument, Counsel conceded that the Executive Order could not retroactively

27

change the terms of a grant, could not unilaterally impose conditions without Congress’ approval (id. at 33:23-34:16), and that any conditions imposed by Congress would need to satisfy the nexus

28 requirement (id. at 34:17-35:11).

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2 to claw-back “federal funds” from sanctuary jurisdictions that fail to comply with applicable

3 Federal law.2 In its Order, this Court found that the Executive Order “is not readily susceptible to

4 the Government’s narrow interpretation.” Order at 14.

5

In opposing Richmond’s Motion for Preliminary Injunction, Defendants now appear to go

6 even further, stating that “certain decisions regarding implementation of the Executive Order have

7 been made.” Opp. at 8 (emphasis added). “Specifically, relying on the plain text of the Executive

8 Order and in the exercise of their ‘discretion’ to carry out the President’s directives in Section 9, the

9 Attorney General and the Secretary of Homeland Security have determined” that:

10

1. Section 9(a) will be applied only to “Federal grants” and not more broadly to other

11 types of federal financial assistance, such as reimbursements under mandatory entitlement

12 programs;

13

2. Section 9(a) will be applied only to grants administered by the Department of Justice

14 and the Department of Homeland Security, as reflected in that provision’s references to the Attorney

15 General and the Secretary and not to other federal officials or agencies;

16

3. Grant funding may be suspended, revoked, or terminated for non-compliance with

17 8 U.S.C. § 1373 only where compliance with this statute is included as a condition in the grant

18 documents; and

19

4. The Secretary’s designation of “sanctuary jurisdictions” under Section 9(a) will be

20 based on willful non-compliance with 8 U.S.C. § 1373 and will not be based solely on any refusal to

21 comply with requests by federal immigration officials to detain aliens.

22 Opp. at 8:9-22.

23

Defendants’ Opposition brief further states: “[a]dditionally, in the exercise of his authority

24 to ‘take appropriate enforcement action’ under Section 9(a), the Attorney General has determined

25 that any such action would take the form of civil litigation asserting that a jurisdiction’s law or

26 policy is preempted by federal law.” Id. at 8:23-25.

27

28

2 See RJN, Ex. 2 (Attorney General Jefferson Sessions announcing that the Justice Department will take “steps to claw-back any funds awarded to a jurisdiction that willfully violates 1373.”

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These assertions do not cure the facial unconstitutionality of the Executive Order.

2 Even if this new interpretation could be squared with the Executive Order’s text and structure,

3 Plaintiff would still require injunctive relief. To begin with, these assertions are not binding.

4 They appear only as argument in Defendants’ brief and are unsupported by any evidence.

5 Defendants did not submit a declaration by either the Attorney General or the Secretary of

6 Homeland Security to support these assertions.

7

In addition, even if Defendants had submitted supporting declarations, the Attorney

8 General and the Secretary of Homeland Security assertedly made these determinations in an

9 exercise of their ‘discretion’ to carry out the President’s directives. Accordingly, each asserted

10 limitation imposed upon the Executive Order remains subject to change, by both the Attorney

11 General and the Secretary of Homeland Security, pursuant to those same broad grants of

12 ‘discretion.’ See Cope v. Scott, 45 F.3d 445, 450 (DC Cir. 1995) (“flexibility is the essence of

13 discretion”); Warren v. United States Parole Com., 659 F.2d 183, 196 (DC Cir. 1981) (“the essence

14 of discretion is the absence of fixed rules”).

15

Moreover, reading the Executive Order as Defendants now propose would not avoid the

16 constitutional problems inherent in the Executive Order for at least four reasons. First, the Order

17 would remain unconstitutionally coercive. Hardly a day goes by where the Attorney General does

18 not threaten state and local governments with reprisal unless they change their local policies. Such

19 coercion—even with a lower dollar amount at stake—constitutes irreparable harm. See Texas v.

20 United States, 201 F. Supp. 3d 810, 835 (N.D. Tex. 2016) (granting injunction because new federal

21 policy placed the plaintiffs “in the position of either maintaining their current policies in the face of

22 the federal government’s view that they are violating the law, or changing them to comply with the

23 Guidelines and cede their authority over this issue”). Second, the separation of powers problem

24 would also remain: Defendants have pointed to no statute tying any federal funds to the new

25 condition they now seek to impose on federal spending. On the contrary, Congress has repeatedly

26 considered and rejected the very conditions the Attorney General has imposed by fiat. Third,

27 Defendants have failed to show how any of the affected funds are logically related to compliance

28 with Section 1373, as required by South Dakota v. Dole, 483 U.S. 203, 213 (1987). And fourth,

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1 nothing in Defendants’ current, nonbinding interpretation solves the Executive Order’s inherent

2 vagueness; if anything, Defendants’ evolving interpretation of the Order proves Plaintiff’s point.

3

In short, without preliminary relief such as this Court granted today in the related cases,

4 Richmond, and other jurisdictions, will continue to face imminent, irreparable harm.

5 III. ARGUMENT

6

A. RICHMOND WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF

INJUNCTIVE RELIEF 7

8

Defendants argue that Richmond cannot demonstrate imminent irreparable harm necessary

9 for emergency relief “because the Secretary and the Attorney General must take a series of steps

10 before Section 9 of Executive Order 13,768 could have any tangible effect on the City.” Opp. at

11 10. As set forth in Richmond’s opening brief, however, the Executive Order is already causing

12 irreparable harm; a finding this Court has already made as to San Francisco and Santa Clara.

13

Richmond showed that it faces imminent irreparable harm as a result of the uncertainty

14 created by Executive Order Section 9(a). Motion at 18-19. In response, Defendants ignore the

15 extraordinary magnitude of harm posed by the Executive Order to Richmond, especially to

16 Richmond’s most vulnerable residents, and assert that this is a risk that grant recipients always

17 face. Opp. at 15. As stated by Richmond’s City Manager, Bill Lindsay, withdrawal of federal

18 funds from programs that rely on federal grants would put the City and its residents in a crisis,

19 require a significant reduction in essential services, and endanger the health and safety of

20 Richmond’s residents. Lindsay Dec ¶ 12. Due to the Executive Order’s broad and indefinite

21 scope, Richmond does not know when federal funding cuts will take place, the extent of those

22 cuts, or whether the federal government will “claw-back” funds allocated to ongoing programs.

23 However, Richmond has already begun the process of adopting its annual budget for the fiscal

24 year beginning on July 1, 2017. Without preliminary relief and clarification regarding the legality

25 and effect of the Executive Order, the City is in an untenable financial situation, it does not know

26 if it will be reimbursed, and decisions that must be made while awaiting a final decision in this

27 case which could take multiple budget cycles, could cause a financial crisis. Lindsay Dec ¶ 10.

28 This financial uncertainty constitutes imminent irreparable harm. See Bassett v. Snyder, 951 F.

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1 Supp. 2d 939, 970-71 (E.D. Mich. 2013) (granting preliminary injunction in equal protection

2 challenge, finding irreparable harm based in part on the “financial uncertainty caused by Public

3 Act 297”) (citing Schalk v. Teledyne, Inc., 751 F. Supp. 1261 (W.D. Mich. 1990), aff’d, 948 F.2d

4 1290 (6th Cir. 1991)).3

5

Richmond also showed that the Executive Order is interfering with a core function of local

6 government, protecting the safety and welfare of its residents, by eroding trust in Richmond’s

7 large immigrant community. Motion at 18-19. Defendants argue that such harm is “abstract” and

8 not concrete. Not so for Police Chief Allwyn Brown and Richmond’s 100,000 residents. Police

9 Chief Brown’s declaration makes clear that “building community trust has resulted in a

10 significant reduction in crime and victimization” and the “Executive Order increases fear in the

11 immigrant community and makes it harder for RPD to fulfill its mission and protect the public.”

12 Motion at 6-7 (citing Brown Dec ¶¶ 5, 9 & Ex. 1; McLaughlin Dec ¶ 5). Defendants do not

13 contradict this evidence of irreparable harm.

14

Richmond further showed that attempting to comply with the Executive Order is not

15 viable because it is uncertain what actions the City must take to comply, and attempting to do so

16 would likely interfere with policy decisions that the Richmond City Council has made. Motion at

17 19 (citing Lindsay Dec ¶ 13). Defendants argue that the Executive Order “subjects the City not to

18 new law, but only to the bounds of existing law.” Opp. at 12. The plain language of the Executive

19 Order contradicts this assertion. Section 2(c) of the Executive Order broadly announces “the

20 policy of the executive branch to . . . [e]nsure that jurisdictions that fail to comply with applicable

21 Federal law do not receive Federal funds, except as mandated by law.” This clearly threatens all

22 “Federal funds” based on a failure to comply with “applicable Federal law.” Section 9(a) of the

23 Executive Order gives the Attorney General discretionary authority to “take appropriate

24 enforcement action against any entity . . . which has in effect a statute, policy, or practice that

25 3 Defendants’ reliance (Opp at 13) on Los Angeles Memorial Coliseum Commission v. National

26

Football League, 634 F.2d 1197 (9th Cir. 1980) is misguided. Coliseum did not address the issue of budget uncertainty. Coliseum held that unsupported speculation is insufficient to establish a

27

significant threat of injury under the Clayton Act. Id. at 1201. In contrast, Richmond submitted evidence in the form of declarations showing that the financial uncertainty created by the

28 Executive Order is inflicting irreparable harm on Richmond.

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1 prevents or hinders the enforcement of Federal law.” Section 9(a) also states that any jurisdiction

2 that “willfully refuse[s] to comply” with section 1373 are “not eligible to receive Federal grants.”

3 Notwithstanding Defendants’ new interpretation (Opp. at 16), there is nothing in the Executive

4 Order to suggest that it is limited to the terms and conditions in preexisting grant documents.4

5

The Executive Order changes the law. Without preliminary relief Richmond will continue

6 to be coerced to change its laws and policies under the threat of catastrophic harm to the safety

7 and welfare of the City and its residents, in violation of the Tenth Amendment of the Constitution.

8

Finally, Richmond explained that being forced to comply with an unconstitutional law

9 constitutes irreparable harm. Motion at 17 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

10 Cir. 2012) (“the deprivation of constitutional rights unquestionably constitutes irreparable

11 injury”); Elrod v. Burns, 427 U.S. 347, 373 (1976); Washington v. Trump, 847 F.3d 1151, 1169

12 (9th Cir. 2017)).5 Defendants argue there is no irreparable harm here because no “individual”

13 constitutional rights are implicated, only violations of “constitutional structures.” Opp. at 14.

14 However, the Executive Order impermissibly interferes with Richmond’s rights under the Fifth

15 and Tenth Amendments, as well as violating the Separation of Powers. These rights are not

16 merely “structural” and the Ninth Circuit has not recognized a hierarchy of constitutional

17 injuries.6 See American Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058–59

18

19 4 The assertion is also contradicted by the Attorney General’s statement on that: “The Department of Justice will also take all lawful steps to claw-back any funds awarded to a
20 jurisdiction that willfully violates Section 1373.” RJN, Ex. 2.

21 5 Defendants argue that Washington v. Trump “did not address whether the deprivation of constitutional rights alone constitutes irreparable harm” (Opp. at 17 n.6); however, the Court
22 specifically found reinstatement of the Executive Order at issue would result in “substantial injuries and even irreparable harms,” citing Melendres for the proposition that “the deprivation of
23 constitutional rights unquestionably constitutes irreparable injury.” 847 F.3d at 1169.

24

6 Defendants cite the district court opinion in American Trucking (Opp. at 17); however, the Ninth Circuit reversed the district court on this very ground, finding a likelihood of irreparable

25

harm. See American Trucking, 559 F.3d at 1059 (“Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute

26

irreparable harm.”) (citation omitted)). Defendants’ out-of-circuit district court cases regarding preemption are inapposite. E.g., N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d

27

363, 368 (S.D.N.Y. 2008) (finding Restaurant Association “would suffer some degree of irreparable injury with respect to its preemption claim if enforcement is not stayed pending

28 appeal”).

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1 (9th Cir. 2009) (irreparable harm in dormant Commerce Clause case where plaintiffs had to

2 choose between unconstitutional practices and monetary harm); Nelson v. NASA, 530 F.3d 865,

3 882 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134 (2011)); Citicorp Servs., Inc. v.

4 Gillespie, 712 F. Supp. 749, 753–54 (N.D. Cal. 1989) (presuming irreparable harm from an

5 alleged violation of the Commerce Clause).

6

B. RICHMOND’S CLAIMS ARE JUSTICIABLE

7

Defendants argue that Richmond cannot establish a likelihood of success on the merits

8 because its claims are non-justiciable under principles of ripeness and standing. Opp. at 18. As

9 discussed in its opening brief (Motion at 17-19), and above (Section II.A), the Executive Order is

10 already causing Richmond to suffer irreparable harm. Such injury “necessarily establish[ed] . . .

11 standing to seek injunctive relief.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281,

12 1286–87 (9th Cir. 2013); see also Coalition for Econ. Equity v. Wilson, 1996 WL 691962, at *2

13 n.4 (N.D. Cal. Nov. 27, 1996).

14

The Executive Order is also pressuring Richmond officials to change its laws and policies

15 under the threat of catastrophic harm to the safety and welfare of the City and its residents, in

16 violation of the Tenth Amendment of the Constitution. This alone constitutes injury sufficient to

17 satisfy the Article III case or controversy requirement. See Texas v. United States, 787 F.3d 733,

18 749 (5th Cir. 2015) (“being pressured to change state law constitutes an injury”).

19

In addition, a plaintiff need not wait until it actually suffers an injury to challenge a law

20 that poses a danger of injury. As stated by the Supreme Court in Babbitt v. UFW Nat’l Union,

21 442 U.S. 289 (1979):

22

A plaintiff who challenges a statute must demonstrate a realistic danger of

sustaining a direct injury as a result of the statute’s operation or enforcement.

23

O’Shea v. Littleton, 414 U.S. 488, 494 (1974). But “[one] does not have to await

the consummation of threatened injury to obtain preventive relief. If the injury is

24

certainly impending that is enough.”

25 Id. at 298 (citations omitted); see also MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 128-129

26 (2007) (“where threatened action by government is concerned, we do not require a plaintiff to

27 expose himself to liability before bringing suit to challenge the basis for the threat”); Susan B.

28 Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (“enforcement action is not a prerequisite

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1 to challenging the law”).

2

Richmond faces “a credible threat of prosecution” under the Executive Order. Susan B.

3 Anthony List, 134 S. Ct. at 2342 (citing Babbitt, 442 U.S. at 298). Longstanding Richmond

4 policies seek to “foster an atmosphere of trust and cooperation between the Richmond Police

5 Department and all persons, regardless of immigration status, residing in the City of Richmond.”

6 Brown Dec ¶ 6; Lindsay Dec, Exs. 1 (Ordinance No. 29-90) and 2 (Resolution No. 11-07).

7 Policy 428 of the RPD Policy Manual states it is “department policy, consistent with its

8 obligations under state and federal law, to adhere to the City of Richmond Ordinance 29-90” and

9 that “all individuals, regardless of their immigration status, must feel secure that contacting law

10 enforcement will not make them vulnerable to deportation.” Brown Dec ¶ 8 & Ex. 2. It is

11 precisely such policies that are being targeted by the Executive Order.

12

In fact, on April 21, 2017 the Department of Justice issued a press release that chastised

13 city officials in “California’s Bay Area” for “being . . . concerned with reassuring illegal

14 immigrants that [a] raid was unrelated to immigration . . . .” 7 The press release attached letters to

15 federal grant recipients in nine jurisdictions stating that failure to validate compliance with 8

16 U.S.C. § 1373 could result in “withholding of grant funds, suspension or termination of the grant,

17 ineligibility for future OJP grants or subgrants, or other action, as appropriate.” Id.

18

Because the Executive Order is already causing Richmond to suffer irreparable harm and

19 because Richmond faces a “credible threat” of being targeted for defunding under the Executive

20 Order, Richmond has established injury-in-fact for purposes of Article III standing and

21 constitutional ripeness. California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 n.2

22 (9th Cir. 2003) (“the constitutional component of ripeness is synonymous with the injury-in-fact

23 prong of the standing inquiry”).

24

Defendants also argue that prudential ripeness factors weigh against an injunction. Opp. at

25 20. Unlike Article III standing, prudential standing is discretionary. See Adam Bros. Farming,

26

27

7 See Department of Justice Press Release, Department of Justice Sends Letter To Nine Jurisdictions Requiring Proof of Compliance With 8 U.S.C. § 1373 (attaching letters); available

28 at: https://www.documentcloud.org/documents/3675286-DOJ-Sanctuary-City-Letters.html.

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1 Inc. v. Cty. of Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010). In Susan B. Anthony List, the

2 Supreme Court called into question the continued viability of the prudential ripeness doctrine:

3

To the extent respondents would have us deem petitioners’ claims nonjusticiable

on grounds that are ‘prudential,’ rather than constitutional, that request is in some

4

tension with our recent reaffirmation of the principle that a federal court’s

obligation to hear and decide cases within its jurisdiction is virtually unflagging. 5

6 134 S. Ct. at 2347 (internal punctuation omitted) (quoting Lexmark Int’l, Inc. v. Static Control

7 Components, Inc., 134 S. Ct. 1377, 1386 (2014)); see also U.S. v. JP Morgan Chase Bank Account

8 No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $446,377.36, 835 F.3d 1159, 1167 (9th

9 Cir. 2016) (“The prudential-standing addendum to the Article III standing inquiry has fallen into

10 disfavor in recent years.”).

11

Defendants argue that this case is not ripe because implementation of Section 9 ‘rests upon

12 [several] contingent future events—including clarification of some of its terms.” Opp. at 20; see

13 also id. at 21 (“it is unknown what could prompt the Secretary and Attorney General to take action

14 against any jurisdiction”). At the same time, Defendants contradict this assertion by arguing that

15 “the decisions recently made regarding implementation of the Executive Order greatly diminish

16 any likelihood of success on the merits.” Opp. at 21-22. Defendants cannot have it both ways.

17

In any event, Richmond satisfies the prudential ripeness factors. First, the issues in this

18 case are fit for judicial decision. The Executive Order is final and is being implemented.8 Indeed,

19 Defendants allege that “decisions regarding implementation of the Executive Order have been

20 made” by the Attorney General and the Secretary of Homeland Security. And Richmond’s

21 challenge primarily presents legal issues that “will not be clarified by further factual development.”

22 Id. (quotations omitted). Second, requiring Richmond to “proceed without knowing whether the

23 [Executive Order] is valid would impose a palpable and considerable hardship” on Richmond.

24 Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 581 (1985).

25

26

27

8 See, e.g., Department of Justice Press Release, Department of Justice Sends Letter To Nine Jurisdictions Requiring Proof of Compliance With 8 U.S.C. § 1373 (attaching letters); available

28 at: https://www.documentcloud.org/documents/3675286-DOJ-Sanctuary-City-Letters.html.

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1

Defendants’ additional, contradictory, argument that Defendants cannot show a

2 likelihood of success on the merits because of “the decisions recently made regarding

3 implementation of the Executive Order” fails for several reasons. First, these “determinations”

4 do not cure the facial unconstitutionality of the Executive Order. Second, these assertions are

5 not binding. The assertions appear as argument in Defendants’ brief but are not supported by

6 any evidence. Defendants did not submit a declaration by either the Attorney General or the

7 Secretary of Homeland Security to support these assertions.

8

Third, even if Defendants had submitted supporting declarations, the Attorney General

9 and the Secretary of Homeland Security assertedly made these determinations in an exercise of

10 their ‘discretion’ to carry out the President’s directives. Accordingly, each asserted limitation

11 imposed upon the Executive Order remains subject to change, by both the Attorney General and the

12 Secretary of Homeland Security, pursuant to those same broad grants of ‘discretion.’ Warren v.

13 United States Parole Com., F.2d 183, 196 (DC Cir. 1981) (“the essence of discretion is the absence

14 of fixed rules”).

15

Moreover, these “determinations” do not address the coercive effect of the Executive Order,

16 the nexus requirement under the spending clause, Separation of Powers issues, or the fact that the

17 Executive Order is unconstitutionally vague. These flaws continue to violate the Constitution.

18 Without preliminary relief, Richmond, and other jurisdictions, will continue to face a likelihood of

19 imminent, irreparable harm; a finding this Court has already made in issuing the Order.

20

C. THE BALANCE OF THE EQUITIES SUPPORTS A PRELIMINARY INJUNCTION

21

In its opening brief Richmond demonstrated that without preliminary relief, Defendants

22 would suffer immediate and tangible harm, whereas the government will suffer no harm if the

23 motion is granted. Motion at 19. Defendants respond that “compliance with the law” is in the

24 public interest, but there is no public interest in requiring compliance with an unconstitutional law.

25 To the contrary, where, as here, there is a likelihood of a constitutional violation, “[t]he public

26 interest and the balance of the equities favor prevent[ing] the violation of a party’s constitutional

27 rights.” Motion at 19 (citing Ariz. Dream Act Coal. v. Brewer, No. 15-15307, 2017 U.S. App.

28 LEXIS 1919, at *42 (9th Cir. Feb. 2, 2017); Melendres, 695 F.3d at 1002 (“it is always in the

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1 public interest to prevent the violation of a party’s constitutional rights”)). There is no public

2 interest in allowing an unconstitutional Executive Order to stand. And indeed, the Executive Order

3 will continue to cause significant harms—and to unconstitutionally coerce local jurisdictions—

4 until it is enjoined.

5

D. AN INJUNCTION MAY ISSUE AGAINST THE PRESIDENT OR INFERIOR OFFICERS

6

Defendants argue that even if an injunction is appropriate, it should not issue against the

7 President. It is well established that courts may review the constitutionality of executive action

8 and issue appropriate relief. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952);

9 Panama Ref. Co. v. Ryan, 293 U.S. 388, 433 (1935); Washington v. Trump, 2017 WL 462040

10 (W.D. Wash. Feb. 3, 2017). In Franklin v. Massachusetts, 505 U.S. 788, 803 (1992), the

11 Supreme Court directed that district courts should “evaluate[ ] whether injunctive relief against

12 the President [i]s available. . . .” Here, the Court has determined that the extraordinary remedy of

13 enjoining the President himself is not appropriate but is as to the other Defendants. Order at 49.

14

E. A NATIONWIDE INJUNCTION IS WARRANTED

15

Finally, Defendants ask the Court to limit any injunction to Richmond. Opp. at 23-24.

16 However, the Executive Order indisputably applies to every “sanctuary jurisdiction” in the

17 nation. This fact is underscored by letters sent by the Department of Justice, Office of Justice

18 Programs, on April 21, 2017 to federal grant recipients in Sacramento, Chicago, New Orleans,

19 Philadelphia, Las Vegas, Miami, Milwaukee, New York, and Chicago. The letters uniformly

20 state that failure to validate compliance with 8 U.S.C. § 1373 could result in “withholding of

21 grant funds, suspension or termination of the grant, ineligibility for future OJP grants or

22 subgrants, or other action, as appropriate.”9 Because the Executive Order applies nationwide, the

23 Court should issue a nationwide injunction. Califano v. Yamasaki, 442 U.S. 682, 702 (1979)

24 (“the scope of injunctive relief is dictated by the extent of the violation established, not by the

25 geographical extent of the plaintiff”); Washington v. Trump, 847 F.3d 1151, 1166-67 (9th Cir.

26

27

9 See Department of Justice Press Release, Department of Justice Sends Letter To Nine Jurisdictions Requiring Proof of Compliance With 8 U.S.C. § 1373 (attaching letters); available

28 at: https://www.documentcloud.org/documents/3675286-DOJ-Sanctuary-City-Letters.html.

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CITY OF RICHMOND’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

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1 2017) (affirming nationwide injunction against travel ban executive order); Texas v. United

2 States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271

3 (2016) (affirming nationwide injunction of presidential immigration directive); Bresgal v. Brock,

4 843 F.2d 1163, 1171 (9th Cir. 1987) (“district court has the power to order nationwide relief”).

5 Here, the Court has determined that ‘[g]iven the nationwide scope of the Order, and its apparent

6 constitutional flaws, a nationwide injunction is appropriate.” Order at 48.

7

F.

DEFENDANTS’ “DETERMINATIONS” ARE NOT BINDING AND DO NOT CURE THE

EXECUTIVE ORDER’S UNCONSTITUTIONALITY 8

9

In opposing Richmond’s Motion for Preliminary Injunction, Defendants state, for the first

10 time, that “certain decisions regarding implementation of the Executive Order have been made.”

11 Opp. at 8.

12

1. Section 9(a) will be applied only to “Federal grants” and not more broadly to other

13 types of federal financial assistance, such as reimbursements under mandatory entitlement programs;

14

2. Section 9(a) will be applied only to grants administered by the Department of Justice

15 and the Department of Homeland Security;

16

3. grant funding may be suspended, revoked, or terminated for non-compliance with

17 8 U.S.C. § 1373 only where compliance with this statute is included as a condition in the grant

18 documents; and

19

4. the Secretary’s designation of “sanctuary jurisdictions” under Section 9(a) will be

20 based on willful non-compliance with 8 U.S.C. § 1373 and will not be based solely on any refusal to

21 comply with requests by federal immigration officials to detain aliens.

22 Opp. at 8:9-22.

23

Defendants’ Opposition brief further states: “[a]dditionally, in the exercise of his authority

24 to ‘take appropriate enforcement action’ under Section 9(a), the Attorney General has determined

25 that any such action would take the form of civil litigation asserting that a jurisdiction’s law or

26 policy is preempted by federal law.” Opp. at 8:23-25.

27

As discussed supra, these assertions do not cure the facial unconstitutionality of the

28 Executive Order. The “determinations” do not address the coercive effect of the Executive Order,

Law Offices

CITY OF RICHMOND’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION;

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1 the nexus requirement under the spending clause, Separation of Powers issues, or the fact that the

2 Executive Order is unconstitutionally vague. These flaws continue to violate the Constitution.

3

Significantly, these “determinations” are not binding. Defendants did not submit a

4 declaration by either the Attorney General or the Secretary of Homeland Security to support

5 these assertions. Even if Defendants had submitted supporting declarations, the Attorney General

6 and the Secretary of Homeland Security assertedly made these determinations in an exercise of

7 their ‘discretion’ to carry out the President’s directives. Accordingly, each asserted limitation

8 imposed upon the Executive Order remains subject to change, by both the Attorney General and the

9 Secretary of Homeland Security, pursuant to those same broad grants of ‘discretion.’

10

Without preliminary relief, Richmond, and other jurisdictions, will continue to face

11 imminent, irreparable harm. Accordingly, the Motion should be granted. See Rodriguez v.

12 Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (affirming preliminary injunction, noting the

13 government “cannot suffer harm from an injunction that merely ends an unlawful practice or

14 reads a statute as required to avoid constitutional concerns.”).

15 IV. CONCLUSION

16

For the foregoing reasons, Richmond had demonstrated that a Preliminary Injunction is

17 appropriate and necessary.

18 19
Dated: April 25, 2017 20 21 22
Dated: April 25, 2017 23 24 25

Respectfully submitted,
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Nancy L. Fineman NANCY L. FINEMAN Attorneys for Plaintiff
CITY OF RICHMOND
By: /s/ Bruce R. Goodmiller BRUCE REED GOODMILLER Attorneys for Plaintiff

26

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1

ATTESTATION OF FILING

2

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

3 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

4 hereto.

5

/s/ Nancy L. Fineman

6

NANCY L. FINEMAN

7

Attorney for Plaintiff

8

9

10

11

12

13

14

15

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17

18

19

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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 CITY OF RICHMOND,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 17-cv-01535-WHO ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AS MOOT
Dkt. No. 12, 21

12

The City of Richmond moves for a nationwide preliminary injunction “(1) prohibiting

13 Defendants from enforcing Section 9(a) of Executive Order 13768 . . . (2) prohibiting Defendants

14 from taking any action pursuant to the Executive Order that would withhold or ‘claw-back’ federal

15 funds appropriated or allocated by Congress; and (3) prohibiting Defendants from taking any

16 action pursuant to the Executive Order that would declare or render any jurisdiction ineligible for

17 federal funds.” Motion for Preliminary Injunction (“Mot.”) at 1 (Dkt. No. 12).

18

On April 25, 2017, I granted similar motions in two related cases, City and County of San

19 Francisco v. Trump, No. 17-cv-485-WHO, and County of Santa Clara v. Trump, No. 17-cv-574-

20 WHO and issued a nationwide injunction enjoining enforcement of Section 9(a) of Executive

21 Order 13768. See (SC Dkt. No. 98); (SF Dkt. No. 82). In light of this nationwide injunction,

22 Richmond’s motion is DENIED AS MOOT. Similarly, the Anti-Defamation League’s motion for

23 leave to file an amicus brief in support of Richmond’s motion is DENIED AS MOOT.

24

IT IS SO ORDERED.

25 Dated: May 22, 2017

26

27

28

William H. Orrick United States District Judge

 
 Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 1 of 30

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; JOHN F. KELLY, Secretary of
Homeland Security; JEFFERSON B.

12 SESSIONS, III, Attorney General of

the United States; and UNITED STATES
13 OF AMERICA

14

IN THE UNITED STATES DISTRICT COURT

15
FOR THE NORTHERN DISTRICT OF CALIFORNIA
16
SAN FRANCISCO DIVISION
17

18 CITY OF RICHMOND,

19

Plaintiff,

v.

20
DONALD J. TRUMP, et al.,
21

22

Defendants.

23

No. 3:17-cv-01535-WHO

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time:

July 19, 2017 2:00 p.m.

24

25

26

27

28

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 2 of 30

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 NOTICE OF MOTION AND MOTION TO DISMISS ................................................................. 1

5 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

6 INTRODUCTION .......................................................................................................................... 1

7 ISSUES PRESENTED.................................................................................................................... 3

8 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 4

9

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 4

10

II. Executive Order 13,768 .......................................................................................... 6

11

III. The AG Memorandum ............................................................................................ 7

12 PROCEDURAL BACKGROUND ................................................................................................. 8

13 ARGUMENT .................................................................................................................................. 9

14

I. Plaintiff Lacks Standing and Its Claims Are Unripe............................................. 11

15

II. Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and

16

Does Not Directly Affect the Plaintiff .................................................................. 11

17

III. Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, as Elucidated by the AG Memorandum.................................... 13

18

A. Plaintiff Fails to State a Viable Claim

19

under the Tenth Amendment..................................................................... 13

20

B. Plaintiff Fails to State a Viable Claim under the Separation of Powers ................................................................ 14

21

C. Plaintiff Fails to State a Viable Claim

22

under the Spending Clause........................................................................ 16

23

D. Plaintiff Fails to State a Viable Claim under the Fourth Amendment ................................................................... 20

24

E. Plaintiff Fails to State a Viable Claim of Unconstitutional

25

Vagueness under the Due Process Clause................................................. 20

26

IV. Plaintiff Fails to State a Viable Claim for Declaratory Relief Regarding Its Compliance with Section 1373....................................................... 22

27 CONCLUSION ............................................................................................................................. 23

28

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1

TABLE OF AUTHORITIES

2 3 CONSTITUION 4 U.S. Const. Art. I, § 8, cl. 1...................................................................................................... 14, 16

5 U.S. Const., Art. III, § 2 ................................................................................................................... 9

6
CASES
7
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................. 11
8
Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR,
9 2012 WL 5915124 (N.D. Cal. Nov. 26, 2012) ............................................................................ 2

10 Alexander v. Sandoval, 532 U.S. 275 (2001) ................................................................................. 22

11 Am. Fed’n of State, Cty. & Mun. Employees v. Scott,
717 F.3d 851 (11th Cir. 2013) ............................................................................................. 13, 16
12
Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. Feb. 2, 2017) .................................... 4
13
Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ..................................................... 4
14
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 9
15
Ashcroft v. Mattis, 431 U.S. 171 (1977) ........................................................................................ 23
16
Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 18
17
Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ...................... 8
18
Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156 (9th Cir. 2016) ............................. 9
19
Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ............... 11
20
Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO,
21 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ......................................................................... 15, 17

22 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989)...................................................... 15

23 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 14

24 Golden v. Zwickler, 394 U.S. 103 (1969) ...................................................................................... 23

25 Harris Cty. Texas v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015) .......................................... 22

26 Humanitarian Law Project v. U.S. Treasury Dep’t,

578 F.3d 1133 (9th Cir. 2009) ............................................................................................. 10, 21
27

In re Apple iPhone Antitrust Litig., 846 F.3d 313 (9th Cir. 2017)................................................... 9

28

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1
In re ATM Fee Antitrust Litig., No. C 04-2676 CRB, 2010 WL 2557519
2 (N.D. Cal. June 21, 2010) ............................................................................................................ 9

3 Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979).......................... 11

4 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................... 9

5 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 18

6 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988)........................................................ 2

7 Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427

(N.D. Cal. Oct. 10, 2012)........................................................................................................... 22

8

N.Y. v. United States, 505 U.S. 144 (1992) ........................................................................ 10, 14, 18

9

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ......................................... 10, 14, 19

10

Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 9

11

NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989)............................................................................. 13, 16

12

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) .................................................. 16

13

Renne v. Geary, 501 U.S. 312 (1991) .............................................................................................. 9

14

Robinson v. United States, 586 F.3d 683 (9th Cir. 2009) ................................................................ 9

15

SEIU, Local 82 v. D.C., 608 F. Supp. 1434 (D.D.C. 1985) .......................................................... 21

16

Skilling v. United States, 561 U.S. 358 (2010) ............................................................................. 21

17

South Dakota v. Dole, 483 U.S. 203 (1987) ........................................................................... passim

18

State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997)........................................................ 19

19

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)............................................................ 9

20

Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997) .............................................................................. 22

21

Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995) ............................ 7

22

Tucson Woman's Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)..................................................... 21

23

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) .............................................................. 14

24

United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ................................................... 12

25

United States v. Salerno, 481 U.S. 739 (1987) ....................................................................... passim

26

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 13

27

White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998) .............................................................. 22

28

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1
Whitmore v. Arkansas, 495 U.S. 149 (1990) ................................................................................. 11
2

3 STATUTES

4 8 U.S.C. §§ 1101 et seq.................................................................................................................... 4

5 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 7

6 8 U.S.C. § 1357(g)(1)....................................................................................................................... 5

7 8 U.S.C. § 1357(g)(10)(B) ............................................................................................................... 5

8 8 U.S.C. § 1373 ....................................................................................................................... passim

9 28 U.S.C. § 512 ............................................................................................................................ 2, 7

10 28 U.S.C. § 1331 ............................................................................................................................ 22

11 28 U.S.C. § 1346 ............................................................................................................................ 22

12 28 U.S.C. §§ 2201-2202................................................................................................................. 22

13 42 U.S.C. § 3712(a)(6) ................................................................................................................... 15

14 42 U.S.C. § 3752(a)(5)(D) ............................................................................................................. 15

15 Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) ............................................. 5

16 17 REGULATIONS 18 28 C.F.R. § 0.5(c)......................................................................................................................... 2, 7

19 EXECUTIVE ORDERS 20 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) ..................................................................... 4 21 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) ..................................................................... 4 22 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim 23

24 OTHER AUTHORITIES

25 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim

26 Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan,
Acting Comm’r, U.S. Customs and Border Protection, et al.,
27 Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)............... 5

28

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1 Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,
Assistant Att’y Gen., Office of Justice Programs, Department of Justice
2 Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by
Grant Recipients (May 31, 2016) ................................................................................................ 5
3
Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the
4 Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000) ........................................... 7

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on Wednesday, July 19, 2017, at 2:00 p.m., or as soon

3 thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2,

4 17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California,

5 the defendants will move, and hereby do move, for dismissal of this action under Rules 12(b)(1)

6 and 12(b)(6) of the Federal Rules of Civil Procedure. This motion is based on the following

7 Memorandum of Points and Authorities, the evidence and records on file in this action, and any

8 other written or oral evidence or argument that may be presented at or before the time this motion

9 is heard by the Court.

10

MEMORANDUM OF POINTS AND AUTHORITIES

11

INTRODUCTION

12

On January 25, 2017, the President signed Executive Order 13,768 for the declared

13 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to

14 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.

15 Reg. 8,799 (Jan. 30, 2017). Section 9 of the Order, which is the subject of this litigation, directs

16 the Attorney General and the Secretary of Homeland Security (“Secretary”), “in their discretion

17 and to the extent consistent with law, [to] ensure that jurisdictions that willfully refuse to comply

18 with 8 U.S.C. 1373 . . . are not eligible to receive Federal grants, except as deemed necessary for

19 law enforcement purposes . . . .” Id. § 9(a). Section 9 also instructs the Attorney General to take

20 “appropriate enforcement action” against any entity that violates Section 1373 or has a statute or

21 policy that “prevents or hinders the enforcement of Federal law.” Id. Section 1373 provides,

22 among other things, that no government entity or official may prohibit or restrict the sending or

23 receiving of information regarding the citizenship or immigration status of any individual to

24 federal immigration authorities. 8 U.S.C. § 1373(a).

25

The Order is a presidential directive, directed to the Attorney General, the Secretary, and

26 other federal officials. It does not purport to alter the existing requirements of Section 1373 (or

27 any other federal law), to impose new burdens on state or local jurisdictions, or to expand the

28 legal authority of the Attorney General or the Secretary. Rather, it simply announces the policy

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1 of the Executive Branch and directs the Attorney General and the Secretary, in their discretion

2 and consistent with their existing legal authority, to ensure that jurisdictions that willfully refuse

3 to comply with Section 1373 not be eligible to receive federal grants and to take enforcement

4 action as appropriate. See Exec. Order No. 13,768, § 9(a).

5

The Attorney General, in the exercise of his discretion under Section 9(a) of the Order and

6 his overall responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R.

7 § 0.5(c), has issued authoritative, binding guidance regarding the implementation of Section 9(a).

8 See Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) (Attachment

9 1 hereto) (hereinafter AG Mem.).1 Among other things, the AG Memorandum provides (1) that

10 the grant eligibility provision in Section 9(a) applies “solely to federal grants administered by the

11 Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources

12 of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions

13 applying for certain DOJ-administered grants “to certify their compliance with federal law,

14 including 8 U.S.C. § 1373,” (3) that the certification will be required only where the agency is

15 “statutorily authorized to impose such a condition,” (4) that “[a]ll grantees will receive notice of

16 their obligation to comply with section 1373,” and (5) that only “jurisdiction[s] that fail[] to

17 certify compliance with section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2.

18

The AG Memorandum further establishes that Richmond lacks standing in this case and

19 that its claims are unripe; thus, all of plaintiff’s claims herein should be dismissed for lack of

20 jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Further, to the extent

21 the Court addresses plaintiff’s individual claims, each claim must be dismissed under either Rule

22

23

1 This Court can freely consider the AG Memorandum on this motion to dismiss without

24

affecting the nature of the motion. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“[I]t is proper for the district court to take judicial notice of matters of public record

25 outside the pleadings and consider them for purposes of the motion to dismiss.”) (internal
quotation marks omitted); Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR, 2012 WL

26 5915124, at *2 (N.D. Cal. Nov. 26, 2012) (stating that court “may consider matter that is properly

the subject of judicial notice, such as court filings and other public records, without converting a
27 motion to dismiss into one for summary judgment”).

28

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1 12(b)(6), particularly in light of the AG Memorandum. Given that the grant eligibility provision

2 in Section 9(a) will apply only to certain grants administered by DOJ and DHS and only where

3 the imposition of such a condition is statutorily authorized, and given that grantees will be asked

4 to certify their compliance with 8 U.S.C. § 1373 as part of the grant process, the City cannot state

5 viable claims that the grant eligibility provision violates the Tenth Amendment, the Separation of

6 Powers, or the Spending Clause (Doc. 1 ¶¶ 88-101). Similarly, the AG Memorandum makes

7 clear that Section 9(a) violates neither the Fourth Amendment nor the vagueness principles of the

8 Due Process Clause (id. ¶¶ 102-113). This is especially true given that these claims are facial

9 challenges to an Executive Order, and plaintiff cannot show that “no set of circumstances exists

10 under which the [Order] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

11

And finally, Richmond has also failed to state a claim on which relief can be granted

12 regarding its compliance with Section 1373 (Doc. 1 ¶¶ 114-117) because the City identifies no

13 cause of action authorizing such relief and a ruling on that subject would constitute a prohibited

14 advisory opinion.

15

Accordingly, the Court should dismiss plaintiff’s Complaint for failure to state a claim on

16 which relief can be granted and for lack of subject matter jurisdiction.

17

ISSUES PRESENTED

18

1. Whether the plaintiff has established its standing and the ripeness of its claims.

19

2. Whether the plaintiff can challenge an Executive Order that constitutes only an internal

20 Executive Branch directive and has no direct effect on the plaintiff.

21

3. Whether the plaintiff has stated a viable claim that Section 9(a) of the Executive Order

22 violates the Tenth Amendment.

23

4. Whether the plaintiff has stated a viable claim that Section 9(a) of the Executive Order

24 violates the Separation of Powers.

25

5. Whether the plaintiff has stated a viable claim that Section 9(a) of the Executive Order

26 exceeds the Spending Power.

27

28

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1

6. Whether the plaintiff has stated a viable claim that Section 9(a) of the Executive Order

2 violates the Fourth Amendment.

3

7. Whether the plaintiff has stated a viable claim that Section 9(a) of the Executive Order

4 is unconstitutionally vague in violation of the Due Process Clause.

5

8. Whether the plaintiff has stated a viable claim for declaratory relief regarding its

6 compliance with 8 U.S.C. § 1373.

7

STATUTORY AND ADMINISTRATIVE BACKGROUND

8 I.

Broad Executive Discretion in Enforcement of Immigration Law

9

“The Government of the United States has broad, undoubted power over the subject of

10 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

11 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

12 Congress granted the Executive Branch significant authority to control the entry, movement, and

13 other conduct of foreign nationals in the United States. Under the INA, the Department of Home-

14 land Security, the Department of Justice, and other agencies of the Executive Branch administer

15 and enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise

16 considerable executive discretion to direct enforcement pursuant to federal policy objectives. See

17 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. Feb. 2, 2017) (“By necessity, the

18 federal statutory and regulatory scheme, as well as federal case law, vest the Executive with very

19 broad discretion to determine enforcement priorities.”). Several Presidents have exercised this

20 discretion by Executive Order, and they have done so in differing ways, reflecting their individual

21 judgments as to how best to take care that the laws of the United States be faithfully executed.

22 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) (“Suspending Entry Into the

23 United States of Persons Contributing to the Situation in Libya”); Exec. Order No. 13,608, 77

24 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of Foreign Sanctions Evaders

25 With Respect to Iran and Syria”). The Secretary has also consistently exercised similar executive

26 discretion in the enforcement of federal immigration law. See, e.g., Mem. from John Kelly, Sec’y

27

28

4

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1 of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et

2 al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017).2

3

The INA contains a number of provisions regarding the involvement of state and local

4 authorities in the enforcement of immigration law. For example, Section 287(g) of the INA

5 authorizes the Secretary to enter into written agreements with a state or local government under

6 which officers of such government may “perform a function of an immigration officer in relation

7 to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

8 § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification,

9 apprehension, detention, or removal of aliens not lawfully present in the United States,” even

10 without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C.

11 § 1373, ensures the sharing of information between federal and state actors:

12

Notwithstanding any other provision of Federal, State, or local law, a Federal,

13

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

14

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.
15
Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996).

16
Section 1373 also proscribes prohibiting or restricting any government entity from “maintaining”

17
information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).

18
Well before the issuance of Executive Order 13,768, the compliance of state and local

19
governments with Section 1373 has been of interest to federal agencies because such govern-

20
ments are recipients of federal grants. For example, the Inspector General of the Department of

21
Justice issued a memorandum on May 31, 2016, as plaintiff notes (Doc. 1 ¶ 31), describing a

22
concern that several state and local governments receiving federal grants were not complying

23
with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,

24
Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of

25
Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

26

2 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/
27 publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-

28 Interest.pdf.

5

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1 https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that some

2 applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the

3 report nevertheless noted that “no one at DHS . . . has made a formal legal determination whether

4 certain state and local laws or policies violate Section 1373, and we are unaware of any

5 Department of Justice decision in that regard.” Id. at 8 n.12.

6 II. Executive Order 13,768

7

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

8 the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

9 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

10 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

11 immigration law within the United States, and it instructs certain federal officials to use “all

12 lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

13

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

14 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

15 Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future

16 conduct, including instructions to promulgate certain regulations within one year, to take “all

17 appropriate action” to hire additional immigration officers, to seek agreements with state and

18 local officials under Section 287(g) of the INA (referred to above), to develop a program to

19 ensure adequate prosecution of criminal immigration offenses, and to establish an office to

20 provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11,

21 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take

22 these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14,

23 17, 18(b), 82 Fed. Reg. at 8,799-802.

24

Section 9 of the Executive Order provides that “[i]t is the policy of the executive branch to

25 ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

26 comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

27

28

6

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 13 of 30

1

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

Security], in their discretion and to the extent consistent with law, shall ensure that

2

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

3

dictions) are not eligible to receive Federal grants, except as deemed necessary for

law enforcement purposes by the Attorney General or the Secretary. The Secre-

4

tary has the authority to designate, in his discretion and to the extent consistent

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall

5

take appropriate enforcement action against any entity that violates 8 U.S.C. 1373,

6

or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

7 Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of the Office of

8 Management and Budget to “obtain and provide relevant and responsive information on all

9 Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed.

10 Reg. at 8,801.

11 III. The AG Memorandum

12

On May 22, 2017, the Attorney General issued a Memorandum regarding the

13 implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a

14 statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and

15 to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). Also, although the

16 Secretary principally administers the immigration laws, the INA provides that “the determination

17 and ruling by the Attorney General with respect to all questions of law shall be controlling.”

18 8 U.S.C. § 1103(c)(1). By longstanding tradition and practice, the Attorney General’s legal

19 opinions are treated as authoritative by the heads of executive agencies. See, e.g., Tenaska

20 Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss,

21 Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52

22 Admin. L. Rev. 1303, 1319-20 (2000).

23

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

24 interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the Order

25 does not “purport to expand the existing statutory or constitutional authority of the Attorney

26 General and the Secretary of Homeland Security in any respect,” but rather instructs those

27 officials to take certain action, “to the extent consistent with the law.” AG Mem. at 2; see Bldg.

28

7

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1 & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the

2 President is merely wielding his “supervisory authority over the Executive Branch” where he

3 “directs his subordinates” to take certain action “but only ‘[t]o the extent permitted by law’”).

4 The AG Memorandum further clarifies that the grant eligibility provision in Section 9(a) is

5 limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants requiring the

6 applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as a condition

7 for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify compliance

8 with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant eligibility

9 provision. Id. In other words, the provision applies only where an applicant or grant recipient

10 has had the choice either to certify compliance with 8 U.S.C. § 1373 as an express condition of

11 eligibility to participate in a certain grant program, or to refuse to certify compliance and thereby

12 render itself ineligible to participate in the program. The AG Memorandum also makes clear that,

13 with respect to Section 1373 compliance conditions, DOJ and DHS may impose such conditions

14 only pursuant to the exercise of “existing statutory or constitutional authority,” and only where

15 “grantees will receive notice of their obligation to comply with section 1373.” AG Mem. at 2.

16 Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of Homeland

17 Security, [he has] determined that, for purposes of enforcing the Executive Order, the term

18 ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8

19 U.S.C. 1373.’” Id.

20

PROCEDURAL BACKGROUND

21

Richmond filed this action on March 21, 2017 (Doc. 1). Plaintiff filed a motion for

22 preliminary injunction against the implementation of Section 9 of the Executive Order (Doc. 12),

23 which the Court denied as moot after granting similar motions in the related cases of City &

24 County of San Francisco v. Trump, No. 17-cv-00485-WHO, and County of Santa Clara v. Trump,

25 No. 17-cv-00574-WHO, on April 25, 2017 (Doc. 25). Defendants filed a motion for reconsider-

26 ation or clarification of the preliminary injunction on May 23, 2017 (No. 17-cv-00485-WHO

27 Doc. 107), which remains pending.

28

8

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 15 of 30

1

ARGUMENT

2

A claim should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure

3 if the court lacks subject matter jurisdiction to consider it. The jurisdiction of the federal courts is

4 limited to “Cases” and “Controversies.” U.S. Const., Art. III, § 2. “Jurisdiction is power to

5 declare the law, and when it ceases to exist, the only function remaining to the court is that of

6 announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

7 83, 94 (1998). Courts should “presume that [they] lack jurisdiction unless the contrary appears

8 affirmatively from the record,” Renne v. Geary, 501 U.S. 312, 316 (1991), and “the party

9 asserting subject matter jurisdiction has the burden of proving its existence,” Robinson v. United

10 States, 586 F.3d 683, 685 (9th Cir. 2009); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

11 (1992).

12

Additionally, a claim should be dismissed under Rule 12(b)(6) if it “fail[s] to state a claim

13 upon which relief can be granted.” A motion under Rule 12(b)(6) “tests the legal sufficiency” of

14 a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On such a motion, the district

15 court accepts all “plausible,” “well-pleaded” factual allegations as true, In re Apple iPhone

16 Antitrust Litig., 846 F.3d 313, 315 (9th Cir. 2017); Caltex Plastics, Inc. v. Lockheed Martin

17 Corp., 824 F.3d 1156, 1159 (9th Cir. 2016), but need not accept “a legal conclusion couched as a

18 factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint is subject to

19 dismissal if it fails to “state a claim to relief that is plausible on its face.” Id. “A complaint may

20 be dismissed for failure to state a claim where the factual allegations do not raise the right to

21 relief above the speculative level.” In re ATM Fee Antitrust Litig., No. C 04-2676 CRB, 2010

22 WL 2557519, at *4 (N.D. Cal. June 21, 2010).

23

Plaintiff’s Complaint contains six claims: The first through fourth Claims for Relief

24 allege that the Executive Order, especially Section 9(a),3 violates the Tenth Amendment, the

25 constitutional Separation of Powers, the Spending Clause, and the Fourth Amendment, and that it

26

3 Although Richmond purports to direct its claims against the Executive Order generally
27 and to seek relief regarding “the Executive Order,” the only language of the Order described in

28

the Complaint relates to the grant eligibility provision in Section 9(a). 9

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 16 of 30

1 is unconstitutionally vague in violation of the Due Process Clause. The Fifth Claim for Relief

2 alleges that Richmond’s policies comply with 8 U.S.C. § 1373. All of these claims should be

3 dismissed for lack of standing and ripeness under Rule 12(b)(1), as made even clearer by the AG

4 Memorandum. Also, all of plaintiff’s claims against the Executive Order should be dismissed

5 under Rule 12(b)(6) because the Order is only an internal Executive Branch directive with no

6 direct effect on the City.

7

Assuming the Court reaches the merits, all of plaintiff’s claims should be dismissed for

8 failure to state a claim on which relief can be granted under Rule 12(b)(6). In relation to the

9 Tenth Amendment, Separation of Powers, and Spending Clause claims, the AG Memorandum

10 makes clear that the grant eligibility provision in Section 9 will not be used to “compel the States

11 to enact or administer a federal regulatory program” or to “act on the Federal Government’s

12 behalf,” see N.Y. v. United States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v.

13 Sebelius, 132 S. Ct. 2566, 2627 (2012); that the grant eligibility provision will be applied only

14 where authorized by statute; and that the limitations on the spending power described in South

15 Dakota v. Dole, 483 U.S. 203 (1987), will be followed.

16

In relation to plaintiff’s Fourth Amendment claim, the AG Memorandum says nothing

17 about detentions, but specifies that jurisdictions applying for certain grants will have to certify

18 compliance with 8 U.S.C. § 1373, which, the Memorandum says, prevents state and local

19 jurisdictions from prohibiting or restricting the provision of certain information to federal

20 immigration officials.

21

Further, Section 9(a), as elucidated by the AG Memorandum, easily meets the judicial

22 standards for vagueness claims, especially in relation to a facial challenge, under which the

23 plaintiff must show that the enactment is “impermissibly vague in all its applications.”

24 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (internal

25 quotation marks omitted).

26

Finally, in relation to plaintiff’s Fifth Claim for Relief, Section 1373 contains no right of

27 action to seek a declaration regarding a jurisdiction’s compliance with the statute, and plaintiff

28

10

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 17 of 30

1 has cited no other source for such a cause of action. Also, since the Secretary of Homeland

2 Security has not designated or threatened to designate Richmond as a “sanctuary jurisdiction”

3 under Section 9(a), any judicial ruling on the City’s compliance with Section 1373 would be an

4 advisory opinion.

5 I. Plaintiff Lacks Standing and Its Claims Are Unripe

6

Article III of the Constitution requires that a plaintiff have standing and that its claims be

7 ripe for judicial consideration. To have standing, the plaintiff must show that it has suffered

8 “concrete,” “palpable” injury, see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), and, for the

9 claims to be ripe, the challenged enactment must have been “formalized and its effects felt in a

10 concrete way.” See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). As discussed in

11 Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order

12 of April 25, 2017, in the related case of City & County of San Francisco v. Trump, No. 17-cv-

13 00485-WHO, the AG Memorandum makes even clearer that these requirements are not satisfied

14 here and that, therefore, all of plaintiff’s claims must be dismissed for lack of standing and

15 ripeness (No. 17-cv-00485-WHO, Doc. 107 at 8-12).

16 II. 17

Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Directly Affect the Plaintiff

18

The Court should dismiss all of Richmond’s challenges to Executive Order 13,768 – the

19 first through fourth Claims for Relief in the Complaint – because the Order only directs internal

20 Executive Branch policy and does not directly affect the plaintiff. Courts in this Circuit have

21 distinguished between Executive Orders that only “implement policy as a product of executive

22 authority,” and those that effectuate an authority explicitly vested in the President through an act

23 of Congress. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal.

24 May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid Soc’y of

25 Alameda County v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979).

26

The former type of Executive Order does not carry the independent force of law; rather, it

27 serves only as an internal Executive Branch directive. The Executive Order in this action falls

28

11

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 18 of 30

1 into that category. This is even clearer in light of the AG Memorandum, which indicates that the

2 challenged provisions of the Order are directives to the Attorney General and the Secretary of

3 Homeland Security regarding their exercise of existing statutory and constitutional authority. AG

4 Mem. at 1-2. Because the Order is an internal Executive Branch policy directive, Richmond

5 cannot plead viable challenges against it. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011

6 (E.D. Cal. 2015) (rejecting a Tenth Amendment challenge to a statement of agency policy on the

7 grounds that a policy statement “is a very different creature from a statute” in that it does not bind

8 States as would a statute).

9

Moreover, consistent with its internal nature, the Executive Order does not directly affect

10 the plaintiff. It does not impose conditions on federal grants or any requirements on state or local

11 jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this

12 Administration,” AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws are

13 faithfully executed.” Exec. Order 13,768 at 1. It directs the appropriate executive officials to

14 prioritize means for achieving that priority.

15

At no point, however, does the Order purport to directly impose affirmative obligations on

16 state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the

17 Order’s directives “to the extent permitted by law.” Id. § 9(a). Consistent with that directive, the

18 Executive Order “does not call for the imposition of grant conditions that would violate any

19 applicable constitutional or statutory limitation . . . [n]or does the Executive Order purport to

20 expand the existing statutory or constitutional authority of the Attorney General and the Secretary

21 . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or the Attorney General

22 determines to impose obligations on a grant program pursuant to the directives contained the

23 Order, such as certification of compliance with 8 U.S.C. § 1373, that obligation may be imposed

24 only where existing legal authority allows, and only where grantees are given “notice of their

25 obligation[s].” Id. at 2.

26

27

28

12

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 19 of 30

1 III. Plaintiff Fails to State Any Viable Claim Regarding the

Executive Order, as Elucidated by the AG Memorandum
2

Especially as elucidated by the AG Memorandum, Section 9(a) of the Order is consistent
3

with the Tenth Amendment, the Separation of Powers, the Spending Clause, and the Fourth
4

Amendment, and it is not unconstitutionally vague under the Due Process Clause. Plaintiff’s
5

claims are all the more difficult to sustain because these are facial challenges to an Executive
6

Order. The Supreme Court has held that a facial challenge is “the most difficult challenge to
7

mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987). In this context, “the
8

challenger must establish that no set of circumstances exists under which the [challenged
9

enactment] would be valid.” Id.
10

As the Supreme Court has observed, “[f]acial challenges are disfavored for several
11

reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). First,
12

“[c]laims of facial invalidity often rest on speculation. As a consequence, they raise the risk of
13

premature interpretation of [enactments] on the basis of factually barebones records.” Id. (internal
14

quotation marks omitted). Additionally, such challenges “run contrary to the fundamental
15

principle of judicial restraint that courts should neither anticipate a question of constitutional law
16

in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is
17

required by the precise facts to which it is to be applied.” These rules apply to Executive Orders
18

as much as to statutes and regulations. See Am. Fed’n of State, Cty. & Mun. Employees v. Scott,
19

717 F.3d 851, 862-63 (11th Cir. 2013); NTEU v. Bush, 891 F.2d 99, 101 (5th Cir. 1989). As
20

further discussed below, plaintiff’s Complaint fails to establish that Section 9(a) of the Executive
21

Order would be invalid under all circumstances.
22

A. Plaintiff Fails to State a Viable Claim under the Tenth Amendment
23

Plaintiff’s First Claim for Relief alleges that the Executive Order violates the Tenth
24

Amendment, which provides that “[t]he powers not delegated to the United States by the
25

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
26

people.” This amendment embodies the principle that the “pre-existing sovereign States” (and
27

their subdivisions) retain their sovereignty under the Constitution and that the federal government

28

13

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 20 of 30

1 may not encroach upon that sovereignty. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

2 801 (1995); N.Y. v. United States, 505 U.S. 144, 156 (1992). Richmond alleges that the Order

3 violates this principle by “compel[ing] state officials to execute federal law” (Doc. 1 ¶ 74).

4

Although “[t]he Federal Government may not compel the States to enact or administer a

5 federal regulatory program” or to “act on the Federal Government’s behalf,” N.Y. v. United

6 States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2627

7 (2012), Richmond does not explain how Section 9(a) or any other provision of the Order could be

8 said to violate this principle. Moreover, the circumstances here belie any such conclusion. As

9 described above, Section 9(a) will be implemented by requiring applicants for certain grants to

10 “certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving

11 an award. See AG Mem. at 2. Thus, where, as here, Richmond’s obligation would arise only

12 because of its voluntary acceptance of grants that included the condition, the Federal Government

13 is not “compel[ing] [City] officials to execute federal law” because the City may decline to apply

14 for the specific DOJ or DHS grants to which this condition is attached. See Envtl. Def. Ctr., Inc.

15 v. EPA, 344 F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal

16 regulatory program does not offend the Constitution’s guarantees of federalism, the fact that the

17 alternative is difficult, expensive or otherwise unappealing is insufficient to establish a Tenth

18 Amendment violation.”) (internal quotation marks omitted).

19

Accordingly, Richmond has not pled a viable claim that the Executive Order violates the

20 Tenth Amendment.

21

B. Plaintiff Fails to State a Viable Claim under the Separation of Powers

22

Plaintiff’s Second Claim for Relief alleges that the Executive Order violates the

23 Separation of Powers because “Congress, not the President, has the authority to appropriate and

24 spend federal monies” (Doc. 1 ¶ 68). Article I of the Constitution confers on Congress the

25 authority to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for

26 the common Defence and general Welfare of the United States.” U.S. Const. Art. I, § 8, cl. 1. As

27 this Court has said, Congress may, “[i]ncident to” its spending power, “attach conditions on the

28

14

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 21 of 30

1 receipt of federal funds,” Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL

2 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (quoting Dole, 483 U.S. at 206), and “Congress can

3 delegate some discretion to the President to decide how to spend appropriated funds” so long as

4 “any delegation and discretion is cabined by [relevant] constitutional boundaries.” 2017 WL

5 1459081, at *21; see DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989)

6 (upholding conditions on spending imposed by President where statute authorized President to set

7 certain “terms and conditions as he may determine”).

8

Especially as elucidated by the AG Memorandum, the grant eligibility provision in

9 Section 9(a) of the Order is consistent with this division of constitutional responsibilities. Section

10 9(a) requires the Attorney General and Secretary of Homeland Security to condition grant

11 eligibility on compliance with 8 U.S.C. § 1373 “to the extent consistent with law.” The AG

12 Memorandum makes clear that the Order does not “purport to expand the existing statutory or

13 constitutional authority of the Attorney General and the Secretary . . . in any respect” and “does

14 not call for the imposition of grant conditions that would violate any applicable constitutional or

15 statutory limitation.” AG Mem. at 1-2. Even more specifically, the Memorandum confirms that

16 compliance with Section 1373 will be imposed as a condition of grant eligibility only where the

17 agency “is statutorily authorized to impose such a condition.” Id.

18

In fact, Congress has frequently authorized agencies administering certain grant programs

19 to impose discretionary conditions on the receipt of funds. Those statutory authorizations have

20 taken a variety of forms, including authorizing an agency to ensure that a grant recipient complies

21 “with all provisions of . . . applicable Federal laws,” see 42 U.S.C. § 3752(a)(5)(D) (governing

22 DOJ grant program), or allowing an agency to “plac[e] special conditions” on certain grants under

23 appropriate circumstances. See id. § 3712(a)(6). Pursuant to these types of statutory authori-

24 zations, DOJ has already conditioned eligibility for participation in three DOJ-administered grant

25 programs on the applicant’s certification of compliance with Section 1373. See generally Tr. of

26 Oral Arg. at 35:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr.

27 14, 2017) (identifying the three programs); 2017 WL 1459081, at *4 (same).

28

15

Motion to Dismiss; Memorandum

No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 22 of 30

1

Further, as noted above, a party challenging the facial constitutionality of an Executive

2 Order must establish that the Order would be unconstitutional in all its applications. See Salerno,

3 481 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which

4 [the enactment] would be valid”); see also Am. Fed’n of State, Cty. & Mun. Employees, 717 F.3d

5 at 862-63; NTEU v. Bush, 891 F.2d at 101. That standard is necessarily impossible to meet in

6 relation to plaintiff’s Separation of Powers claim, since Congress frequently authorizes the

7 Executive to impose discretionary conditions on the receipt of federal grants.

8

Therefore, especially in light of the AG Memorandum, plaintiff cannot state a viable claim

9 for violation of the constitutional Separation of Powers.

10

C. Plaintiff Fails to State a Viable Claim under the Spending Clause

11

Plaintiff’s Second Claim for Relief also alleges that the Executive Order exceeds the

12 federal power under the Spending Clause (Doc. 1 ¶¶ 96-101). This Clause provides that Congress

13 may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the

14 common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As the

15 Supreme Court has held, “Congress may attach conditions on the receipt of federal funds, and has

16 repeatedly employed the power to further broad policy objectives by conditioning receipt of

17 federal moneys upon compliance by the recipient with federal statutory and administrative

18 directives.” Dole, 483 U.S. at 206 (internal quotation marks omitted).

19

The Court in Dole described certain limitations or potential limitations on the spending

20 power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general

21 welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of

22 federal funds must be stated “unambiguously” so that recipients can “exercise their choice

23 knowingly, cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch.

24 & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate

25 under the spending power thus rests on whether the State voluntarily and knowingly accepts the

26 terms of the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of

27 the conditions or is unable to ascertain what is expected of it.”) (citations omitted) (hereinafter

28

16

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 23 of 30

1 Pennhurst). Additionally, the Court observed in Dole, “our cases have suggested (without

2 significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated

3 to the federal interest in particular national projects or programs,” and that “in some circum-

4 stances the financial inducement offered by Congress might be so coercive as to pass the point at

5 which pressure turns into compulsion.” 483 U.S. at 207-08, 211 (internal quotation marks

6 omitted).

7

Although these are limitations on congressional power, the plaintiff herein alleges that the

8 grant eligibility provision in Section 9(a) violates these limitations because “not even Congress

9 would have the authority to enact the Executive Order as legislation” (Doc. 1 ¶ 70). Specifically,

10 the City alleges that the provision imposes “new funding conditions on existing appropriations of

11 federal funds” (id. ¶ 71); that it imposes “conditions [that] are unrelated to the purpose for which

12 the funds are given” (id. ¶ 72); and that it “coerces Richmond to implement federal immigration

13 policy” (id. ¶ 78). Particularly in light of the AG Memorandum, each of these assertions is

14 without merit.

15

Focusing on the “knowing acceptance” aspect of Dole and Pennhurst, Richmond asserts,

16 first, that the grant eligibility provision unconstitutionally imposes “new funding conditions on

17 existing appropriations of federal funds” rather than imposing such conditions “in advance” (id.

18 ¶ 71).4 See 2017 WL 1459081, at *22 (“Because states must opt-in to a federal program

19 willingly, fully aware of the associated conditions, Congress cannot implement new conditions

20 after-the-fact.”). As described above, however, the AG Memorandum makes clear that the grant

21 eligibility provision will be implemented by “requiring jurisdictions applying for certain [DOJ]

22 grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for

23 receiving an award.” AG Mem. at 2. Thus, the AG Memorandum continues, “[a]ll grantees will

24 receive notice of their obligation to comply with section 1373” ahead of time, and the grant

25 eligibility provision will be applied to “[a]ny jurisdiction that fails to certify compliance.” Id.

26

4 Plaintiff does not allege that the grant eligibility provision violates the requirement that
27 federal grant conditions be stated “unambiguously.” Dole, 483 U.S. at 207. In any event, for the

28

reasons stated herein, any such claim would be without merit in light of the AG Memorandum. 17

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 24 of 30

1 Necessarily, therefore, potential grantees will be able to “exercise their choice knowingly,

2 cognizant of the consequences of their participation” in grant programs that include this

3 condition. Dole, 483 U.S. at 207. The plaintiff cannot show that the grant eligibility provision

4 will fail this aspect of Dole in all its applications, as necessary in this facial challenge. See

5 Salerno, 481 U.S. at 745.

6

Second, plaintiff alleges that the grant eligibility provision imposes “conditions [that] are

7 unrelated to the purpose for which the funds are given” (Doc. 1 ¶ 72). As the Court of Appeals

8 has observed, however, this aspect of Dole suggests only a “possible ground” for invalidating an

9 enactment, and does not impose an “exacting standard”:

10

The Supreme Court has suggested that federal grants conditioned on compliance

11

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

12

ground for invalidating a Spending Clause statute, which only suggests that the

legislation might be illegitimate without demonstrating a nexus between the

13

conditions and a specified national interest, is a far cry from imposing an exacting

14

standard for relatedness.

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).
15

Thus, conditions on federal funding must only “bear some relationship to the purpose of the
16

federal spending.” 314 F.3d at 1067 (quoting New York, 505 U.S. at 167); see Barbour v.
17

Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004) (noting that
18

Supreme Court has never “overturned Spending Clause legislation on relatedness grounds”).
19

Especially as implemented by the AG Memorandum, the grant eligibility provision easily
20

meets this standard. The provision will be applied only to grants administered by the Department
21

of Justice and the Department of Homeland Security – that is, the primary law enforcement
22

agency of the United States and the agency responsible for the admission and removal of non-
23

citizens. AG Mem. at 1. DHS is the very agency whose communication with state and local
24

government officials is protected by Section 1373. Moreover, the grant eligibility provision will
25

be applied only to “certain . . . grants” as to which the agency “is statutorily authorized to impose
26

such a condition.” Id. at 2. Plaintiff alleges that the grant eligibility provision threatens federal
27

funding that the City uses “to fund vital services,” mostly “housing and infrastructure

28

18

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 25 of 30

1 improvements” (Doc. 1 ¶ 7). The AG Memorandum has eliminated any possibility that the grant

2 eligibility provision could be applied in relation to any such categories of federal funding.

3

Third and finally, plaintiff alleges that the grant eligibility provision “coerces Richmond

4 to implement federal immigration policy” (id. ¶ 78). As the Court of Appeals has observed,

5 however, the Supreme Court in Dole concluded that it would find a violation of this potential

6 limitation, “if ever, [only] in the most extraordinary circumstances.” State of Cal. v. United

7 States, 104 F.3d 1086, 1092 (9th Cir. 1997) (citing Dole, 483 U.S. at 210-11). Thus, for example,

8 the Court in Dole found no constitutional violation where a State risked losing 5% of its highway

9 funds for refusing to implement a federal minimum drinking age. Dole, 483 U.S. at 211.

10 Conversely, the Court held more recently that Congress violated anti-coercion principles by

11 subjecting States to a risk of losing “all federal Medicaid funding,” which constituted “over 10

12 percent of a State’s overall budget,” if they declined to adopt certain Medicaid expansion actions.

13 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (hereinafter NFIB). In

14 that case, “the sheer size of this federal spending program in relation to state expenditures”

15 rendered the condition coercive. Id. at 2663. As the Court held, however, “courts should not

16 conclude that [an enactment] is unconstitutional on this ground unless the coercive nature of an

17 offer is unmistakably clear.” Id. at 2662.

18

Under this precedent, plaintiff’s “coerciveness” claim must fail, especially in light of the

19 AG Memorandum. As noted already, the grant eligibility provision of the Executive Order “will

20 be applied solely to [certain] federal grants administered by the Department of Justice or the

21 Department of Homeland Security, and not to other sources of federal funding.” AG Mem. at 1.

22 Moreover, DOJ has so far identified only three grant programs whose eligibility will be condi-

23 tioned on compliance with Section 1373. See Tr. of Oral Arg. at 35:2-9. In these circumstances,

24 the City has fallen far short of stating a viable claim that the “coercive nature” of the grant

25 eligibility provision is “unmistakably clear.” See NFIB, 132 S. Ct. at 2662.

26

27

28

19

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 26 of 30

1

In short, particularly as elucidated by the AG Memorandum, the Executive Order

2 constitutes only a “relatively mild encouragement” to comply with Section 1373. Dole, 483 U.S.

3 at 211.

4

D. Plaintiff Fails to State a Viable Claim under the Fourth Amendment

5

Plaintiff’s Third Claim for Relief is that the Executive Order violates the Fourth

6 Amendment because it “forces jurisdictions to keep people in custody who otherwise would be

7 released, thus potentially exposing the jurisdictions to liability under the Fourth Amendment”

8 (Doc. 1 ¶ 76). However, the AG Memorandum says nothing about detentions, and, in any event,

9 state or local law enforcement’s decision to exercise their authority to cooperate with federal

10 immigration detainer requests is fully consistent with the Fourth Amendment. Rather, the

11 Memorandum states that 8 U.S.C. § 1373 prevents state and local jurisdictions from prohibiting

12 or restricting the sending of certain information to federal immigration officials, and that juris-

13 dictions applying for grants will have to certify compliance with that statute. AG Mem. at 1-2.

14 Moreover, the Memorandum states affirmatively that the Order’s grant eligibility provision “does

15 not call for the imposition of grant conditions that would violate any applicable constitutional or

16 statutory limitation.” Id. at 2. For this reason, also, Richmond cannot show that Section 9(a)

17 would violate the Fourth Amendment in all potential applications, as it must in this facial

18 challenge. See Salerno, 481 U.S. at 745.

19

Therefore, especially in light of the AG Memorandum, Richmond cannot state a viable

20 claim for violation of the Fourth Amendment.

21

E. Plaintiff Fails to State a Viable Claim of Unconstitutional

22

Vagueness under the Due Process Clause

23

Plaintiff’s next claim, the Fourth Claim for Relief in the Complaint, is that Section 9(a) is

24 unconstitutionally vague in violation of the Due Process Clause (Doc. 1 ¶¶ 107-113).5 An

25 enactment may be unconstitutionally vague if it “fails to provide a reasonable opportunity to

26

5 Plaintiff alleges generally that “the Executive Order is unconstitutionally vague” (Doc. 1
27 ¶¶ 110-112), but all of the allegedly vague language cited in the Complaint relates to the grant

28 eligibility provision.

20

Motion to Dismiss; Memorandum

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Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 27 of 30

1 know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory

2 enforcement.” Tucson Woman's Clinic v. Eden, 379 F.3d 531, 554 (9th Cir. 2004) (citation

3 omitted). The Supreme Court, however, has cautioned against engaging in a vagueness analysis

4 in the pre-enforcement context, particularly in matters that do not involve First Amendment

5 rights. See Wash. State Grange, 552 U.S. at 450 (noting that facial vagueness challenges are “dis-

6 favored for several reasons,” including because such claims often “rest on speculation”).

7 “Outside the First Amendment context, a plaintiff alleging facial vagueness must show that the

8 enactment is impermissibly vague in all its applications.” Humanitarian Law Project v. U.S.

9 Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (internal quotation marks omitted). This is

10 consistent with the rule that a party challenging an enactment on its face must show that “no set

11 of circumstances exists under which the [enactment] would be valid.” Salerno, 481 U.S. at 745.

12 Moreover, courts will consider whether a provision is fairly “amenable to a limiting construction”

13 before striking it down as vague. Skilling v. United States, 561 U.S. 358, 405 (2010). Thus, a

14 plaintiff bringing a pre-enforcement facial vagueness challenge “bears a heavy burden.” SEIU,

15 Local 82 v. D.C., 608 F. Supp. 1434, 1446-47 (D.D.C. 1985).

16

In this case, the City argues that the Executive Order “fails to define key terms, such as

17 ‘sanctuary jurisdiction,’ . . . does not define what actions or inactions constitute ‘willful refusal to

18 comply with 8 U.S.C. § 1373’ [and] does not define what is meant by the phrase: ‘Ensure that

19 jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except

20 as mandated by law’” (Doc. 1 ¶¶ 110-112). As discussed above, however, the Order is an internal

21 directive to Executive Branch officials and does not have any direct effect on the plaintiff.

22 Therefore, there can be no legitimate question as to whether the Order provides “reasonable”

23 notice to the plaintiff. See Tucson Woman’s Clinic, 379 F.3d at 554. In any event, the AG

24 Memorandum authoritatively clarifies this aspect of the Order, specifying, for example, that “the

25 term ‘sanctuary jurisdiction’ will refer only to jurisdictions that “willfully refuse to comply with 8

26 U.S.C. 1373.” AG Mem. at 2. Additionally, the Memorandum makes clear that the “applicable

27 Federal law” referred to in Section 2 of the Order is 8 U.S.C. § 1373 and that Section 9(a) will be

28

21

Motion to Dismiss; Memorandum

No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 28 of 30

1 implemented by requiring certification of compliance with Section 1373 as a condition of certain

2 grants and by rendering ineligible any jurisdiction that fails to certify such compliance. Id.

3

Accordingly, plaintiff’s Fifth Amendment vagueness claim must be dismissed for failure

4 to state a claim on which relief can be granted.

5 IV. 6

Plaintiff Fails to State a Viable Claim for Declaratory Relief Regarding Its Compliance with Section 1373

7

Lastly, Richmond’s Fifth Claim for Relief seeks a judicial declaration that the City’s

8 policies comply with 8 U.S.C. § 1373 (Doc. 1 ¶¶ 114-117). The plaintiff does not, however,

9 identify a right of action, in Section 1373 or elsewhere, that would allow it to pursue such

10 declaratory relief, and, in any event, a declaration along those lines would constitute a prohibited

11 advisory opinion. Thus, the Fifth Claim for Relief does not plead a claim on which relief can be

12 granted.

13

“To raise a claim in federal court, plaintiffs must demonstrate both that a federal court will

14 have jurisdiction over their claim, and also that they (the plaintiffs) have a right of action to

15 initiate that claim. In other words, establishing the court’s jurisdiction and the litigants’ right of

16 action are two requirements that must be satisfied independently.” Harris Cty. Texas v.

17 MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015); see Alexander v. Sandoval, 532 U.S. 275,

18 286-87 (2001) (absent statutory intent to create a cause of action, one “does not exist and courts

19 might not create one, no matter how desirable that may be as a policy matter”). The general

20 jurisdictional statutes that plaintiff cites, 28 U.S.C. §§ 1331 and 1346 (Doc. 1 ¶ 13), do not create

21 independent causes of action. See Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997) (unpublished);

22 White v. Paulsen, 997 F. Supp. 1380, 1382 (E.D. Wash. 1998). Similarly, the Declaratory

23 Judgment Act, 28 U.S.C. §§ 2201-2202 (Doc. 1 ¶ 13), creates a certain remedy that may be

24 available to litigants, but does not itself create a cause of action. See, e.g., Muhammad v. Berreth,

25 No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory relief is

26 not an independent cause of action or theory of recovery, only a remedy. The [Declaratory

27

28

22

Motion to Dismiss; Memorandum

No. 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 29 of 30

1 Judgment Act] does not itself confer federal subject-matter jurisdiction.”) (citation and internal

2 quotation marks omitted).

3

Moreover, because there is no live, concrete controversy regarding whether Richmond

4 complies with Section 1373, any judicial ruling on that subject would constitute a prohibited

5 advisory opinion. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“[T]he federal courts . . . do

6 not render advisory opinions. . . . This is as true of declaratory judgments as any other field.”).

7 Plaintiff’s contention that an “actual controversy . . . presently exists between Richmond and

8 Defendants about whether [the City] complies with 8 U.S.C. § 1373” (Doc. 1 ¶ 117) is conclusory

9 and inaccurate. Plaintiff does not allege that the Secretary has designated it or threatened to

10 designate it as a “sanctuary jurisdiction” pursuant to Section 9(a), nor that DOJ or DHS has

11 deprived it or threatened to deprive it of any federal funds thereunder. “For a declaratory

12 judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a

13 hypothetical basis, but for an adjudication of present right upon established facts.” Ashcroft v.

14 Mattis, 431 U.S. 171, 172 (1977) (internal quotation marks omitted).

15

CONCLUSION

16

For the reasons discussed above, all of plaintiff’s claims should be dismissed with

17 prejudice.

18 Dated: June 8, 2017

19
Respectfully submitted,
20

CHAD A. READLER

21

Acting Assistant Attorney General

22
BRIAN STRETCH

23

United States Attorney

24

JOHN R. TYLER

25

Assistant Director

26

/s/ W. Scott Simpson

27
28
Motion to Dismiss; Memorandum No. 3:17-cv-01535-WHO

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel
23

Case 3:17-cv-01535-WHO Document 26 Filed 06/08/17 Page 30 of 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Motion to Dismiss; Memorandum No. 3:17-cv-01535-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA
24

 
 Case 3:17-cv-01535-WHO Document 29 Filed 06/22/17 Page 1 of 30

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 CAMILO ARTIGA-PURCELL (SBN 273229) cartigapurcell@cpmlegal.com
5 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
6 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
7 840 Malcolm Road, Suite 200 Burlingame, CA 94010
8 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
9
BRUCE REED GOODMILLER (SBN 121491) 10 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 11 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 12 450 Civic Center Plaza
P.O. Box 4046 13 Richmond, CA 94804
Telephone: (510) 620-6509 14 Facsimile: (510) 620-6518

15 Attorneys for Plaintiff City of Richmond

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

18 CITY OF RICHMOND, a municipal corporation,
19 Plaintiff,
20
vs. 21
DONALD J. TRUMP, President of the 22 United States,
JOHN F. KELLY, Secretary of the 23 United States Department of Homeland
Security, 24 JEFFERSON B. SESSIONS, Attorney
General of the United States, and the 25 UNITED STATES OF AMERICA,

Case No. 3:17-cv-01535-WHO
CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Date: July 12, 2017 Time: 2:00 p.m. Judge: Honorable William H. Orrick Dept.: Courtroom 2
Complaint Filed: March 21, 2017 Trial Date: April 23, 2018

26

Defendants.

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 29 Filed 06/22/17 Page 2 of 30

1 2 3 I. 4 II. 5 III. 6 7 8 9 10 IV. 11 V. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS Page
INTRODUCTION................................................................................................... 1 ISSUES PRESENTED............................................................................................2 ALLEGATIONS IN THE COMPLAINT ............................................................3 A. Richmond Has a Policy of Community Policing to Increase Public Safety .......3 B. The Executive Order Explicitly States that the Federal Government Will
Take Away All Federal Funds from Sanctuary Jurisdictions that Willfully Refuse to Comply with 8 U.S.C. 1373 ................................................................3 C. Richmond Has Been Injured by the Executive Order .........................................4 STANDARD OF REVIEW ....................................................................................5 LEGAL ARGUMENT............................................................................................6 A. The President’s Discretion to Enforce Immigration Law Must Be Consistent with His Constitutional Authority and Statutory Authority................................6 B. The Attorney General Memorandum Providing His Interpretation of the Executive Order Does Not Cure the Facial Unconstitutionality of the Order Because His Interpretation Is Inconsistent with Its Plain Meaning ....................7 1. The Court Should Give No Weight to the Attorney General’s
Memorandum Because It Contradicts the Plain Meaning of the Executive Order .............................................................................................7 2. The Attorney General’s Memo is Not Legally Binding ................................9 C. Richmond Has Standing and Its Claims Are Ripe ............................................11 1. Richmond Has Standing ..............................................................................11 2. Richmond’s Claims Are Ripe ......................................................................14 D. Richmond Alleges a Viable Claim under the Tenth Amendment.....................14 E. Richmond Alleges a Viable Claim under the Separation of Powers and Spending Clause ................................................................................................15 1. Richmond States a Viable Claim under the Separation of Powers..............16 2. Richmond States a Viable Claim under the Spending Clause.....................17 F. Richmond States a Viable Claim under the Fourth Amendment ......................18 G. Richmond States a Viable Claim of Unconstitutional Vagueness under the Due Process Clause .....................................................................................19

Law Offices COTCHETT, PITRE &
CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO i
MCCARTHY, LLP

Case 3:17-cv-01535-WHO Document 29 Filed 06/22/17 Page 3 of 30

1 2 3
VI. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

H. Richmond States a Viable Claim for Declaratory Relief regarding Its Compliance with 8 U.S.C. § 1373.....................................................................21
CONCLUSION .....................................................................................................22

Law Offices COTCHETT, PITRE &
CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO ii
MCCARTHY, LLP

Case 3:17-cv-01535-WHO Document 29 Filed 06/22/17 Page 4 of 30

1 2 3 Cases

TABLE OF AUTHORITIES

Page(s)

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982) ...................................................................................................... 13
5

6

Bassidji v. Goe, 413 F.3d 928 (9th Cir. 2005) ........................................................................................... 8

7 Batuhan v. Assurity Fin. Servs.,

8 No. 15-cv-04526-WHO, 2016 U.S. Dist. LEXIS 34911

9

(N.D. Cal. Mar. 16, 2016) ............................................................................................... 5

10 Chen v. Schiltgen, No. C-94-4094 MHP, 1995 U.S. Dist. LEXIS 7352
11 (N.D. Cal. May 19, 1995)..............................................................................................12

12 Christopher v. SmithKline Beecham Corp., 13 567 U.S. 142 (2012) ......................................................................................................11

14 City of Santa Cruz v. Gonzales, No. C 03-01802 JF, 2007 U.S. Dist. LEXIS 66414
15 (N.D. Cal. Aug. 30, 2007) .............................................................................................15

16 Clinton v. City of N.Y.. 524 U.S.417, 118 S. Ct. 2091 (1998) ............................................16

17 Cnty. of Santa Clara v. Trump,

18 No. 17cv574-WHO, 2017 U.S. Dist. LEXIS 62871

19

(N.D. Cal. Apr. 25, 2017).......................................................................................passim

20 Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) ..........................................19, 20
21 Foti v. City of Menlo Park,
22 146 F.3d 629 (9th Cir, 1998) ...........................................................................................7

23 Hawaii v. Trump, 24 No. 17-15589, 2017 U.S. App. LEXIS 10356 (9th Cir. May 15, 2017) ...................7, 12

25 Khan v. K2 Pure Sols., LP,

No. 12-cv-05526-WHO, 2013 U.S. Dist. LEXIS 126347

26

(N.D. Cal. Sep. 3, 2013) ................................................................................................ 22

27 Knox v. Service Employees Intern Union,
28 567 U.S. 298 (2012) ......................................................................................................10

Law Offices COTCHETT, PITRE &
CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO iii
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Case 3:17-cv-01535-WHO Document 29 Filed 06/22/17 Page 5 of 30

1 Legal Aid Soc. of Alameda Cnty. v. Brennan,

2

608 F.2d 1319 (9th Cir. 1979) .................................................................................11, 12

3 Marbury v. Madison, 5 U.S. 137 (1803) ........................................................................................................2, 7
4
MedImmune, Inc. v. Genentech, 5 549 U.S. 118 (2007) ......................................................................................................13

6 Mendia v. Garcia, 7 165 F. Supp. 3d 861 (N.D. Cal. 2016)...........................................................................18

8 Minn. v. Mille Lacs Band of Chippewa Indians, 9 526 U.S. 172 (1999) ........................................................................................................7
10 Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340
11 (D. Or. Apr. 11, 2014) ...................................................................................................18

12 Morales v. Chadbourne, 13 793 F.3d 208 (1st Cir. 2015) ..........................................................................................18

14 New York v. United States, 505 U.S. 144, 112 S. Ct. 2408 (1992) ........................................................................... 15
15

16

Northfield Ins. Co. v. Civic Ctr. Hotel, LLC, No. 3:16-cv-06056-WHO, 2017 U.S. Dist. LEXIS 33328

17 (N.D. Cal. Mar. 8, 2017) ...............................................................................................21

18 Oregon v. Ashcroft,

19

368 F.3d 1118 (9th Cir. 2004) .....................................................................................2, 7

20 Orellana v. Nobles Cnty., 2017 U.S. Dist. LEXIS 2438 (D. Minn. Jan. 6, 2017) .................................................. 18
21 Organized Village of Kake v. U.S. Dep’t of Agric.,
22 795 F.3d 956 (9th Cir. 2015) .........................................................................................14

23 Printz v. United States, 24 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997) ............................................15

25 S.D. v. Dole,

26

483 U.S. 203, 107 S. Ct. 2793 (1987) ........................................................................... 18

27 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) ....................................................................................... 14
28

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1 Susan B. Anthony List v. Driehaus, 2 134 S. Ct. 2334 (2014) ..................................................................................................14
3 Tenaska Wash. Partners, L.P. v. United States, 34 Fed. Cl. 434 (1995)...............................................................................................9, 10
4 Thomas Jefferson Univ. v. Shalala,
5 512 U.S. 504, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) ......................................2, 7, 8
6 United States v. Stevens, 7 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) ........................................8, 10

8 United States v. Arizona,

9

No. CV 10-1413-PHX-SRB, 2010 U.S. Dist. LEXIS 146654 (D. Ariz. Dec. 10, 2010) .................................................................................................. 6

10 United States v. Pickard,
11 100 F. Supp. 3d 981 (E.D. Cal. 2015) ...........................................................................12

12 United States v. Washington, 13 759 F.2d 1353 (9th Cir. 1985) .......................................................................................21

14 United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830 (2008) .....................................................................20, 21
15

16

Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ....................................................................................... 20

17 Vietnam Veterans of Am. v. CIA,
18 811 F.3d 1068 (9th Cir. 2016) .......................................................................................11

19 Village of Euclid v. Ambler Realty Co., 20 272 U.S. 365 (1926) ......................................................................................................13

21 Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988) ...................................................................................................... 13
22

23

Walker v. Ford Motor Co., No. 3:16-cv-06297-WHO, 2017 U.S. Dist. LEXIS 35757

24 (N.D. Cal. Mar. 13, 2017) ...............................................................................................5

25 Whitman v. Am. Trucking Associations,

26

531 U.S. 457 (2001) ...................................................................................................... 10

27 Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) ....................................................................................... 14
28

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1 U.S. Constitution

2 Article I, § 8, cl. 1..........................................................................................................16

3

Article II, § 3, cl. 5 ........................................................................................................ 16

4 Article III .........................................................................................................2, 7, 12, 14
5

Federal Statutes 6

7 8 United States Code

8 Section 1103(a)(1) .........................................................................................................10

9 Section 1373 ...........................................................................................................passim

10 28 United States Code

11 Section 512 ..............................................................................................................10, 11
12 Federal Rules of Civil Procedure
13 Rule 12(b)(1) ................................................................................................................... 5
14 Rule 12 (b)(6) .................................................................................................................. 5
15 16 Federal Regulations
17 28 Code of Federal Regulations

18 Section .25 .....................................................................................................................11

19 Section .5(c).............................................................................................................10, 11

20 82 Fed. Reg. 8799 (Jan. 25, 2017) ........................................................................................3

21 State Statutes

22 California Government Code

23 Section 7282 .................................................................................................................. 13
24

25

Section 7282.5 ............................................................................................................... 13

26 Other Authorities

27 52 Admin. L. Rev. 1303 .............................................................................................9, 10

28

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1

I. INTRODUCTION

2

This case involves plaintiff, City of Richmond’s (“Richmond”), constitutional

3 challenge to an Executive Order issued by defendant, Donald J. Trump, shortly after he

4 took office that threatens to take away all of the funding Richmond receives from the

5 federal government.

6

Ignoring the allegations of Richmond’s complaint and this Court’s order granting a

7 preliminary injunction in the related City and County of San Francisco’s and County of

8 Santa Clara’s cases, Cnty. of Santa Clara v. Trump, No. 17cv574-WHO, 2017 U.S. Dist.

9 LEXIS 62871 (N.D. Cal. Apr. 25, 2017),1 hereinafter referred to as the Preliminary

10 Injunction Order, Defendants seek to dismiss all claims asserted by Richmond. Their

11 motion must fail because Executive Order 13768 (“Executive Order”) is unconstitutional

12 on its face. It violates the Tenth Amendment, the Separation of Powers, the Spending

13 Clause, the Fourth Amendment, and the Due Process Clause of the Constitution.

14

Apparently recognizing the constitutional infirmities of the Executive Order,

15 defendant Jefferson B. Sessions, the Attorney General, issued a memorandum on May 22,

16 2017 (the “Attorney General Memorandum”), Dkt. 26-1, which Defendants now claim

17 fixes any constitutional infirmities and requires that the Court dismiss Richmond’s

18 complaint. However, this Court properly rejected such a narrow interpretation when it

19 issued the Preliminary Injunction Order:

20

With regards to the merits of the Government’s construction, the Order is not

21

readily susceptible to the Government’s narrow interpretation. Indeed, “[t]o read

[the Order] as the Government desires requires rewriting, not just reinterpretation.” 22

23 Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *33-34 quoting United

24 States v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010).

25

26 1 Richmond brought its own motion for preliminary injunction, which this Court denied

27

as moot since it had already granted a motion for preliminary injunction that provided relief nationwide. Order Denying Motion for Preliminary Injunction as Moot, Dkt. 25,

28 filed May 22, 2017.

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1

The fact that the Attorney General issued a written memorandum should not

2 change the Court’s conclusion. This Court, not the Attorney General, interprets the law.

3 U.S. CONST. art. III; see also Marbury v. Madison, 5 U.S. 137, 177 (1803). The Court can

4 consider the Attorney General’s interpretation, but when the interpretation contradicts the

5 plain language of the Executive Order, as it does here, the Court can and should give no

6 weight to the Attorney General’s interpretation. Thomas Jefferson Univ. v. Shalala, 512

7 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994); Oregon v. Ashcroft, 368 F.3d

8 1118, 1129 (9th Cir. 2004).

9

II. ISSUES PRESENTED

10

1. Should this Court give no weight to the Attorney General Memorandum

11 when it contradicts the plain language and express purpose of the Executive Order?

12

2. Does Richmond have standing and are its claims ripe?

13

3. Does Richmond state a viable claim that the Executive Order violates the

14 Tenth Amendment when it alleges facts demonstrating that the Executive Order is

15 coercive and compels Richmond to change its policy and enforce a federal regulatory

16 program?

17

4. Does Richmond state a viable claim that the Executive Order violates the

18 Separation of Powers and the Spending Clause when it alleges facts that show that the

19 President did not have the authority to issue the Executive Order and that the Executive

20 Order impermissibly threatens to take away all of Richmond’s federal funds?

21

5. Does Richmond state a viable claim that the Executive Order violates the

22 Fourth Amendment by requiring Richmond to detain people, pursuant to civil detainer

23 requests, who would otherwise be released?

24

6. Does Richmond state a viable claim that the Executive Order is

25 unconstitutionally vague for failing to: (a) define key terms; and (b) explain what

26 jurisdictions must do to comply with the Executive Order?

27

7. Does Richmond state a claim for declaratory relief regarding its compliance

28 with 8 U.S.C. § 1373?

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1

III. ALLEGATIONS IN THE COMPLAINT

2

A. Richmond Has a Policy of Community Policing to Increase Public

Safety

3

4

In 1990 in response to immigrants’ concerns and to increase public safety,

5 Richmond enacted Ordinance No. 29-90 with the purpose to “foster an atmosphere of trust

6 and cooperation between the Richmond Police Department and all persons, regardless of

7 immigration status, residing in the City of Richmond; …” Complaint ¶ 24 (hereinafter all

8 references to ¶ and Ex. are to the Complaint); see also ¶ 25, Ex. 2. On February 6, 2007,

9 Richmond enacted Resolution 11-07, which reaffirmed its commitment that Richmond

10 “welcomes and values all of its residents and supports them to live and work free from

11 discrimination, hostility, abuse, violation, exploitation and fear of local, state and federal

12 law enforcement; …” ¶ 26, Ex. 3. These actions by Richmond are based upon the policy

13 decision that community policing is proven and effective in maintaining community

14 safety. ¶¶ 2, 28, 44, 46, 48.

15

B. The Executive Order Explicitly States that the Federal Government

Will Take Away All Federal Funds from Sanctuary Jurisdictions that

16

Willfully Refuse to Comply with 8 U.S.C. 1373

17

“On January 25, 2017, defendant President Donald J. Trump issued Executive

18 Order, No. 13768 entitled ‘Enhancing Public Safety in the Interior of the United

19 States,’ 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive Order”), which, in violation of the

20 Constitution, seeks to force local police departments, such as the Richmond Police

21 Department, to enforce federal immigration law.” ¶ 1 (emphasis in original).

22

The complaint quotes various portions of the Executive Order and attaches it to the

23 Complaint. See e.g., ¶¶ 3, 49-54; Ex. 1. For example, the Complaint alleges:

24

The Executive Order is in direct violation of the U.S. Constitution because

25

it allows the Attorney General and Secretary of Homeland Security, based

upon their discretion, to withhold federal funds from public entities that are

26

jurisdictions who “willfully refuse” to comply with 8 U.S.C. 1373, a statute

27

which seeks to regulate state and local jurisdictions’ response to

28

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1

immigration requests, and for the Attorney General to take enforcement

2

actions against any jurisdiction that violates federal law.

3 ¶ 3.

4

The broad language of the Executive Order is confirmed by the broad statements of

5 the President and Attorney General. “Based upon the public statements of Defendants,

6 they intend to broadly define jurisdictions that do not comply with federal immigration

7 laws and to punish those jurisdictions with the withdrawal of all federal funds.” ¶ 62.

8 Since President Trump’s inauguration, he and his office have reaffirmed his campaign

9 statements about the breadth of the Executive Order including posting statements on the

10 official White House website. ¶¶ 62-65. On a television show, on February 5, 2017,

11 President Trump referenced sanctuary cities and the “‘tremendous amount of money’ the

12 federal government gives to California.” ¶ 65.

13

Based upon Defendants’ statements, Richmond’s enactment of Ordinance No. 29-

14 90 and Resolution 11-07, Richmond being referred to as a sanctuary city, and Richmond’s

15 large Latino population, it appears that there is a substantial probability that Defendants

16 will seek to enforce the Executive Order against Richmond. ¶ 67.

17

C. Richmond Has Been Injured by the Executive Order

18

The Executive Order directly affects Richmond now by attempting to coerce it to

19 change its policies regarding cooperation with immigration enforcement. ¶¶ 3, 78, 92, 93.

20

The Executive Order has already caused injury to Richmond. ¶¶ 79-85, 87.

21 Specifically, Richmond receives over $46 million annually from federal and state funds,

22 which provides critical services, such as grants for street improvements, community

23 oriented policing, low income public housing, housing choice voucher programs, and

24 home repairs to its residents. ¶¶ 82, 83. Many of the state funds are pass-through funds.

25 ¶ 82. The Executive Order has created fear and confusion regarding the actions that

26 Attorney General Sessions and Secretary of Homeland Security Kelly will take. ¶ 79.

27 Richmond has been forced to expend resources as a result of the Executive Order and the

28 positive effects of its policies on the relationship between law enforcement and the

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1 immigrant community have started to dissipate as a result of the Executive Order. ¶ 81.

2 Richmond is in the midst of its budgeting process and the Executive Order is causing

3 uncertainty to Richmond’s budget because of the prospect of losing all federal funds,

4 which would have an immediate and devastating effect on Richmond and its residents.

5 ¶¶ 81, 84-85.

6

IV. STANDARD OF REVIEW

7

Defendants bring their motion based on both Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

8

The standard for review for a Rule 12(b)(6) motion to dismiss is well known to this

9 Court. The motion tests the legal sufficiency of a complaint and dismissal is appropriate

10 only where the complaint lacks a cognizable legal theory or sufficient facts to support a

11 cognizable legal theory. The complaint must plead sufficient facts to show that a claim is

12 plausible on its face, i.e., the court can draw the reasonable inference that the defendant is

13 liable for the misconduct alleged. The court must accept factual allegations in the

14 complaint as true and construe the pleadings in the light most favorable to the nonmoving

15 party, but conclusory allegations of law and unwarranted inferences are insufficient to

16 avoid dismissal and speculative allegations may be considered implausible. Batuhan v.

17 Assurity Fin. Servs., No. 15-cv-04526-WHO, 2016 U.S. Dist. LEXIS 34911, at *5-7 (N.D.

18 Cal. Mar. 16, 2016).

19

For a motion to dismiss under Rule 12(b)(1), which is a challenge to the court’s

20 subject matter jurisdiction, the party invoking the federal court’s jurisdiction bears the

21 burden of establishing that the court has subject matter jurisdiction to grant the requested

22 relief. Where as in this case, the jurisdictional challenge is confined to the allegations of

23 the complaint, the court assumes that the allegations in the complaint are true and draws

24 all reasonable inferences in favor of the party opposing dismissal. Walker v. Ford Motor

25 Co., No. 3:16-cv-06297-WHO, 2017 U.S. Dist. LEXIS 35757, at *6-7 (N.D. Cal. Mar. 13,

26 2017).

27

As set forth more fully below, Richmond’s Complaint satisfies the requirements of

28 both Rule 12(b)(1) and (b)(6). As alleged in the Complaint, this Court has subject matter

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1 jurisdiction because Richmond has standing to sue as a result of its well-founded

2 imminent fear of enforcement and the Defendants’ coercion to force Richmond to change

3 its policies. Richmond does not need to wait until funds are withheld to bring suit.

4 Further, the Complaint demonstrates that the Executive Order is unconstitutional because

5 it violates the Tenth Amendment, the Separation of Powers, the Spending Clause, the

6 Fourth Amendment, and the Due Process clause. Similar claims have already been

7 assessed under the more exacting preliminary injunction standard and this Court held that

8 the claims will likely succeed on their merits. United States v. Arizona, No. CV 10-1413-

9 PHX-SRB, 2010 U.S. Dist. LEXIS 146654, *16 (D. Ariz. Dec. 10, 2010) (“On account of

10 the more exacting standard required to demonstrate a likelihood of success on the merits,

11 the Court will not reexamine in this Order the claims with regard to which the Court

12 previously found that Plaintiff had demonstrated a likelihood of success.”). Nothing in the

13 Attorney General Opinion changes this conclusion because the Executive Order is not

14 readily susceptible to the Memorandum’s narrow interpretation and to read the Executive

15 Order as Defendants desire requires rewriting, not just reinterpretation. See Cnty. of Santa

16 Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *33-34. Lastly, Richmond states a

17 claim for declaratory relief based upon its controversy over whether it complies with 8

18 U.S.C. § 1373.

19

V. LEGAL ARGUMENT

20

A. The President’s Discretion to Enforce Immigration Law Must Be

Consistent with His Constitutional Authority and Statutory Authority

21

22

The President is not a king or dictator with unlimited power. Instead, he is part of a

23 democracy created by our founders to have three separate but equal branches of

24 government. The President’s discretion in immigration matters is circumscribed by the

25 Constitution and statutes. As the Ninth Circuit recently held in ruling on the President’s

26 travel ban: “The Immigration and Nationality Act (‘INA’) gives the President broad

27 powers to control the entry of aliens, and to take actions to protect the American public.

28 But immigration, even for the President, is not a one-person show. The President’s

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1 authority is subject to certain statutory and constitutional restraints.” Hawaii v. Trump,

2 No. 17-15589, 2017 U.S. App. LEXIS 10356, at *14-15 (9th Cir. May 15, 2017).

3

As demonstrated below, the Executive Order exceeds any President’s authority and

4 Richmond has properly alleged its constitutional infirmities.

5

B. The Attorney General Memorandum Providing His Interpretation of

6

the Executive Order Does Not Cure the Facial Unconstitutionality of the

Order Because His Interpretation Is Inconsistent with Its Plain

7

Meaning

8

1. The Court Should Give No Weight to the Attorney General’s

Memorandum Because It Contradicts the Plain Meaning of the

9

Executive Order

10

Having failed to convince this Court to adopt the interpretation of the Executive

11 Order that Defendants’ attorneys proffered at the hearing on the preliminary injunction

12 motion, the Attorney General on May 22, 2017 issued a two page memorandum setting

13 out his determination of the scope of the Executive Order. Doc. 26-1 filed June 8, 2017.

14

This Court should give no weight to the Attorney General Memorandum. The

15 judicial branch has a constitutional duty to exercise its own independent judgment when

16 determining the law. U.S. CONST. art. III; see also Marbury v. Madison, 5 U.S. at 177 (“It

17 is emphatically the province and duty of the judicial department to say what the law is.”);

18 Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 193-94 (1999) (resolving

19 dispute over the correct interpretation of an Executive Order).

20

The Attorney General Memorandum is not persuasive and conflicts with the plain

21 language and express purpose of the Executive Order. It is not the job of the courts to

22 adopt an interpretation of a statute precluded by its plain language. Cnty. of Santa Clara

23 v. Trump, 2017 U.S. Dist. LEXIS 62871, at *33 (quoting Foti v. City of Menlo Park, 146

24 F.3d 629, 639 (9th Cir. 1998)); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. at

25 512 (courts do not defer to Attorney General’s interpretation if “an alternative reading is

26 compelled by the regulation’s plain language or by other indications of the Secretary’s

27 intent at the time of the regulation’s promulgation.”); Oregon v. Ashcroft, 368 F.3d at

28 1129 (“Given the plain language of the CSA [Controlled Substances Act] and its

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1 legislative record, we are under no obligation to defer to the Attorney General’s

2 interpretation of his role under the statute and its implementing regulations” (citations

3 omitted).

4

This Court has already rejected a narrow reading of the Executive Order. The

5 Attorney General, whose interpretation is consistent with the interpretation advanced by

6 Defendants in opposing the preliminary injunction motion, “attempts to read out all of

7 Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and

8 ultimately toothless threat.” Cnty of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871,

9 at *35.

10

The Attorney General Memorandum provides that section 9(a) “will be applied

11 solely to federal grants administered by the Department of Justice or the Department of

12 Homeland Security, and not to other sources of federal funding.” Dkt. 26-1, Memo at 1.

13 Additionally, the memo states that the Order “does not call for the imposition of grant

14 conditions that would violate any applicable constitutional or statutory limitation.” Dkt.

15 26-1, Memo at 1-2. Put simply, “this interpretation is in conflict with the Order’s express

16 language and is plainly not what the Order says.” Cnty of Santa Clara v. Trump, 2017

17 U.S. Dist. LEXIS 62871, at *35. As the Court held, in light of its plain text, Defendants’

18 interpretation of the Executive Order is “implausible,” “[n]othing in Section 9(a) limits the

19 ‘Federal grants’ affected to those only given though the Departments of Justice and

20 Homeland Security.” Id. at *36; see also United States v. Stevens, 559 U.S. at 481 (courts

21 do not adopt interpretations that “require[] rewriting, not just reinterpretation.”).

22

Furthermore, this narrow interpretation is inconsistent with the intent behind the

23 Order at the time it was issued, another reason the interpretation should be rejected. ¶¶

24 62-65; Thomas Jefferson Univ. v. Shalala, 512 U.S. at 512; Bassidji v. Goe, 413 F.3d 928,

25 934 (9th Cir. 2005) (“the text must be construed consistently with the Order’s object and

26 policy”). By limiting the Order to enforcing only existing grant conditions, the Attorney

27 General’s interpretation narrows the Order to such an extent that it fails to serve any

28 purpose over and beyond what other laws already provided. As this Court previously

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1 found, “a construction so narrow that it renders a legal action legally meaningless cannot

2 possibly be consistent with the Order’s broad intent.” Cnty of Santa Clara v. Trump, 2017

3 U.S. Dist. LEXIS 62871, at *35-36.

4

Defendants appear to argue that since the executive branch must follow the

5 Attorney General Memorandum, the Executive Order is constitutional. However, this

6 argument must fail because the Attorney General Memorandum is an unreasonable

7 interpretation, contradicted by the plain language of the Executive Order. As this Court

8 stated in the Preliminary Injunction Order: “Adopting the Government’s proposed reading

9 would transform an Order that purports to create real legal obligations into a mere policy

10 statement and would work to mislead individuals who are not able to conclude, by reading

11 Section 9(a) itself, that it is fully self-cancelling and carries no legal weight.” Cnty. of

12 Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *38. The fact that the Attorney

13 General put his interpretation in a written form does not change the conclusion reached by

14 this Court based upon the interpretation advanced by agents of the Attorney General in

15 court pleadings and statements in court.

16

Because the plain language of the Executive Order cannot be reconciled with the

17 interpretation advanced by the Attorney General, the interpretation should be given no

18 weight by this Court.

19

2. The Attorney General’s Memorandum is Not Legally

Binding 20

Defendants’ argument does not compel a different conclusion. Defendants do not

21

and cannot argue that this Court must defer to the Attorney General’s interpretation.

22

Instead, they simply contend that “[b]y longstanding tradition and practice, the Attorney

23

General’s legal opinions are treated as authoritative by the heads of executive agencies.”

24

Def. Mem. at 7:18-22 (citing Tenaska Wash. Partners, L.P. v. United States, 34 Fed. Cl.

25

434, 439 (1995) and “Recent Developments Federal Agency Focus: The Department of

26

Justice: Executive Branch Legal Interpretation: A Perspective from the Office of Legal

27

Counsel, 52 Admin. L. Rev. 1303, 1319-20). There is no dispute that the “Attorney

28

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1 General has a statutory duty to advise executive department heads on ‘questions of law’”

2 and “furnish legal opinions to executive agencies.” Def. Mem. at 7:13-15 (citing 28

3 U.S.C. § 512 and 28 C.F.R. § 0.5(c)). The Secretary of Homeland Security principally

4 administers the immigration laws and the Attorney General does provide interpretations of

5 law. Def. Mem. at 7:15-18 (citing 8 U.S.C. § 1103(c)(1)).2 However, the force of the

6 Attorney General’s opinions is not as strong as Defendants contend. This Court is not the

7 head of an executive agency, but rather part of an independent branch of the federal

8 government, the judicial branch. As the court in Tenaska explained, the Court need not

9 accept the reasoning of the Attorney General’s Memorandum: “Of course, the fact that the

10 Department of Justice asserts a legal theory does not bind the court to accept the reasoning

11 as legally correct; in fact, the court should view any change in position with care.”

12 Tenaska Wash. Partners, L.P. v. United States, 34 Fed. Cl. at 440. The law review article,

13 cited by Defendants, confirms that the Attorney General’s opinion is only the executive

14 branch’s interpretation of the law, and whether Attorney General’s opinions have any

15 binding effect is an unsettled issue within the executive branch. 52 Admin. L. Rev. at

16 1318, 1321.

17

The Attorney General Memorandum does not rewrite the order to make it

18 constitutional. Rather it is a mere promise by the Attorney General not to enforce the

19 Executive Order as it is written. However, an unconstitutional law is not cured by an

20 agency choosing to voluntarily forego, for the time being, the unconstitutional powers

21 granted to it. Whitman v. Am. Trucking Associations, 531 U.S. 457, 472-473 (2001); see

22 also Knox v. Service Employees Intern Union, 567 U.S. 298, 307 (2012). Courts should

23 “not uphold an unconstitutional statute merely because the Government promised to use it

24 responsibly.” United States v. Stevens, 559 U.S. at 480; see also Cnty. of Santa Clara v.

25 Trump, 2017 U.S. Dist. LEXIS 62871, at *71 (“The Counties challenge the Executive

26

27 28 2 Richmond believes that Defendants meant to cite to 8 U.S.C. § 1103(a)(1).

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1 Order as written; a decision to enforce it sparingly cannot impact whether it is

2 unconstitutional on its face.”).

3

These principles are especially true here. The Attorney General can change this

4 interpretation at any time. The memo is only directed to the Department of Justice and its

5 failure to address other departments or discuss how they will address detainer requests

6 suggests that it is an informal implementation memo and it is unclear that it is binding on

7 any other agency. Strengthening this conclusion is the fact that the memo offers no legal

8 analysis or opinion, but instead only summarizes the pertinent terms of the Executive

9 Order and directs the Department of Justice on how to implement it. Moreover, it was not

10 issued by the Office of Legal Counsel (“OLC”), the office with the delegated

11 responsibility to issue such opinions. 28 C.F.R. §§ .25, .5(c); 28 U.S.C. § 512. Finally,

12 the Court can consider the Attorney General Memorandum a convenient legal strategy

13 rather than its permanent interpretation of the Executive order. See Christopher v.

14 SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (agency deference does not apply

15 “when it appears that the interpretation is nothing more than a ‘convenient litigating

16 position’”) (citation omitted); Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1078 (9th

17 Cir. 2016) (same). Accordingly, this Court should give no weight to the Attorney

18 General’s memorandum.

19

C. Richmond Has Standing and Its Claims Are Ripe

20

1. Richmond Has Standing

21

In the Preliminary Injunction Order, this Court rejected Defendants’ claim that San

22 Francisco and Santa Clara lacked standing and their claims were not ripe. Cnty. of Santa

23 Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *43, 72. Similarly, Richmond’s

24 complaint sufficiently alleges standing and ripeness. See e.g. ¶¶ 79-85.

25

First, this Court has already found that the Executive Order “carries the force of

26 law.” Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at * 38; see also Legal Aid

27 Soc. of Alameda Cnty. v. Brennan, 608 F.2d 1319, 1329 (9th Cir. 1979). The Executive

28 Order contains no language suggesting it was intended to be merely an internal directive.

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1 Hawaii v. Trump, 2017 U.S. App. LEXIS 103562017, at *86 (distinguishing unlawful

2 provisions of executive order that “burden individuals outside the executive branch” and

3 those that only pertain to “internal government operations and procedures”).3 Defendants

4 unpersuasively argue that the Executive Order serves only as an internal directive that

5 does not impose any affirmative obligations on state or local jurisdictions. Def. Mem. at

6 11:16-12:25. Yet, as this Court stated: “The Federal Government may neither issue

7 directives requiring the States to address particular problems, nor command the States’

8 officers, or those of their political subdivisions, to administer or enforce a federal

9 regulatory program. That is true whether Congress directly commands a State to regulate

10 or indirectly coerces a State to adopt a federal regulatory system as its own.” Cnty. of

11 Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *80-81 (citations and internal

12 quotations omitted). “While the President is entitled to highlight his policy priorities, an

13 Executive Order carries the force of law. Adopting the Government’s proposed reading

14 would transform an Order that purports to create real legal obligations into a mere policy

15 statement and would work to mislead individuals who are not able to conclude, by reading

16 Section 9(a) itself, that it is fully self-cancelling and carries no legal weight.” Id., 2017

17 U.S. Dist. LEXIS 62871, at *38.

18

Second, the Executive Order directly affects Richmond by attempting to compel it

19 to change its policies regarding cooperation with immigration enforcement, specifically its

20 policies to increase public safety and make all residents feel welcome in Richmond as set

21 forth in official City Council enactments. ¶¶ 2, 3, 24-28, 36, 78, 92, 93, Ex. 2, 3. This

22 coercion constitutes an injury sufficient to satisfy the Article III case or controversy

23 requirement. Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *59

24

25

3 Defendants’ cases do not say otherwise. Chen v. Schiltgen, No. C-94-4094 MHP, 1995 U.S. Dist. LEXIS 7352, *13 (N.D. Cal. May 19, 1995) (no private right of action to

26

enforce an executive order, not challenge its constitutionality as Richmond does here); Legal Aid Society of Alameda County v. Brennan, 608 F.2d at 1319 (holding executive

27

order “ha[d] the force of law” and was subject to judicial review); United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) (construing a policy memorandum issued

28 by the Deputy Attorney General, not an executive order).

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1 (“Because they argue that the Executive Order seeks to undermine this judgment by

2 attempting to compel them to change their policies and enforce the Federal government’s

3 immigration laws in violation of the Tenth Amendment, their claims implicate a

4 constitutional interest.”); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

5 Barez, 458 U.S. 592, 601 (1982) (states have a sovereign interest in “the power to create

6 and enforce a legal code”).

7

Moreover, the Supreme Court has made clear that “where threatened action by

8 government is concerned, we do not require a plaintiff to expose himself to liability before

9 bringing suit to challenge the basis for the threat—for example, the constitutionality of a

10 law threatened to be enforced.” MedImmune, Inc. v. Genentech, 549 U.S. 118, 128-29

11 (2007). “[A]n individual facing enforcement action may establish standing by

12 demonstrating a well-founded fear of enforcement and a threatened injury that is

13 ‘sufficiently real and imminent.’ One may also establish standing by demonstrating that a

14 well-founded fear of enforcement action is itself causing present injury.” Cnty. of Santa

15 Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *43 (citing O’Shea v. Littleton, 414

16 U.S. 488, 496 (1974)); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393

17 (1988); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 385 (1926)).

18

Here, Richmond alleges that it has a well-founded fear of enforcement under the

19 Executive Order based on policy decisions it has made because: Richmond has a

20 constitutional interest in making this policy decision (¶¶ 62-65); under Richmond’s

21 reasonable interpretation of the Executive Order, Defendants intend to enforce it against

22 the city (¶ 86); the Executive Order threatens to withhold needed federal funds from

23 Richmond (¶¶ 79-83); and Richmond is suffering injury in the form of significant budget

24 uncertainty (¶¶ 84-85). Further, the Department of Justice has identified California as a

25 jurisdiction that does not fully comply with federal immigration enforcement policies.

26 ¶ 31; see also ¶ 30 (discussing Cal. Govt. Code §§ 7282 and 7282.5 regarding the

27 information California law enforcement officials can provide to federal immigration

28 officials). The Executive Order directly affects Richmond by attempting to coerce it to

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1 change its policies regarding cooperation with immigration enforcement. ¶¶ 3, 78, 92, 93,

2 Ex. 2, 3. These allegations are sufficient to allege standing. Cnty. of Santa Clara v.

3 Trump, 2017 U.S. Dist. LEXIS 62871, at *67-68; Organized Village of Kake v. U.S. Dep’t

4 of Agric., 795 F.3d 956, 965 (9th Cir. 2015).

5

2. Richmond’s Claims Are Ripe

6

Richmond’s claim is also ripe. “The constitutional component of ripeness overlaps

7 with the ‘injury in fact’ analysis for Article III standing.” Wolfson v. Brammer, 616 F.3d

8 1045, 1058 (9th Cir. 2010). With respect to prudential ripeness, the Supreme Court has

9 questioned the “continuing vitality of the prudential ripeness doctrine” in light of courts’

10 “virtually unflagging” obligation to “decide cases within [their] jurisdiction.” Susan B.

11 Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014). In any event, this Court has

12 already held that such challenges to the constitutionality of the Executive Order “as

13 written” are prudentially ripe and that “a decision to enforce it sparingly cannot impact

14 whether it is unconstitutional on its face. [Such] claims do not require further factual

15 development, are legal in nature, and are brought against a final Executive Order. They are

16 fit for review.” Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *71.

17

The Complaint sufficiently shows that the Executive Order has caused and will

18 cause Richmond constitutional injuries by violating the separation of powers doctrine and

19 depriving it of its Tenth and Fifth Amendment rights (¶¶ 86, 107-113), but also because

20 the Executive Order has caused substantial budget uncertainty and coercion by threatening

21 to deprive it of millions of dollars in federal money that support core services (¶¶ 3, 78,

22 84-85, 92, 93). These allegations are sufficient to show ripeness. Cnty. of Santa Clara v.

23 Trump, 2017 U.S. Dist. LEXIS 62871, at *90-92; Shell Offshore, Inc. v. Greenpeace, Inc.,

24 709 F.3d 1281, 1286–87 (9th Cir. 2013) (likelihood of success on the merits and

25 irreparable harm “necessarily establish[ed] . . . standing to seek injunctive relief.”).

26

D. Richmond Alleges a Viable Claim under the Tenth Amendment

27

Richmond’s first claim for relief is for injunctive and declaratory relief based upon

28 the violation of the Tenth Amendment. ¶¶ 88-95. The Tenth Amendment preserves

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1 state and local government sovereignty and limits the federal government’s ability to

2 control local governments’ actions. Under the Tenth Amendment, “Congress may not

3 simply commandeer the legislative process of the States by directly compelling them to

4 enact and enforce a federal regulatory program.” New York v. United States, 505 U.S.

5 144, 161, 112 S. Ct. 2408 (1992) (internal quotation omitted). Defendants do not, and

6 cannot, dispute that the Tenth Amendment applies to Richmond. Printz v. United States,

7 521 U.S. 898, 931, n. 15, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997); City of Santa Cruz

8 v. Gonzales, No. C 03-01802 JF, 2007 U.S. Dist. LEXIS 66414 (N.D. Cal. Aug. 30,

9 2007).

10

As the Complaint explains, the Executive Order violates the Tenth Amendment

11 because: it requires that Richmond “detain individuals who may be subject to removal at

12 the request of federal officials even if those individuals would otherwise be subject to

13 release from custody” (¶ 91); Richmond must “avoid preventing or hindering the federal

14 government in the enforcement of Federal law” (¶ 92); the Executive Order

15 “impermissibly seeks to interfere with Richmond’s policy decisions in enacting

16 Ordinance No. 29-90 and Resolution No. 11-07, which further legitimate local concerns

17 and interests” (¶ 93); and the Executive Order interferes with Richmond’s ability to

18 budget (¶ 94). These allegations are sufficient to allege a violation of the Tenth

19 Amendment because the Executive Order interferes with Richmond’s right to make its

20 own policies. See Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *80-

21 84.

22

E. Richmond Alleges a Viable Claim under the Separation of Powers and

Spending Clause

23

24

Richmond’s second claim for relief is for injunctive and declaratory relief based on

25 the separation of powers and the Spending Clause. ¶¶ 96-101. The gravamen of the claim

26 is that the “President does not have the authority to issue the Executive Order because the

27 Executive Order is not authorized by the Constitution or Congress.” ¶ 100. Nothing in

28 the Attorney General Memorandum identifies any constitutional or congressional

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1 authority that provided President Trump with the authority to issue the Executive Order.

2 Accordingly, the Attorney General Memorandum fails to demonstrate that Richmond does

3 not allege a claim under separation of powers.

4

1. Richmond States a Viable Claim under the Separation of

Powers 5

Richmond alleges a claim for violation of the separation of powers. “Article I of

6

the Constitution grants Congress the federal spending powers. See U.S. Const. art. I, § 8,

7

cl. 1. “After a bill becomes law, the President is required to ‘take care that the law be

8

faithfully executed.’ See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give

9

the President discretion in allocating funds, the President has no constitutional authority to

10

withhold such funds and violates his obligation to faithfully execute the laws duly enacted

11

by Congress if he does so. See [Clinton v.] City of N.Y., 524 U.S. [417,] at 439, [118 S.

12

Ct. 2091 (1998)]; U.S. Const. art. I, § 8, cl. 1.” Cnty. of Santa Clara v. Trump, 2017 U.S.

13

Dist. LEXIS 62871, at *74 (bracketed material added).

14

The Executive Order, as explained by this Court, violates the separation of powers:

15

16

The Executive Order runs afoul of these basic and fundamental constitutional

structures. The Order’s stated purpose is to “ensure that jurisdictions that fail to

17

comply with applicable Federal law do not receive Federal funds, except as

18

mandated by law.” EO §2. To effectuate this purpose, the Order directs that “the Attorney General and the Secretary, in their discretion and to the extent consistent

19

with law, shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,

20

except as deemed necessary for law enforcement purposes by the Attorney General

21

or the Secretary.” EO §9(a). Section 9 purports to give the Attorney General and

the Secretary the power to place a new condition on federal funds (compliance with

22

Section 1373) not provided for by Congress. But the President does not have the

23

power to place conditions on federal funds and so cannot delegate this power.

24

Section 9 is particularly problematic as Congress has repeatedly, and frequently,

declined to broadly condition federal funds or grants on compliance with Section

25

1373 or other federal immigration laws as the Executive Order purports to do. See,

26

e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop

Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous

27

Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary Policies and

Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s 28

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1

power “at its lowest ebb.” Youngstown [Sheet & Tube Co. v. Sawyer], 343 U.S.

2

[579], 637 [(1952)]. The Order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a

3

violation of the Constitution’s separation of powers principles.

4 Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *75-76 (bracketed

5 material added).

6

Richmond sufficiently alleges the violation of the separation of powers in the

7 Complaint. Paragraphs 68 and 69 explain that the President does not have the authority to

8 issue the Executive Order because it was not authorized by any act of Congress or the

9 Constitution. Paragraphs 96 through 101 allege the violation of the separation of powers

10 violation and seek relief. While Defendants argue, Def. Mem. at 15:18-19, that “Congress

11 has frequently authorized agencies administering certain grant programs to impose

12 discretionary conditions on the receipt of funds,” they only identify three programs, id. at

13 15:23-27, and the Executive Order by its express terms applies to “all federal funds.” ¶¶

14 3, 4, 6, 62, 72-73, 84, 86, Ex. 1, § 2. Further, Defendants introduce no evidence that any

15 of these three grants have imposed these conditions on the grantee. Further, Defendants

16 do not show that the Executive Order does not apply to Richmond. And even if they did,

17 this motion is a motion to dismiss, where Richmond’s allegations are accepted as true and

18 factual disputes (if any there were) are not resolved here.

19

2. Richmond States a Viable Claim under the Spending

20

Clause

21

Richmond also sufficiently alleges a violation of the Spending Clause. “While

22 Congress has significant authority to encourage policy through its spending power, the

23 Supreme Court has articulated a number of limitations to the conditions Congress can

24 place on federal funds. The Executive Order violates at least three of these restrictions: (1)

25 conditions must be unambiguous and cannot be imposed after funds have already been

26 accepted; (2) there must be a nexus between the federal funds at issue and the federal

27 program’s purpose; and (3) the financial inducement cannot be coercive.” Cnty. of Santa

28 Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at *76-77.

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1

Richmond alleges that: Congress did not impose unambiguous conditions (¶¶ 110-

2 112); there is no nexus between all federal funds and the purpose of the Executive Order

3 (¶ 72); and the financial inducement is coercive (¶ 85). Accordingly, Richmond has stated

4 a claim under the Spending Clause.

5

F. Richmond States a Viable Claim under the Fourth Amendment

6

In its Third Claim, Richmond sufficiently alleges a claim under the Fourth

7 Amendment. ¶¶ 102-106.

8

“Several courts have held that it is a violation of the Fourth Amendment for local

9 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests

10 because civil detainer requests are often not supported by an individualized determination

11 of probable cause that a crime has been committed.” Cnty. of Santa Clara v. Trump, 2017

12 U.S. Dist. LEXIS 62871, at *20-21 (citing Morales v. Chadbourne, 793 F.3d 208, 215-

13 217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014

14 U.S. Dist. LEXIS 50340, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014)); see also

15 Orellana v. Nobles Cnty., No. 15-3852 ADM/SER, 2017 U.S. Dist. LEXIS 2438, at *23-

16 24 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 165 F. Supp. 3d 861, 887 (N.D. Cal. 2016).

17 Congress’ spending power “may not be used to induce the States to engage in activities

18 that would themselves be unconstitutional.” S.D. v. Dole, 483 U.S. 203, 210, 107 S. Ct.

19 2793 (1987).

20

The Complaint alleges facts to support its claim that the Executive Order violates

21 the Fourth Amendment: “The Executive Order requires Richmond to keep people in

22 custody who would otherwise be released. Richmond and its law enforcement officials

23 will not have probable cause to keep these people in custody. [¶] Therefore, Richmond

24 may be liable under the Fourth Amendment for honoring an ICE civil detention request.

25 Further, the federal government has made clear that Richmond will bear all responsibility

26 for the additional detention costs and potential liability.” ¶¶ 104-105 (citations omitted).

27 These facts support a claim for violation of the Fourth Amendment.

28

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1

Even if the Court considers the Attorney General Memorandum, which it should

2 not do, the Memorandum does not change this analysis. Nothing in the Attorney General

3 Memorandum contradicts Richmond’s allegations, which must be accepted as true on a

4 motion to dismiss, that the “Executive Order requires Richmond to keep people in custody

5 who would otherwise be released” and thus subjects them to liability under the Fourth

6 Amendment. ¶¶ 104, 105. Accordingly, Richmond has pled a claim for violation of the

7 Fourth Amendment.

8

G. Richmond States a Viable Claim of Unconstitutional Vagueness under

the Due Process Clause

9

10

Richmond’s Fourth Claim for Relief seeks an injunction and declaratory relief

11 based on violations of the due process clause because of vagueness. ¶¶ 107-113. “A law

12 is unconstitutionally vague and void under the Fifth Amendment if it fails to make clear

13 what conduct it prohibits and if it fails to lay out clear standards for enforcement.” See

14 Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

15 To satisfy due process we insist that laws (1) ‘give the person of ordinary intelligence a

16 reasonable opportunity to know what is prohibited, so that he may act accordingly’ and (2)

17 ‘provide explicit standards for those who apply them.’ Id.” Cnty. of Santa Clara v.

18 Trump, 2017 U.S. Dist. LEXIS 62871, at *84.

19

Richmond sufficiently alleges this claim. Specifically, the Complaint alleges:

20

110. The Executive Order is unconstitutionally vague and, therefore,

21

unconstitutional. It fails to define key terms, such as “sanctuary jurisdiction” and

the term is not defined in any federal law or regulation. Although Richmond and

22

numerous other jurisdictions have been referred to as “sanctuary cities,” there is no

23

common definition of a sanctuary city and there are differences between the

ordinances and policies of the different jurisdictions referred to as “sanctuary

24

cities.” The fact that a public entity has been referred to as a sanctuary city or that

25

it has enacted legislation about immigration policies does not mean that it is a “sanctuary jurisdiction” under the Executive Order. No jurisdiction can determine

26

by the language of the Executive Order if it is a “sanctuary jurisdiction” subject to

the Executive Order. 27

28

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1

111. The Executive Order is also unconstitutionally vague and, therefore,

2

unconstitutional, because it does not define what actions or inactions constitute “willful refusal to comply with 8 U.S.C. § 1373.” The Executive Order gives

3

unfettered discretion to the Attorney General and Secretary of Homeland Security

without providing any rules or guidance on how that discretion should be exercised.

4

The Executive Order is, therefore unconstitutionally vague. United States v.

5

Williams, 553 U.S. [285] at 304 [(2008)]; Grayned v. City of Rockford, 408 U.S. at

108. The Executive Order is impermissibly vague because it allows resolution on

6

an ad hoc and subjective basis, with the attendant dangers of arbitrary and

7

discriminatory application. See Grayned v. City of Rockford, 408 U.S. at 109.

8

112. An additional reason that the Executive Order is unconstitutionally vague is

that it does not define what is meant by the phrase: “Ensure that jurisdictions that

9

fail to comply with applicable Federal law do not receive Federal funds, except as

10

mandated by law.” Richmond does not know, with respect to the Executive Order,

what “applicable Federal law means.” There is no way for Richmond to know

11

whether the “applicable Federal law” is only 8 U.S.C. § 1373, all immigration laws

12

or all federal laws.

¶¶110-112 (bracketed material added); see also ¶¶ 4, 5, 86. 13

This Court has properly held that the Executive Order is likely to be found void for 14

vagueness for these reasons. Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 15

62871, at *84-87. Accordingly, Richmond has pled a claim for violation of the due 16

process clause because of vagueness. 17

The Attorney General’s Memorandum does not cure the facial vagueness of the 18

Executive Order. As discussed above, Defendants cannot cure a facially unconstitutional 19

law by adopting an unreasonable narrowing interpretation. Valle del Sol Inc. v. Whiting, 20

732 F.3d 1006, 1021-22 (9th Cir. 2013) (rejecting the argument that a defendant can cure 21

a facially unconstitutional law by adopting an unreasonable narrowing interpretation). 22

Further, as a factual matter, the Attorney General Memorandum does not cure the 23

Executive Order’s vagueness. This memo does not clarify what it means to “willfully 24

refuse to comply” with Section 1373; thus “[i]n the face of conflicting guidance, and no 25

clear standard from the Government, jurisdictions do not know how to avoid the Order’s 26

defunding penalty.” Cnty. of Santa Clara v. Trump, 2017 U.S. Dist. LEXIS 62871, at 27

*84-85. It also fails to clarify the effect of the declined civil detainer requests referenced 28

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1 in Section 9(b), how the Department of Homeland Security will apply the funding

2 restriction, or how the Department of Justice will apply the Executive Order’s

3 enforcement provision in Section 9(a). Thus, even considering the Attorney General

4 Memorandum, the Executive Order remains unconstitutionally vague. United States v.

5 Williams, 553 U.S. 285, 304, 128 S. Ct. 1830 (2008).

6

H. Richmond States a Viable Claim for Declaratory Relief regarding Its

Compliance with 8 U.S.C. § 1373

7

8

Richmond states a viable claim for declaratory relief regarding its compliance with

9 8 U.S.C. § 1373 despite Defendants’ argument, Def. Mem. 22:13-23:2, that this Court

10 does not have jurisdiction and Richmond does not have the right to declaratory relief. ¶¶

11 67, 114-117. Defendants are incorrect because Richmond alleges that it believes that it

12 complies with the statute, but Defendants contend otherwise thus establishing an actual

13 controversy. ¶¶ 115-116. Since the Executive Order conditions federal funding on

14 compliance with 8 U.S.C. § 1373, Richmond faces the loss of federal funding if it is

15 found to willfully refuse to comply with the statute. ¶ 3.

16

Thus, Richmond identifies a right under which it is entitled to relief. “Under the

17 Declaratory Judgment Act, any court of the United States may declare the rights and other

18 legal relations of any interested party seeking such declaration, whether or not further

19 relief is or could be sought. Any such declaration shall have the force and effect of a final

20 judgment or decree and shall be reviewable as such.” United States v. Washington, 759

21 F.2d 1353, 1363 (9th Cir. 1985) (citing 28 U.S.C. § 2201). “The Supreme Court has

22 explained, ‘[b]asically, the question in each case is whether the facts alleged, under all the

23 circumstances, show that there is a substantial controversy, between parties having

24 adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

25 declaratory judgment.’” Northfield Ins. Co. v. Civic Ctr. Hotel, LLC, No. 3:16-cv-06056-

26 WHO, 2017 U.S. Dist. LEXIS 33328, at *13-14 (N.D. Cal. Mar. 8, 2017) (quoting

27 Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed.

28 826 (1941)). Richmond alleges that it faces the loss of all federal funds if Defendants

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1 conclude that it willfully fails to comply with 28 U.S.C. § 1373. Richmond has standing,

2 its claims are ripe, and thus it meets the requirement for declaratory relief. Khan v. K2

3 Pure Sols., LP, No. 12-cv-05526-WHO, 2013 U.S. Dist. LEXIS 126347, at *10 (N.D. Cal.

4 Sep. 3, 2013). As previously demonstrated, Richmond has standing because it has

5 demonstrated that Defendants may take away federal funds from Richmond and it has

6 suffered injury. ¶¶ 4-6, 79-85, 87, 92, 112. Therefore, it properly seeks a declaration that

7 it complies with 8 U.S.C. § 1373.

8

Defendants also contend that this claim fails because there is no live, concrete

9 controversy regarding whether Richmond complies with section 1373. Mem. at 23:3-14.

10 Tellingly, Defendants could easily make this claim unnecessary by stating that they do not

11 contend that Richmond fails to comply with 8 U.S.C. § 1373. However, they make no

12 such statement. As Richmond demonstrates, based upon its policies as set out in an

13 ordinance and regulation, the plain language of the Executive Order, and Defendants’

14 statements, Richmond is reasonable in its understand that Defendants believe that it

15 willfully violates 8 U.S.C. § 1373. Accordingly, Richmond has stated a claim for

16 declaratory relief regarding whether it complies with 8 U.S.C. § 1373.

17

VI. CONCLUSION

18

For the reasons set forth above, Richmond respectfully requests that the Court deny

19 Defendants’ motion to dismiss in its entirety, or in the alternative if the motion is granted,

20 provide Richmond an opportunity to amend the complaint.

21 22
Dated: June 22, 2017 23 24 25 26 Dated: June 22, 2017 27 28

Respectfully submitted,
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Nancy L. Fineman NANCY L. FINEMAN Attorneys for Plaintiff
CITY OF RICHMOND
By: /s/ Bruce Reed Goodmiller BRUCE REED GOODMILLER Attorneys for Plaintiff

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO 22

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ATTESTATION OF FILING

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I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California,

3 Local Rule 5-1(i)(3) that concurrence to the filing of this document has been obtained

4 from each signatory hereto.

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/s/ Nancy L. Fineman

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NANCY L. FINEMAN Attorney for Plaintiff

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Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS; 3:17-cv-01535-WHO 23

 
 Case 3:17-cv-01535-WHO Document 34 Filed 06/29/17 Page 1 of 28

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE NORTHERN DISTRICT OF CALIFORNIA
13

14

SAN FRANCISCO DIVISION

15 CITY AND COUNTY OF SAN
FRANCISCO,

16

Plaintiff,

v.
17

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DONALD J. TRUMP, et al., Defendants.

19

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COUNTY OF SANTA CLARA, Plaintiff,

21

v.

REPLY IN SUPPORT OF DEFENDANTS’ MOTIONS TO DISMISS

Date: Time:

July 12, 2017 2:00 p.m.

No. 3:17-cv-00485-WHO

22 DONALD J. TRUMP, et al.,
Defendants.
23

No. 3:17-cv-00574-WHO

24 CITY OF RICHMOND,

Plaintiff,

25

v.

26 DONALD J. TRUMP, et al.,

27

Defendants.

No. 3:17-cv-01535-WHO

28

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1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES ......................................................................................................... iii

4 INTRODUCTION .......................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 2

6

I. The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch........................................................ 2

7

A. The AG Memorandum Is a Formal, Authoritative Statement..................... 2

8

B. The AG Memorandum Is Consistent With the

9

Executive Order .......................................................................................... 3

10

C. The AG Memorandum Carries Out Rather than Detracts from the Order’s Intended Effect ................................................................ 5

11

D. The Timing of the AG Memorandum Does Not

12

Undermine Its Authoritativeness................................................................. 6

13

II. Plaintiffs Lack Standing and Their Claims Are Unripe .......................................... 6

14

III. Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and

15

Does Not Necessarily Directly Affect the Plaintiffs ............................................... 9

16

IV. Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum ............................. 10

17

A. Plaintiffs Must Establish that the Grant Eligibility Provision

18

Is Unconstitutional in All Applications .................................................... 11

19

B. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers........................... 13

20

C. Plaintiffs Fail to State a Viable Claim that the Grant

21

Eligibility Provision Exceeds the Spending Power................................... 14

22

D. Richmond and San Francisco Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment ............... 16

23

E. Richmond and Santa Clara County Fail to State a Viable Claim

24

of Unconstitutional Vagueness under the Due Process Clause................. 17

25

F. Santa Clara County Fails to State a Viable Claim Regarding Procedural Due Process ........................................................... 18

26
G. Richmond Fails to State a Viable Claim

27

Under the Fourth Amendment .................................................................. 19

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1

V. Richmond and San Francisco Fail to State a Viable Claim for

Declaratory Relief Regarding Their Compliance with Section 1373 ................... 20

2

CONCLUSION ............................................................................................................................. 21

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1

TABLE OF AUTHORITIES

2
CASES
3
4 Abel v. United States, 362 U.S. 217 (1960) .................................................................................. 20

5 Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) ..................................................................... 17

6 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 6

7 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) .......................................................... 19

8
Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ................. 9
9
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015)..................................................................... 12
10

11

Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ............................................................................. 7

12
Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983)............................................................................. 19

13

Fox-Quamme v. Health Net Health Plan of Or., Inc., No. 3:15-CV-01248-BR,

14

2016 WL 1724358 (D. Or. Apr. 29, 2016) ................................................................................ 20

15 Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) ........................................................................... 8

16
Gonzales v. Carhart, 550 U.S. 124 (2007) .................................................................................... 13
17
Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) .................................................... 3
18
19 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ..................... 17

20 Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) .................................. 13

21 Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) ................................................................. 16

22 Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) ................................................... 11, 12

23 Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319 (9th Cir. 1979)................................. 9
24
Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065 (9th Cir. 1999) ................................ 4
25
La. Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016).............................. 7
26
27 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 15

28 Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ..................................... 16

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1

Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427

2

(N.D. Cal. Oct. 10, 2012)........................................................................................................... 20

3
Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 7
4
New York v. United States, 505 U.S. 144 (1992) ........................................................................... 15
5
6 Planned Parenthood Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016) ...................... 6

7 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 14

8 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................. 7

9 United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) .......................................................... 3

10 United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................... 9
11
United States v. Salerno, 481 U.S. 739 (1987) .............................................................. 1, 11, 17, 20
12
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013)......................................................... 18
13
14 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................ 17

15 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 12

16 Williams v. Cty. of Alameda, 26 F. Supp. 3d 925 (N.D. Cal. 2014) ................................................ 6

17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................................... 10 18

19 STATUTES

20 8 U.S.C. § 1103(a)(1) ................................................................................................................. 3, 14

21 8 U.S.C. § 1226 .............................................................................................................................. 20
22
8 U.S.C. § 1231 .............................................................................................................................. 20
23
28 U.S.C. § 512 ............................................................................................................................ 2, 3
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28 U.S.C. § 516 ................................................................................................................................ 3
25

26 REGULATIONS

27
2 C.F.R. § 200.341 ......................................................................................................................... 19
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1 28 C.F.R. § 0.5(c)............................................................................................................... 1, 2, 3, 14

2 28 C.F.R. pt. 18 .............................................................................................................................. 19 3 4 EXECUTIVE ORDERS

5 Exec. Order No. 10,340, 17 Fed. Reg. 3139 (1952) ...................................................................... 10

6 Exec. Order No. 13,129, 64 Fed. Reg. 36,759 (1999) ................................................................... 10

7 Exec. Order No. 13,466, 73 Fed. Reg. 36,787 (2008) ................................................................... 10
8
Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (2017) ................................................. 4, 5, 11, 13, 15
9

10 OTHER AUTHORITIES

11 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim 12

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1

INTRODUCTION

2

Plaintiffs devote much of their opposition briefs to attempting to undermine the Attorney

3 General’s Memorandum of May 22, 2017 (“AG Memorandum”). This is perhaps unsurprising

4 given the Memorandum’s conclusive effect. As an authoritative statement on the key provisions

5 of Executive Order 13,768, the AG Memorandum eliminates the supposed “budgetary uncer-

6 tainty” on which Plaintiffs primarily base their assertions of standing and ripeness. The AG

7 Memorandum also bolsters the conclusion that the Executive Order is consistent with the

8 Constitution.

9

Indeed, the AG Memorandum is authoritative because it is a formal statement by the

10 Cabinet official responsible for “[f]urnish[ing] advice and opinions . . . on legal matters to the

11 President and the Cabinet and to the heads of the executive departments and agencies of the

12 Government.”1 Every aspect of the AG Memorandum is supported by language in the Executive

13 Order, the goal of which is to establish a policy of faithful enforcement of federal immigration

14 law. Consistent with that purpose, the AG Memorandum clarifies that the grant eligibility

15 provision in Section 9(a) of the Order will be applied only where the Department of Justice and

16 the Department of Homeland Security are statutorily authorized to do so. In short, the Executive

17 Order and the AG Memorandum simply apply existing law.

18

Especially in light of the AG Memorandum, the Executive Order is consistent with the

19 constitutional Separation of Powers, the Spending Clause, the Tenth Amendment, and the other

20 constitutional provisions cited in Plaintiffs’ complaints. This is especially true given that Plain-

21 tiffs challenge the Order on its face, “the most difficult challenge to mount successfully.” In this

22 context, plaintiffs “must establish that no set of circumstances exists under which the [challenged

23 enactment] would be valid.”2 Plaintiffs cannot, however, show that the grant eligibility provision

24 would violate the Constitution in all of its applications. Nor have San Francisco or Richmond

25 identified a right of action to seek a judicial declaration that they comply with 8 U.S.C. § 1373.

26 Finally, there is no live controversy regarding whether they comply with that statute.

27

28

1 28 C.F.R. § 0.5(c).

2 United States v. Salerno, 481 U.S. 739, 745 (1987).

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1

Accordingly, Plaintiffs’ claims should be dismissed.

2
3
I.
4

ARGUMENT
The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch

5

A. The AG Memorandum Is a Formal, Authoritative Statement

6

Plaintiffs attempt to equate the AG Memorandum with the representations of Defendants’

7 counsel at oral argument on the motions for preliminary injunction, asserting that the Memoran-

8 dum “merely reduces that same . . . argument to writing” (SC Opp. at 9; see Richmond Opp. at 9;

9 SF Opp. at 16). They also argue that the Court has already rejected the “reading” of the Execu-

10 tive Order conveyed in the AG Memorandum (SF Opp. at 16; Richmond Opp. at 8).

11

Plaintiffs fail to acknowledge, however, that the AG Memorandum and the representations

12 of counsel are fundamentally different. Counsel for Santa Clara County made this very point at

13 oral argument: “[W]ith all deference, what a Justice Department lawyer down the food chain

14 says, without a declaration, without an affidavit, without any binding effect, is not something that

15 you should consider . . . . I didn’t hear that Attorney General Sessions had signed off to this new

16 interpretation.” Tr. of Oral Arg. at 11:9-12, 46:1-3, City & Cnty. of San Francisco v. Trump, No.

17 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017).

18

The AG Memorandum is far more than the representation of “a Justice Department lawyer

19 down the food chain.” Nor does it merely “repeat” counsel’s representations “in a written form,”

20 as might a letter from counsel (SC Opp. at 1; Richmond Opp. at 9).3 Rather, the AG Memoran-

21 dum is a formal, authoritative statement by a member of the President’s Cabinet, and the single

22 official ultimately responsible for “[f]urnish[ing] advice and opinions, formal and informal, on

23 legal matters to the President and the Cabinet and to the heads of the executive departments and

24 agencies of the Government.” 28 C.F.R. § 0.5(c); see 28 U.S.C. § 512 (Attorney General’s duty

25
3 Even if the AG Memorandum adopted the arguments of counsel in their entirety, its

26 independent legal authority would be unaffected. The fact that counsel have interpreted the

Executive Order consistent with subsequent formal guidance from the Attorney General does not
27 in any way undermine the legitimacy or authority of that guidance. In other words, the fact that

28

the Department of Justice has spoken consistently about the meaning and effect of Executive Order 13,768 is not a credible argument against the AG Memorandum.

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1 to advise executive department heads on “questions of law”). The Attorney General is the “chief

2 legal advisor” to the President, United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976),

3 and one of the two officials charged with implementing Section 9 of the Executive Order.

4 Moreover, the statute that sets forth the “powers and duties” of the Secretary of Homeland

5 Security – the other official charged with implementing Section 9 – provides that a

6 “determination and ruling by the Attorney General with respect to all questions of law shall be

7 controlling.” 8 U.S.C. § 1103(a)(1).4 Finally, the Attorney General is responsible for

8 representing almost all federal agencies in litigation, 28 U.S.C. § 516, such that any position

9 taken by an agency contrary to the Attorney General’s guidance may not be defended in

10 litigation.

11

Plaintiffs argue that 28 U.S.C. § 512 and 28 C.F.R. § 0.5(c) cannot apply here because the

12 Attorney General has delegated his authority thereunder to the Office of Legal Counsel (SF Opp.

13 at 18; Richmond Opp. at 11). But “it is well established that the head of an agency retains the

14 authority to make final decisions for the agency even if he or she delegates the authority to make

15 these decisions to his or her subordinates.” Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1, 9

16 (D.D.C. 2000). Plaintiffs also argue that these statutory and regulatory provisions do not apply

17 here because the AG Memorandum does not contain “legal analysis” (SF Opp. at 17; Richmond

18 Opp. at 11), but there is no indication in 28 U.S.C. § 512 or 28 C.F.R. § 0.5(c) that an opinion

19 thereunder must contain any particular kind of “analysis.”

20

B. The AG Memorandum Is Consistent With the Executive Order

21

Next, Plaintiffs argue that the AG Memorandum sets forth an “implausible interpretation”

22 or “reading” of the Executive Order (SC Opp. at 8; SF Opp. at 16) that “contradicts” the Order’s

23 “plain language” (Richmond Opp. at 2). To the contrary, the Attorney General’s statements on

24 the meaning and implementation of Section 9(a) are fully supported by the language of the Order.

25

26

4 The fact that 8 U.S.C. § 1103 is the statute that generally sets forth the Secretary’s
27 powers and duties belies plaintiffs’ assertion that the Attorney General’s authority relates only to

28

“interpreting the INA” or ruling on “a question of immigration law” (SC Opp. at 10; SF Opp. at 18).

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1

First, the AG Memorandum provides that the grant eligibility provision applies “solely to

2 federal grants administered by the Department of Justice or the Department of Homeland

3 Security, and not to other sources of federal funding.” AG Mem. at 1. This is based on the

4 President’s instruction that “the Attorney General and the Secretary, in their discretion and to the

5 extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

6 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants.” Exec. Order No.

7 13,768, § 9(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) (emphasis added). If the President had

8 intended to apply that provision to all federal agencies or to all federal grants, he would have said

9 “all federal agencies, in their discretion and to the extent consistent with law,” or “not eligible to

10 receive any Federal grants,” respectively. Nor can it be assumed that the President intended the

11 Attorney General to enforce such a prohibition across all federal agencies; if that had been the

12 intent, there would have been no need to include the Secretary in the same sentence.

13

Further, the fact that Section 2(c) of the Order refers more generally to “Federal funds,”

14 whereas Section 9(a) refers to “Federal grants,” supports the Attorney General’s conclusion that

15 the grant eligibility provision applies only to the latter (SC Opp. at 9; Richmond Opp. at 16). If

16 the President had intended Section 9(a) to apply to all types of federal funding rather than only

17 grants, he would have repeated the term “Federal funds” in Section 9 rather than changing it to

18 “grants.” Cf. Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999)

19 (referring to “basic principle of statutory construction that different words in the same statute

20 must be given different meanings”).

21

Second, the AG Memorandum provides that the Department of Justice (“DOJ”) will

22 require jurisdictions applying for certain DOJ-administered grants “to certify their compliance

23 with federal law, including 8 U.S.C. § 1373,” but only where the agency is “statutorily authorized

24 to impose such a condition.” AG Mem. at 2. This is based on the President’s instruction that

25 compliance with Section 1373 be imposed as a grant condition “to the extent consistent with

26 law.” Exec. Order No. 13,768, § 9(a). That phrase would have been unnecessary – and self-

27 defeating – if the President had intended to impose a grant condition without regard to existing

28 law. Moreover, although the Order does not expressly authorize the Attorney General and the

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1 Secretary to require certification of compliance, that method of “ensuring” non-payment of grant

2 funds to non-compliant jurisdictions is logical and certainly within the “discretion” conferred by

3 the Order.5

4

Third, the AG Memorandum states that “[a]ll grantees will receive notice of their

5 obligation to comply with section 1373.” AG Mem. at 2. This language, too, is based on the

6 instruction to impose this grant condition “to the extent consistent with law.” Exec. Order No.

7 13,768, § 9(a). That phrase would have been superfluous if the President had wanted the

8 Attorney General and the Secretary to disregard the well-established procedures of federal grant-

9 making.6

10

C. The AG Memorandum Carries Out Rather than Detracts

11

from the Order’s Intended Effect

12

Further, Plaintiffs contend that the Court must not credit the AG Memorandum because a

13 directive “merely . . . to exercise authority conferred by other laws” would be without “legal

14 force” (SF Opp. at 1, 17; see Richmond Opp. at 8). In Plaintiffs’ view, an Executive Order that

15 instructs federal agencies to carry out their responsibilities under existing law would be

16 “meaningless” (SC Opp. at 9).

17

Far from it. Executive Order 13,768 was necessary precisely because the Federal

18 Government previously had failed to “exercise authority conferred by other laws.” As stated in

19 the Order itself, federal agencies had “failed to discharge” their responsibilities under the

20 immigration laws “to ensure the removal of aliens who have no right to be in the United States.”

21 Exec. Order No. 13,768, § 1. Thus, the express purpose of the Order is to “direct executive

22 departments and agencies . . . to employ all lawful means to enforce the immigration laws of the

23

5 Santa Clara County asserts that the AG Memorandum is contradicted by the Attorney

24

General’s statement that DOJ will “take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373” (SC Opp. at 10; SF Dkt. No. 116-3 at 3). But a grantee’s

25 false certification of compliance with Section 1373 would constitute violation of the grant
conditions, potentially requiring a return of funds.

26

6 Nor does the AG Memorandum contradict Section 9(c) of the Order (SC Opp. at 9). The

President can direct the Office of Management and Budget to gather and disseminate information
27 regarding recipients of all federal grants for possible later attention or to affect public perception

28

and opinion, while directing specific agencies to use their discretion to impose conditions on certain federal grants, where statutorily authorized.

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1 United States.” Id. In other words, the Order reversed the policy of prior administrations and,

2 among other things, established a policy of “ensur[ing], to the fullest extent of the law, that a

3 State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373” and other federal

4 statutes. Id. § 9; see Arizona v. United States, 567 U.S. 387, 446 (2012) (noting that

5 “immigration enforcement priorities . . . change from administration to administration”).

6

Accordingly, the AG Memorandum effectuates the intent of the Executive Order – that is,

7 to direct agencies to exercise existing legal authorities – rather than “abandon[ing]” the Order (SF

8 Opp. at 1).

9

D. The Timing of the AG Memorandum Does Not

10

Undermine Its Authoritativeness

11

Lastly, Plaintiffs attack the authoritativeness of the AG Memorandum on the basis that it

12 was issued in the course of litigation and allegedly at the “last minute” (SF Opp. at 4, 19; SC

13 Opp. at 4, 12). But the timing of the Memorandum is irrelevant. The fact that it was issued

14 during the course of litigation is attributable to the premature timing of this litigation, not to the

15 Attorney General’s timing. The President signed the Executive Order on January 25, 2017, and

16 the first plaintiff – San Francisco – filed its original complaint six days later, on January 31. The

17 Order required the Attorney General to take various actions to implement Section 9(a), and, as

18 Defendants indicated in response to Plaintiffs’ motions for preliminary injunctions and in the

19 hearing on those motions, those actions had not yet been completed at the time of the hearing.

20 The fact that the Attorney General took action during the course of this ongoing litigation, in the

21 form of the AG Memorandum, does nothing to detract from the authoritativeness of the

22 Memorandum.

23 II. Plaintiffs Lack Standing and Their Claims Are Unripe

24

Especially in light of the AG Memorandum, Plaintiffs have not satisfied their burden to

25 establish the justiciability of their claims.7 See Planned Parenthood Ariz., Inc. v. Brnovich, 172

26

7 San Francisco faults the Defendants (SF Opp. at 5 n.1) for incorporating arguments

made in Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the
27 Court’s Order of April 25, 2017, which is currently pending before the Court (SF Dkt. No. 107).

28

The authority on which the City relies, which criticizes the incorporation of arguments made in connection with “a motion that is not before the Court,” Williams v. Cty. of Alameda, 26

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1 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (“The plaintiff bears the burden of establishing the

2 existence of a justiciable case or controversy, and must demonstrate standing for each claim he

3 seeks to press and for each form of relief that is sought.”) (internal quotation marks omitted). As

4 San Francisco concedes, “Defendants have not . . . officially declared San Francisco a ‘sanctuary

5 jurisdiction,’ withheld any funds pursuant to the [grant eligibility provision], or initiated other

6 enforcement action against San Francisco” (SF Opp. at 6). Those concessions are fatal, and they

7 are true of all three plaintiffs in these cases.

8

The AG Memorandum confirms that Plaintiffs’ claims are non-justiciable under these

9 circumstances. The alleged “budgetary uncertainty” on which Plaintiffs primarily base their

10 assertions of present concrete injury, Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-

11 CV-00485-WHO, 2017 WL 1459081, at *17-19 (N.D. Cal. Apr. 25, 2017), evaporates because

12 (1) the grant eligibility provision will be applied only to grants administered by DOJ and the

13 Department of Homeland Security (“DHS”) where the agency has authority to require compliance

14 with 8 U.S.C. § 1373, and (2) grant applicants will receive notice of their obligation to comply

15 with the statute. See AG Mem. at 1-2. These facts also eliminate any concern that Plaintiffs will

16 be “force[d] to change [their] policies” (Richmond Opp. at 6; see SC Opp. at 11, 15; SF Opp. at

17 6).8

18

Further, the Executive Order – especially as elucidated by the AG Memorandum – does

19 not “require jurisdictions to comply with detainer requests or face loss of federal funds and other

20

21 F. Supp. 3d 925, 947 (N.D. Cal. 2014), does not apply here, since the motion for reconsideration
is “before the Court.”

22

8 Although Richmond implies that the Court need only consider the allegations in its

complaint (Richmond Opp. at 14-20), the AG Memorandum should be considered in relation to
23 both lack of jurisdiction and failure to state a claim. For example, since a motion under Rule

24

12(b)(6) “tests the legal sufficiency” of a complaint, Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), the Court should consider outside legal authorities, such as case law, regulations, and

25 the AG Memorandum, that bear upon that issue. The Court should also consider the AG
Memorandum under judicial notice, if necessary. See La. Mun. Police Employees' Ret. Sys. v.

26 Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (“The Supreme Court has instructed that courts ruling

on a motion to dismiss ‘must consider the complaint in its entirety, as well as other sources courts
27 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

28

incorporated into the complaint by reference, and matters of which a court may take judicial notice.’”) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

Reply: Motions to Dismiss

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1 enforcement action” (SF Opp. at 7). The AG Memorandum specifies that application of the grant

2 eligibility provision will turn on compliance with 8 U.S.C. § 1373, which relates only to the

3 sharing of information. See AG Mem. at 2. In any event, the Government recently confirmed its

4 position that immigration detainer requests are “voluntary.” See Br. of the United States as

5 Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651, at *22 (D. Mass. Mar.

6 27, 2017); see also Galarza v. Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014) (rejecting contention

7 that immigration detainers are mandatory). San Francisco and San Clara County argue that that

8 confirmation is contradicted by a statement in which they claim the Attorney General said that

9 “failure to comply with detainer requests violates federal law and will render jurisdictions

10 ineligible for DOJ grants under Section 1373” (SF Opp. at 7 n.3). But that is an inaccurate

11 characterization of the Attorney General’s remarks. Although he said that refusing to comply

12 with detainer requests “frustrate[s] [the] enforcement of immigration laws” and that “jurisdictions

13 seeking or applying for Department of Justice grants [would be required] to certify compliance

14 with 1373,” he did not say that non-compliance with detainer requests would constitute non-

15 compliance with Section 1373 (Dkt. 116-3, Ex. C).

16

Finally, San Francisco and Santa Clara County have not established the justiciability of

17 their challenge to the “appropriate enforcement action” provision in Section 9(a). The Defen-

18 dants have taken no enforcement action against the Plaintiffs under that provision, and there is no

19 indication that any such action is imminent. In response, San Francisco cites a few general state-

20 ments about sanctuary policies in general and the City’s policies in particular – including a

21 statement by a member of Congress (SF Opp. at 8-9). But those statements do not indicate that

22 any “enforcement action” against the City under Section 9(a) is imminent. In any event, if the

23 United States were to initiate any judicial action against one of the Plaintiffs outside of Section

24 9(a), the defendant municipality would have an opportunity at that time to challenge the propriety

25 and merits of the action.

26

27

28

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1 III. 2

Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Necessarily Directly Affect the Plaintiffs

3

Assuming Plaintiffs could show the justiciability of their claims, all of the claims

4 challenging Executive Order 13,768 should be dismissed because the Order only directs internal

5 Executive Branch policy and does not directly affect the Plaintiffs absent a finding that they have

6 violated Section 1373. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5

7 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid

8 Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979); see also United

9 States v. Pickard, 100 F. Supp. 3d 981, 1011 (E.D. Cal. 2015). San Francisco and Santa Clara

10 County attempt to distinguish Chen and Legal Aid Society of Alameda County on the basis that

11 those cases dealt with whether certain executive orders “create[d] [a] private right of action that

12 can be enforced in court,” whereas the Plaintiffs here challenge an executive order (SF Opp. at

13 13-14; see SC Opp. at 16). But both conclusions proceed from the same rationale: In each

14 situation, the order is “merely an internal directive from the President to [certain Cabinet

15 officials], instructing them to exercise their statutory authority.” Chen, 1995 WL 317023, at *6.

16 If there is no private right of action to enforce an internal directive, then there cannot possibly be

17 a private right of action to challenge it, either.9

18

Richmond argues that Executive Order 13,768 “contains no language suggesting it was

19 intended to be merely an internal directive” (Richmond Opp. at 11). Yet all of the Order’s

20 mandates are directed at federal officials. Section 4 – the first section after the provisions on

21 policy and definitions – “direct[s] agencies to employ all lawful means to ensure the faithful

22 execution of the immigration laws of the United States against all removable aliens.” Section 9

23 sets forth instructions to the Attorney General, the Secretary of Homeland Security, and the

24 Director of the Office of Management and Budget. Except for statements of purpose, policy, and

25 the general construction of the Order (Sections 3 and 18), every section and subsection sets forth

26

9 San Francisco also seeks to distinguish United States v. Pickard, 100 F. Supp. 3d 981
27 (E.D. Cal. 2015). Plaintiff recognizes, however, that the court in Pickard rejected a challenge to

28

an internal memorandum that “described . . . enforcement priorities” (SF Opp. at 14 n.5). Like that memorandum, the Executive Order here sets forth “enforcement priorities.”

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1 instructions to one or more federal officials. In sharp contrast to Executive Order 13,768, other

2 orders have contained more than internal directives. One example is Executive Order 13,129,

3 which prohibited “any transaction or dealing by United States persons . . . in property or interests

4 in property” of the Taliban. 64 Fed. Reg. 36,759, § 2(a) (1999). Another example is Executive

5 Order 13,466, which provided that “United States persons may not register a vessel in North

6 Korea . . . or own, lease, operate, or insure any vessel flagged by North Korea.” 73 Fed. Reg.

7 36,787, § 2 (2008). Unlike the Executive Order involved here, those Orders were not merely

8 internal directives.

9

Finally, San Francisco argues that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

10 (1952), supports this challenge to Executive Order 13,768 because the order struck down there

11 “was similarly framed as a directive to an Executive Branch official” (SF Opp. at 13). But the

12 executive order involved in Youngstown necessarily affected the plaintiffs in that case very

13 directly, in contrast to the Order involved here. There, the President directed the Secretary of

14 Commerce to seize the facilities of certain named companies, including those of the plaintiffs.

15 See Exec. Order No. 10,340, § 1, 17 Fed. Reg. 3139 (1952). Here, in contrast, the Order only

16 directs the Attorney General and the Secretary to focus on certain aspects of their existing

17 authorities.

18 IV. 19

Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum

20

All three of the Plaintiffs challenge the grant eligibility provision under the Separation of

21 Powers and the Spending Clause (although Santa Clara County argues Spending Clause

22 principles only in the context of its Separation of Powers claim). San Francisco and Richmond

23 allege that the grant eligibility provision violates the Tenth Amendment. Santa Clara County and

24 Richmond allege that the provision is unconstitutionally vague under the Due Process Clause.

25 Finally, the County also makes a procedural due process claim, and Richmond also makes a

26 Fourth Amendment claim. All of these challenges are without merit, especially in light of the AG

27 Memorandum and the high standard for facial challenges.

28

Reply: Motions to Dismiss

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1

A. Plaintiffs Must Establish that the Grant Eligibility Provision

2

Is Unconstitutional in All Applications

All of Plaintiffs’ claims against the grant eligibility provision challenge its facial
3

constitutionality. As the Supreme Court has said, a facial challenge is “the most difficult
4

challenge to mount successfully”; in this context, “the challenger must establish that no set of
5

circumstances exists under which the [challenged enactment] would be valid.” United States v.
6

Salerno, 481 U.S. 739, 745 (1987). Plaintiffs argue that the Salerno principle does not apply here
7

(SF Opp. at 20-21; SC Opp. at 18-19), but this case fits comfortably within Salerno.
8

In Salerno itself, for example, the plaintiffs alleged, among other things, that the Bail
9

Reform Act’s procedures for determining whether to impose pretrial detention violated the Due
10

Process Clause on their face. 481 U.S. at 742, 751-52. The Court rejected that challenge, noting
11

that “to sustain [the procedures] against such a challenge, we need only find them adequate to
12

authorize the pretrial detention of at least some persons charged with crimes, whether or not they
13

might be insufficient in some particular circumstances.” Id. at 751 (citation and internal
14

quotation marks omitted). Applying that standard here, this Court should reject Plaintiffs’ facial
15

challenges because the grant eligibility provision can be applied constitutionally to “at least some
16

[jurisdictions]” that “willfully refuse to comply with 8 U.S.C. 1373,” Exec. Order No. 13,768,
17

§ 9(a). For example, especially in light of the AG Memorandum, there will be “at least some”
18

instances in which the agency has statutory authority to require certification of compliance with
19

Section 1373, the applicant or grantee is aware of the certification requirement beforehand,
20

compliance with Section 1373 is germane to the purposes of the particular grant, and requiring
21

such certification does not violate any “independent [constitutional] bar.” See S. Dakota v. Dole,
22

483 U.S. 203, 207-08 (1987).
23

The Court of Appeals applied Salerno to reject a facial challenge in Lanier v. City of
24

Woodburn, 518 F.3d 1147 (9th Cir. 2008). There, an applicant for a position at a public library
25

alleged that defendant’s policy requiring pre-employment drug testing violated the Fourth
26

Amendment on its face. Id. at 1149. Plaintiff argued “that there [was] no set of circumstances
27

under which the City’s policy would be constitutional as applied to every applicant for all jobs.”
28

Reply: Motions to Dismiss

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1 Id. at 1150. The court rejected that argument, holding that “a policy of general applicability is

2 facially valid unless it can never be applied in a constitutional manner. . . . As [there is] no

3 concrete reason why [defendant’s] policy could not constitutionally be applied to jobs that, for

4 example, require the operation of dangerous equipment,” the court continued, “we cannot say that

5 the policy is invalid on its face.” Id. Lanier reflects that Salerno means exactly what it says: A

6 plaintiff challenging the facial constitutionality of an enactment must establish that no set of

7 circumstances exists under which the enactment could be applied constitutionally.

8

San Francisco and Santa Clara County argue that City of Los Angeles v. Patel, 135 S. Ct.

9 2443 (2015), forecloses applying Salerno here (SF Opp. at 21; SC Opp. at 19). Patel, however,

10 involved a situation different from this case. The plaintiffs there brought a facial Fourth Amend-

11 ment challenge to a city ordinance that required hotel operators to allow law enforcement officers

12 to examine information about their guests on demand. 135 S. Ct. at 2447-48. The City argued

13 that plaintiffs’ challenge necessarily failed Salerno because some of the examinations (i.e., Fourth

14 Amendment searches) would be supported by consent, presentation of a warrant, or exigent

15 circumstances. Id. at 2450-51. The Court rejected that argument, holding that Salerno asks

16 whether the challenged enactment “’is unconstitutional in all of its applications’” – that is, in

17 those situations where the enactment must actually be applied. Id. at 2451 (quoting Wash. State

18 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)) (emphasis added).

19

The Plaintiffs here argue that Patel forecloses applying Salerno given “the existence of

20 other laws that might allow Defendants to condition specific grants on compliance with Section

21 1373” (SF Opp. at 21; see SC Opp. at 19). But this is fundamentally different from the facts in

22 Patel. Here, the challenged Order, especially as elucidated by the AG Memorandum, directs the

23 Attorney General and the Secretary to condition grants on compliance with Section 1373 only

24 where authorized by statute. In Patel, however, the ordinance required hotel operators to make

25 their records available under all circumstances, not only where independent legal bases existed to

26 require their availability. Plaintiffs’ argument would foreclose applying Salerno to any enactment

27 directing officials to apply existing law.

28

Reply: Motions to Dismiss

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1

Santa Clara County also argues that applying Salerno here would be inconsistent with the

2 Court of Appeals’ decision in Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir.

3 2014). Jackson, also, is readily distinguishable from this case. There, plaintiffs brought a facial

4 Second Amendment challenge to an ordinance that required handguns in a residence to be either

5 stored in a locked container, disabled with a trigger lock, or carried by an adult. Id. at 958.

6 Defendant argued that the facial challenge was inappropriate because plaintiffs had conceded that

7 “locked storage is appropriate in some circumstances, such as when it is foreseeable that a child

8 would otherwise gain possession of a firearm.” Id. at 961. The court rejected that argument

9 because the case did not fall within the rationales for the Supreme Court’s jurisprudence on facial

10 challenges: Specifically, the challenged ordinance was “not an example of ‘complex and

11 comprehensive legislation’ which may be constitutional in a broad swath of cases”; and the

12 constitutionality of the ordinance would not “turn on how San Francisco chooses to enforce it.”

13 Id. at 962 (quoting Gonzales v. Carhart, 550 U.S. 124, 168 (2007)).

14

In contrast, Executive Order 13,768 does fall within those rationales. The Order requires

15 DOJ and DHS to require certification of compliance with Section 1373 where it has authority to

16 do so. Such authority may exist in relation to a “broad swath” of grant programs, and any

17 disappointed applicant or grantee could bring an as-applied challenge in any particular case where

18 one of the agencies applies the grant eligibility provision. Thus, the Ninth Circuit’s decision in

19 Jackson does not undercut the application of Salerno here.

20

B. Plaintiffs Fail to State a Viable Claim that the Grant

Eligibility Provision Violates the Separation of Powers
21

As noted earlier, all three plaintiffs allege that the grant eligibility provision violates the
22

constitutional Separation of Powers. However, the Executive Order requires the Attorney
23

General and the Secretary to condition grant eligibility on compliance with 8 U.S.C. § 1373 “to
24

the extent consistent with law,” Exec. Order No. 13,768, § 9(a), and the AG Memorandum
25

confirms that compliance with Section 1373 will be imposed as a condition of grant eligibility
26

only where the agency “is statutorily authorized to impose such a condition.” AG Mem. at 2.
27

This should eliminate any facial Separation of Powers concerns, especially under Salerno.
28

Reply: Motions to Dismiss

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1

In response to these points, Santa Clara County asserts that the AG Memorandum does not

2 apply to the Department of Homeland Security’s application of the grant eligibility provision (SC

3 Opp. at 22).10 As discussed above, however, the Attorney General is responsible for “[f]urnish-

4 [ing] advice and opinions, formal and informal, on legal matters to the President and the Cabinet

5 and to the heads of the executive departments and agencies of the Government” – including the

6 Secretary of Homeland Security. 28 C.F.R. § 0.5(c). Also, the statute establishing the Secre-

7 tary’s “powers and duties” related to immigration enforcement provides that a “determination and

8 ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.

9 § 1103(a)(1). In any event, the Executive Order itself provides that compliance with Section

10 1373 shall be imposed as a grant condition only “to the extent consistent with law,” and an action

11 taken without authority would not be “consistent with law.”

12

C. Plaintiffs Fail to State a Viable Claim that the Grant

13

Eligibility Provision Exceeds the Spending Power

14

All three plaintiffs also allege that the grant eligibility provision violates the Spending

15 Clause, or that it would violate the Spending Clause if enacted by Congress. Especially in light of

16 the AG Memorandum, the grant eligibility provision states its requirements “unambiguously”;

17 applicants and grantees will “exercise their choice knowingly, cognizant of the consequences of

18 their participation” by choosing whether to certify compliance with Section 1373, which is related

19 to at least some grant programs; the provision’s “financial inducement” is not “so coercive” as to

20 constitute “compulsion”; and “other constitutional provisions” do not provide an “independent

21 bar.” S. Dakota v. Dole, 483 U.S. 203, 207-8, 211 (1987). The fact that these are facial chal-

22 lenges is especially relevant to this claim, as Plaintiffs cannot show that the condition imposed

23 pursuant to the grant eligibility provision is unrelated to all DOJ and DHS grants, that imposition

24

25
10 Richmond quotes at length from this Court’s discussion of the Separation of Powers

26 claims in ruling on the motions for preliminary injunction (Richmond Opp. a 16-17). But that

ruling was made before issuance of the AG Memorandum, and, in any event, a court’s finding on
27 the probability of success under a motion for preliminary injunction is not a final ruling on the

28

merits. Also, Defendants have asked the Court to reconsider its ruling on the motions for preliminary injunction.

Reply: Motions to Dismiss

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1 of that condition will necessarily constitute compulsion, or that all potential applications of the

2 condition will be constitutionally barred.

3

In response, San Francisco argues that the AG Memorandum does not settle the meaning

4 of “sanctuary jurisdictions” because “the Executive Order gives the Secretary – not the Attorney

5 General – the authority and discretion to designate sanctuary jurisdictions” (SF Opp. at 23).

6 However, this argument confuses the elucidation of that term with the responsibility to designate

7 individual jurisdictions. The Order gives the Secretary “the authority to designate, in his discre-

8 tion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Exec. Order

9 No. 13,768, § 9(a). But the AG Memorandum does not “designate” any sanctuary jurisdictions; it

10 only clarifies what the Order says about the meaning of the term – that is, that it “will refer only

11 to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” AG Mem. at 2. And the

12 Memorandum makes clear that the Secretary was consulted on that issue.

13

San Francisco also argues that the AG Memorandum “does not limit application of the

14 Executive Order to funds related to immigration enforcement, as required to satisfy the nexus

15 requirement” (SF Opp. at 24). The “relatedness” factor of Dole cannot fairly be called a nexus

16 “requirement,” however. As the Court of Appeals has said, “This possible ground for invalidat-

17 ing a Spending Clause statute, which only suggests that the legislation might be illegitimate

18 without demonstrating a nexus between the conditions and a specified national interest, is a far

19 cry from imposing an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d

20 1062, 1067 (9th Cir. 2002).11 Thus, conditions on federal funding must only “bear some rela-

21 tionship to the purpose of the federal spending.” Id. (quoting New York v. United States, 505 U.S.

22 144, 167 (1992)). Especially in light of Salerno and the AG Memorandum, the grant eligibility

23 provision easily meets this standard. The provision will be applied, “to the extent consistent with

24 law,” only to certain grants administered by DOJ and DHS, which are, respectively, the primary

25 federal law enforcement agency and the agency responsible for the admission and removal of

26 non-citizens (and the very agency whose communication with state and local government

27

28

11 Defendants’ motions to dismiss quoted Mayweathers, but the parties’ opposition briefs ignore it.

Reply: Motions to Dismiss

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1 officials is protected by Section 1373). Any alleged departure from this aspect of Dole could be

2 raised in an as-applied challenge.

3

Lastly, Santa Clara County argues that the AG Memorandum does not eliminate

4 coerciveness concerns because it “fails to identify which DHS grants are at issue, and the County

5 relies on DHS grants for [almost] two-thirds of its Office of Emergency Services budget,”

6 amounting to “more than $5 million” for Fiscal Year 2016 (SC Opp. at 21; SC Complaint ¶ 42).

7 This, however, does not state a viable claim for violation of the Spending Clause, especially on a

8 facial challenge. The County alleges that its annual budget is approximately $6 billion (id. ¶ 27),

9 so the alleged DHS grants for the Office of Emergency Services amount to approximately .083

10 percent of the County’s overall budget. By contrast, the Eighth Circuit has held that a State’s

11 potential loss of “approximately $250 million or 12 per cent. of the annual state education

12 budget” would not constitute coercion under Dole, see Jim C. v. United States, 235 F.3d 1079,

13 1082 (8th Cir. 2000), and the D.C. Circuit has held that a State’s risk of losing something less

14 than 4% of its overall budget in the form of federal highway funds would not be unconstitu-

15 tionally coercive, see Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 178 (D.C. Cir.

16 2015). Either of those potential losses may have amounted to a large proportion of one office’s

17 budget.

18

D. Richmond and San Francisco Fail to State a Viable Claim that the

Grant Eligibility Provision Violates the Tenth Amendment
19

San Francisco and Richmond allege that the grant eligibility provision violates the Tenth

20

Amendment. This provision should cause no concern under the Tenth Amendment, since a

21

grantee’s obligation to comply with Section 1373 would arise only because of its voluntary

22

acceptance of a grant that includes the condition, and a jurisdiction can simply decline to apply

23

for such a grant. San Francisco argues that the AG Memorandum does not eliminate this concern

24

because there is still a threat that the grant eligibility provision might be used to require jurisdic-

25

tions to comply with immigration detainer requests (SF Opp. at 24-25). As noted earlier,

26

however, the AG Memorandum makes clear that application of the grant eligibility provision will

27

turn on compliance with 8 U.S.C. § 1373, which relates only to the sharing of information. See

28

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1 AG Mem. at 2. Even if that were not the case, a jurisdiction could avoid any concern about being

2 “commandeered” by declining to apply for a covered grant.

3

Moreover, even if the grant eligibility provision were somehow seen as related to detainer

4 requests, the claim would also fail under Salerno. Some jurisdictions believe that federal detainer

5 requests are appropriate and voluntarily choose to comply with them. Those jurisdictions are

6 obviously not being “commandeered” in violation of the Tenth Amendment. Therefore, if the

7 potential for being compelled to comply with such requests is the basis of Plaintiffs’ facial Tenth

8 Amendment claim, the claim must be dismissed because they cannot establish that the grant

9 eligibility provision would violate the Tenth Amendment in all its applications. See Salerno, 481

10 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which [the

11 enactment] would be valid”).

12

E. Richmond and Santa Clara County Fail to State a Viable Claim of

13

Unconstitutional Vagueness under the Due Process Clause

14

Richmond and Santa Clara County allege that the grant eligibility provision is

15 unconstitutionally vague under the Due Process Clause of the Fifth Amendment.12 This is an

16 especially difficult challenge to mount facially. “Outside the First Amendment context, a plaintiff

17 alleging facial vagueness must show that the enactment is impermissibly vague in all its

18 applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir.

19 2009) (internal quotation marks omitted). The plaintiff “’must prove that the enactment is vague

20 not in the sense that it requires a person to conform his conduct to an imprecise but comprehen-

21 sible normative standard, but rather in the sense that no standard of conduct is specified at all.’

22 Put another way, [the challenger] must demonstrate that the ‘provision simply has no core.’”

23 Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Vill. of Hoffman Estates v.

24 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). The AG Memorandum should

25 eliminate any concern under these standards. Furthermore, as discussed in Part III above, the

26

12 Santa Clara County’s complaint also alleges that Section 6 of the Executive Order is
27 unconstitutionally vague (SC Dkt. No. 1 ¶ 141). For the reasons stated in Defendants’ motion,

28

any such claim should be dismissed (SC Dkt. No. 115 at 19-21 & n.6). The County’s opposition does not mention Section 6.

Reply: Motions to Dismiss

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1 Executive Order is an internal directive to Executive Branch officials; thus, there can be no

2 legitimate question as to whether it provides a “standard of conduct” for the plaintiffs.

3

Relying on Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013), Plaintiffs argue

4 that Defendants cannot “cure a facially unconstitutional statute by adopting an unreasonable

5 narrowing interpretation” (SC Opp. at 23; see Richmond Opp. at 20). As discussed above,

6 however, the AG Memorandum is fully consistent with the Executive Order. For example, the

7 limitation to federal grants rather than other types of funding is reflected in the President’s use of

8 “Federal funds” in Section 2 of the Order but “Federal grants” in Section 9(a); the limitation to

9 DOJ and DHS grants is reflected in the President’s references to the Attorney General and the

10 Secretary in Section 9(a); and implementing Section 9(a) by requiring grantees to certify

11 compliance with Section 1373 is based on the President’s conferral of “discretion” on the

12 Attorney General and Secretary regarding the means of implementing the grant eligibility

13 provision and his instruction to do so “consistent with law.”

14

Further, in any event, Valle del Sol is very different from this case. There, a state criminal

15 law prohibited anyone “who is in violation of a criminal offense” from taking certain action, and

16 plaintiffs brought a vagueness challenge focused on the phrase “in violation of a criminal

17 offense.” 732 F.3d at 1019. The State asserted that the phrase should be understood as meaning

18 “in violation of a law or statute,” but the court rejected that assertion, finding that the State was

19 proposing “not to adopt a narrowing construction, but rather to replace a nonsensical statutory

20 element with a different element.” Id. at 1021. That is far from the situation here. No one could

21 argue that the grant eligibility provision is “nonsensical.” The AG Memorandum merely clarifies

22 certain elements that could be understood variously – and in ways that perfectly accord with the

23 Order itself, as discussed above. Thus, Valle del Sol does not support Plaintiffs’ vagueness claim.

24

F. Santa Clara County Fails to State a Viable Claim

25

Regarding Procedural Due Process

26

Santa Clara County also alleges that the grant eligibility provision violates procedural due

27 process under the Fifth Amendment. Especially in light of the AG Memorandum, the County

28 does not have a protectable property interest in any grant funds to which the eligibility provision

Reply: Motions to Dismiss

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1 might apply, and, in any event, the applicable grant-making procedures would provide any

2 “process” that is due. Aside from whether the County might have a “legitimate claim of

3 entitlement” to certain kinds of federal funding, such as Medicaid reimbursements, the County

4 certainly does not have such a claim to discretionary grant funds provided by DOJ and DHS. See

5 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In any event, by specifying that

6 the grant eligibility provision be implemented “consistent with law,” Section 9(a) incorporates the

7 applicable procedural requirements for making or revoking federal grants. See, e.g., 2 C.F.R.

8 § 200.341 (hearings and appeals in federal grant-making); 28 C.F.R. pt. 18 (DOJ Office of Justice

9 Programs Hearing and Appeal Procedures).

10

In response, the County relies primarily on this Court’s ruling on Plaintiff’s motion for

11 preliminary injunction (SC Opp. at 24-25). But that ruling was made without the benefit of the

12 AG Memorandum, and Defendants have asked the Court to reconsider it. The County also cites

13 Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983), for the proposition that it has a legitimate claim

14 of entitlement to “federal funds that Congress has already appropriated and directed to local

15 entities” (SC Opp. at 25). But that case addressed whether veterinarians had a property interest in

16 permits to perform a certain diagnostic test, 721 F.2d at 1183-84, not whether a jurisdiction might

17 have a property interest in “federal funds that Congress has already appropriated and directed to

18 local entities.”

19

G. Richmond Fails to State a Viable Claim under the Fourth Amendment

20

The final claim regarding the grant eligibility provision is Richmond’s claim that the

21 provision violates the Fourth Amendment. Again, however, application of the grant eligibility

22 provision will turn on compliance with 8 U.S.C. § 1373, which involves the sharing of informa-

23 tion and thus does not create any issue under the Fourth Amendment. See AG Mem. at 2.

24 Moreover, the AG Memorandum also states that the grant eligibility provision “does not call for

25 the imposition of grant conditions that would violate any applicable constitutional or statutory

26 limitation.” Id. at 1-2.

27

Further, even aside from those considerations, this claim fails the Salerno test. First, as of

28 April 2, 2017, every detainer request issued by U.S. Immigration and Customs Enforcement

Reply: Motions to Dismiss

19

No. 3:17-cv-00485/00574/01535-WHO

Case 3:17-cv-01535-WHO Document 34 Filed 06/29/17 Page 26 of 28

1 (“ICE”) is supported not only by a probable cause finding as to removability in the detainer form

2 itself, but also by an administrative warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231, which

3 contains a probable cause finding made by ICE. See ICE, “Detainer Policy” (Mar. 24, 2017),

4 available at https://www.ice.gov/ detainer-policy. By definition, then, all such detainer requests

5 will satisfy the Fourth Amendment, see, e.g., Abel v. United States, 362 U.S. 217, 233 (1960),

6 such that a facial challenge cannot succeed. See Salerno, 481 U.S. at 745. And even without this

7 policy, because detainer requests are generally supported by probable cause findings, Richmond

8 cannot establish that complying with such requests would always violate the Fourth Amendment,

9 as necessary to sustain a facial challenge. See id. Richmond contends that the Court must accept

10 as true its allegation that the Order “requires Richmond to keep people in custody who would

11 otherwise be released” (Richmond Opp. at 19), but the Plaintiff does not – and cannot – allege

12 that such detention would always violate the Fourth Amendment.

13 V. 14

Richmond and San Francisco Fail to State a Viable Claim for Declaratory Relief Regarding Their Compliance with Section 1373

15

Aside from Plaintiffs’ challenges to the grant eligibility provision in Section 9(a),

16 Richmond and San Francisco seek a judicial declaration that they comply with 8 U.S.C. § 1373.

17 Plaintiffs do not, however, identify a right of action to seek such a declaration, and there is no live

18 controversy regarding whether they comply with Section 1373.

19

Plaintiffs argue that the Declaratory Judgment Act allows them to seek this relief (Rich-

20 mond Opp. at 21; SF Opp. at 10). “It is well-settled, however, that the Declaratory Judgment Act

21 does not create a stand-alone cause of action.” Fox-Quamme v. Health Net Health Plan of Or.,

22 Inc., No. 3:15-CV-01248-BR, 2016 WL 1724358, at *1 (D. Or. Apr. 29, 2016); see Muhammad v.

23 Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory

24 relief is not an independent cause of action or theory of recovery, only a remedy.”). Plaintiffs

25 have not pointed to any statute that provides a right of action to seek a declaration regarding their

26 compliance with Section 1373.

27

Nevertheless, San Francisco asserts that it can seek such a declaration because the United

28 States “could bring civil preemption actions against jurisdictions to enforce Section 1373” (SF

Reply: Motions to Dismiss

20

No. 3:17-cv-00485/00574/01535-WHO

Case 3:17-cv-01535-WHO Document 34 Filed 06/29/17 Page 27 of 28

1 Opp. at 10). The right of the United States to bring a preemption suit, however, is based on the

2 Supremacy Clause of the Constitution. San Francisco has no such right. Furthermore, the issue

3 involved in a federal preemption suit is fundamentally different from the cause of action that

4 Plaintiffs seek to assert: In a federal preemption action brought by the United States, the issue is

5 whether a State or local government’s law or action is constitutionally preempted by federal law.

6 If the court finds that the law or action is preempted, it is enjoined. In Plaintiff’s proposed action,

7 by contrast, the issue would be whether a local government’s law violates a federal law. The

8 Constitution requires the existence of the first kind of action, but not the second.

9

Lastly, there is no live controversy regarding whether Richmond or San Francisco

10 complies with Section 1373. Plaintiffs allege that they do not comply with immigration detainer

11 requests or otherwise cooperate with federal immigration authorities. But the Defendants have

12 not taken a position on whether Richmond or San Francisco complies with Section 1373.

13

CONCLUSION

14

For the reasons discussed above and in Defendants’ motions to dismiss, all of Plaintiffs’

15 claims should be dismissed.

16 Dated: June 29, 2017

17
Respectfully submitted,
18

CHAD A. READLER

19

Acting Assistant Attorney General

20
BRIAN STRETCH

21

United States Attorney

22

JOHN R. TYLER

23

Assistant Director

24

/s/ W. Scott Simpson

25

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel

26

27

28

Reply: Motions to Dismiss

21

No. 3:17-cv-00485/00574/01535-WHO

Case 3:17-cv-01535-WHO Document 34 Filed 06/29/17 Page 28 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS
DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv-00485-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA in City of Richmond v. Trump, et al., No. No. 3:17-cv-01535-WHO
22

 
 Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 1 of 9

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 CITY OF RICHMOND,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 17-cv-01535-WHO
ORDER GRANTING MOTION TO DISMISS Dkt. No. 26, 28, 32, 33

12

13

INTRODUCTION

14

The City of Richmond (“Richmond”) has brought claims challenging the constitutionality

15 of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States”

16 (“Executive Order”). Richmond Complaint (“RI Compl.”) (RI Dkt. No. 1). The defendants have

17 moved to dismiss Richmond’s claims, arguing that Richmond lacks standing, that it has failed to

18 state any claim against the Executive Order, and that it has failed to state a claim for declaratory

19 relief. As discussed more fully below, I conclude that Richmond has failed to establish pre-

20 enforcement standing to challenge the Executive Order because it has not demonstrated a well-

21 founded fear of enforcement against it. Further, it has failed to state a viable claim for declaratory

22 relief because it has not demonstrated that there is an actual controversy regarding its compliance

23 with 8 U.S.C. § 1373 (“Section 1373). For these reasons, the government’s motion to dismiss

24 Richmond’s claims is GRANTED.

25

BACKGROUND

26

Richmond filed this case on March 21, 2017. See RI Compl. I related it to two prior-filed

27 actions brought by the City and County of San Francisco (“San Francisco”) and the County of

28 Santa Clara (“Santa Clara”), (collectively “the Counties”). (RI Dkt. No. 6); See City & Cnty. of

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 2 of 9

United States District Court Northern District of California

1 San Francisco v. Trump, No. 17-cv-485-WHO, Cnty. of Santa Clara v. Trump, No. 17-574-WHO.

2 On April 4, 2017, Richmond filed a motion for preliminary injunction, seeking to enjoin

3 enforcement of the Executive Order. (RI Dkt. No. 12). It moved to shorten time on the motion so

4 that it could be heard on April 14, 2017, at the same time as the preliminary injunction motions

5 filed weeks earlier by the Counties. (RI Dkt. No. 13). I denied the motion, concluding that

6 shortening time would be unduly prejudicial to the government, which would have only five days

7 to respond to Richmond’s motion. (RI Dkt. No. 15).

8

On April 25, 2017, I granted the Counties’ preliminary injunction motions and enjoined

9 enforcement of Executive Order 13768 section 9(a). Preliminary Injunction Order (“PI Order”)

10 (SF Dkt. No. 82); (SC Dkt. No. 98). I subsequently denied as moot Richmond’s motion that

11 sought a similar injunction. (RI Dkt. No. 25).

12

On May 22, 2017, Attorney General Sessions issued a memorandum (“AG

13 Memorandum”), putting forward the Department of Justice’s “conclusive” interpretation of the

14 Executive Order. The government then moved for reconsideration of the PI Order, arguing that

15 the AG Memorandum was a material change in fact and law that justified reconsideration. See

16 (SF Dkt. No. 107); (SC Dkt. No. 113).

17

While the reconsideration motions were pending in the San Francisco and Santa Clara

18 cases, the government moved to dismiss all the claims brought by San Francisco, Santa Clara, and

19 Richmond. See e.g. Motion to Dismiss (“MTD”) (RI Dkt. No. 26). As to the Counties, I denied

20 the government’s motion for reconsideration, concluding that the AG Memorandum was not a

21 material change in fact or law and did not alter the analysis from the PI Order, and also denied the

22 motions to dismiss, concluding that San Francisco and Santa Clara had established standing, as

23 discussed at length in the PI Order, and had adequately stated all of their claims. See (SF Dkt. No.

24 146); (SC Dkt. No. 145). Now, I address the motion to dismiss Richmond’s claims.

25

LEGAL STANDARD

26

A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject

27 matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited

28 jurisdiction,” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. 2

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 3 of 9

United States District Court Northern District of California

1 Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the

2 federal court bears the burden of establishing that the court has the requisite subject matter

3 jurisdiction to grant the relief requested. Id.

4

A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

5 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

6 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

7 The challenger asserts that the allegations in the complaint are insufficient “on their face” to

8 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

9 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true

10 and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe, 392 F.3d

11 at 362.

12

DISCUSSION

13

The federal government has moved to dismiss Richmond’s claims on the grounds that

14 Richmond lacks standing to challenge the Executive Order, has failed to adequately allege any

15 claim against the Executive Order, and lacks standing to seek declaratory relief. Because I

16 conclude that Richmond has failed to demonstrate pre-enforcement standing to challenge the

17 Executive Order and has failed to allege an actual controversy regarding its compliance with

18 Section 1373, the government’s motion to dismiss is GRANTED.

19 I. WHETHER RICHMOND LACKS STANDING TO CHALLENGE THE EXECUTIVE ORDER
20 The government asserts that Richmond lacks standing to assert claims against the
21 Executive Order and that its claims are unripe. In the PI Order I dedicated twenty-five pages to
22 discussing these issues with regards to the Counties. See PI Order at 11-35. The framework I
23 used in the PI Order is equally applicable to Richmond’s claims.
24 The first step in my standing analysis was to address the government’s argument that the
25 Counties could not establish standing because the Executive Order does not change the law. I
26 rejected this argument. The Executive Order does purport to change the law and could therefore
27 give rise to the Counties’ alleged injuries. See PI Order at 12-16. This discussion, which related
28
3

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 4 of 9

United States District Court Northern District of California

1 to the meaning of the Executive Order and not the policies or conduct of any particular locality,

2 applies to Richmond.

3

After concluding that the Executive Order changed the law, I addressed whether the

4 Counties had established pre-enforcement standing to challenge the Order, since the Order had not

5 yet been enforced against them. See PI Order at 16-32. In assessing this issue I borrowed the

6 framework laid out in Babbitt v. Farm Workers, 442 U.S. 298, 298 (1979), in which the United

7 States Supreme Court held that a plaintiff may establish pre-enforcement standing by

8 demonstrating “an intention to engage in a course of conduct arguably affected with a

9 constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution

10 thereunder.” I concluded that San Francisco and Santa Clara had established pre-enforcement

11 standing because (1) their policies are reasonably read as proscribed by the language of the

12 Executive Order; (2) the Counties’ claims implicated a constitutional interest; (3) the Counties’

13 had demonstrated that the Order threatened them with a loss of federal grants or other enforcement

14 activity; and (4) the government had indicated an intent to enforce the Order generally and against

15 the Counties specifically.

16

For purposes of this Order, I will assume without deciding that Richmond has

17 demonstrated that it has policies proscribed by the Executive Order, that its claims implicate a

18 constitutional interest, and that it could face a loss of federal grants if the Executive Order is

19 enforced against it. But to establish pre-enforcement standing under the Babbitt framework, it

20 must also demonstrate that it has a well-founded fear that the Executive Order will actually be

21 enforced against it. Because Richmond’s complaint indicates that there is no real-world conflict

22 between it and the federal government regarding its “sanctuary” policies, Richmond cannot meet

23 this final burden.

24

In the PI Order I concluded that the government had indicated “an intent to enforce the

25 [Executive] Order generally and against the Counties more specifically.” See PI Order at 22. This

26 analysis was based on statements and conduct from key government actors and agencies regarding

27 enforcement of the Executive Order and San Francisco’s and Santa Clara’s “sanctuary” policies.

28 Id. at 22-27. While the statements regarding general enforcement of the Order would apply 4

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 5 of 9

United States District Court Northern District of California

1 equally to Richmond as they did to San Francisco and Santa Clara, the more specific statements

2 regarding San Francisco’s and Santa Clara’s policies were specific to those plaintiffs. For

3 example, I noted that Santa Clara and San Francisco have both been identified by ICE as

4 jurisdictions that “Restrict Cooperation with ICE” and that both Santa Clara County Main Jail and

5 San Francisco County Jail are listed as two of eleven detention centers with the “highest volume

6 of detainers issued” that “do not comply with detainers on a routine basis.” See PI Order at 25. I

7 noted that Attorney General Sessions and former Secretary Kelly had called out and criticized San

8 Francisco and Santa Clara in a letter to Chief Justice Cantil-Sakauye of the California Supreme

9 Court, by asserting that some of California’s “largest counties and cities” hinder the enforcement

10 of immigration law by “denying requests by ICE officers and agents to enter prisons and jails to

11 make arrests.” See id. And I noted that President Trump had threatened to defund California,

12 calling it “out of control.” Id. Finally, with regard to San Francisco specifically, I noted that both

13 President Trump and Attorney General Sessions had repeatedly criticized San Francisco’s

14 sanctuary policies and blamed them for causing the death of Kathryn Steinle.

15

With the exception of President Trump’s comment regarding the State of California being

16 “out of control,” none of these statements is applicable to Richmond. Richmond has not alleged

17 any facts indicating that it has been identified as a city that restricts cooperation with ICE or as one

18 that regularly declines detainer requests. Instead, Richmond alleges in its complaint that “ICE has

19 not in the past asked Richmond for information or issued detainer requests.” RI Compl. ¶ 48.

20 This is a clear and important distinction between the Counties and Richmond. While the Counties

21 have had a number of clashes with immigration authorities and have histories of conflict with the

22 federal government over their sanctuary policies, Richmond, according to its complaint, has never

23 even been asked to assist in enforcing immigration policy. Its policies have not resulted in any

24 actual conflict between it and ICE regarding immigration enforcement.

25

The Executive Order is aimed at encouraging or coercing previously uncooperative

26 localities to cooperate with ICE on immigration enforcement. The likely targets of enforcement

27 under the Order are jurisdictions that have actually refused to cooperate with ICE and that ICE

28 believes are hindering its immigration enforcement efforts. While Richmond’s policies may 5

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 6 of 9

United States District Court Northern District of California

1 conflict with Section 1373 and the Executive Order on paper, this conflict is, currently, purely

2 academic. Richmond has not actually refused to cooperate or assist ICE, has not declined to honor

3 any detainer requests, and has not otherwise hindered the enforcement of federal immigration law.

4 Given that Richmond’s policies have, apparently, had no practical effect on ICE’s immigration

5 enforcement efforts, it is hard to imagine that Richmond is a high priority for the federal

6 government’s efforts to discourage “sanctuary” policies. Rather, these efforts are likely to be

7 focused on jurisdictions from which ICE is actively seeking, but not receiving, assistance.

8

Despite having no real-world friction with ICE or the defendants over its policies,

9 Richmond argues that it is likely to face enforcement under the Executive Order because it has

10 been called a sanctuary city and because it has a large Latino population. Neither of these

11 arguments is persuasive.

12

Richmond asserts that it has been called a sanctuary city, but does not say by whom or in

13 what context. This vague assertion that someone, somewhere, referred to Richmond as a

14 sanctuary city is insufficient to demonstrate that the federal government believes Richmond is a

15 sanctuary city or is likely to enforce the Executive Order against it.

16

Richmond does not explain why having a large Latino population is likely to subject it to

17 enforcement under the Executive Order. It is possible that Richmond is suggesting that a large

18 Latino population goes hand-in-hand with greater ICE enforcement activity and that, because of

19 this, ICE is more likely to ask Richmond for assistance and therefore, more likely to develop

20 conflicts with Richmond over it local policies. But even if this is true, and Richmond does not

21 allege any facts supporting this reading, Richmond’s own experience with ICE has not borne this

22 out. As discussed above, regardless of what its large Latino population might indicate, ICE has

23 never asked Richmond for assistance enforcing immigration laws and has never issued a detainer

24 request to Richmond police. Richmond has not alleged any facts supporting the contention that its

25 large Latino population is likely to subject it to defunding under the Executive Order.

26

Overall, Richmond’s situation draws parallels with that of the plaintiffs in Thomas v.

27 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th Cir. 2000) (en banc). In Thomas, two

28 landlords brought a pre-enforcement free speech challenge to Alaska housing laws that prohibited 6

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 7 of 9

United States District Court Northern District of California

1 discrimination on the basis of marital status. Id. at 1137. The landlords contended that they were

2 likely to face enforcement because, as devout Christians, they refused to accept unmarried, but

3 cohabiting, couples as tenants. Id. The Ninth Circuit dismissed the case as non-justiciable. It

4 concluded that the landlords had failed to demonstrate that they were likely to face enforcement in

5 part because the landlords could not point to clear violations of the law; no prospective tenant had

6 ever complained about their policies; and “the principal enforcement agencies had never even

7 heard of these landlords before they filed this action.” Id. 1137, 1140. Similarly, while Richmond

8 has policies that might restrict the ability of local officials to assist ICE, these policies have never

9 been put to use as ICE has never requested information or assistance from Richmond and has

10 never asked Richmond to honor any detainer requests. There is no indication from Richmond’s

11 complaint that ICE or the defendants have ever taken note of Richmond’s policies in any way or

12 identified Richmond as a jurisdiction hindering the enforcement of immigration law. Id.

13

It is not enough to dislike an Executive Order or to worry about its implications to

14 establish pre-enforcement standing. Given the lack of a real-world controversy between

15 Richmond and the federal government regarding Richmond’s sanctuary policies, and in contrast

16 with the Counties, Richmond has failed to demonstrate that it has a well-founded fear of

17 enforcement under the Executive Order. This is fatal to pre-enforcement standing.

18 II. DECLARATORY RELIEF CLAIM

19

Richmond has brought a claim for declaratory relief that its laws comply with Section

20 1373. The government moves to dismiss this claim, asserting that Richmond has failed to identify

21 a right of action that would allow it to pursue declaratory relief. RI MTD at 22 (RI Dkt. No. 26).

22 The government also asserts that any such relief would be prohibited as an improper advisory

23 opinion. Id. Because Richmond has failed to allege facts sufficient to demonstrate that there is an

24 “actual controversy” between it and the federal government regarding its compliance with Section

25 1373, it has failed to demonstrate standing on its declaratory relief claim.

26

The Declaratory Judgment Act creates a remedy for litigants but is not an independent

27 cause of action. See, e.g., Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5

28 (N.D. Cal. Oct. 10, 2012) (“Declaratory relief is not an independent cause of action or theory of 7

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 8 of 9

United States District Court Northern District of California

1 recovery, only a remedy. The [Declaratory Judgment Act] does not itself confer federal subject-

2 matter jurisdiction.”) (citation and internal quotation marks omitted). The Act provides that “[i]n a

3 case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare

4 the rights and other legal relations of any interested party seeking such declaration, whether or not

5 further relief is or could be sought.” 28 U.S.C. § 2201(a). “[T]he question in each case is whether

6 the facts alleged, under all the circumstances, show that there is a substantial controversy, between

7 parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance

8 of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273

9 (1941).

10

Richmond has not demonstrated that there is an actual controversy regarding its

11 compliance with Section 1373 sufficient to warrant the issuance of a declaratory judgment. It

12 asserts that there is a substantial controversy because “Richmond alleges that it believes that it

13 complies with the statute, but Defendants contend otherwise.” RI MTD Oppo. at 21. If the

14 defendants had actually indicated that they believe Richmond does not comply with Section 1373

15 through public statements, written notice, or otherwise, this assertion might evidence an actual

16 controversy. However, review of Richmond’s complaint demonstrates that Richmond’s assertion

17 is pure speculation. Its only allegation in support of this claim is a line in its complaint stating,

18 “Richmond believes that Defendants contend that Richmond does not comply with 8 U.S.C. §

19 1373.” RI Compl. ¶ 116. Richmond cites nothing but its own unsupported belief in support of its

20 claim that the federal government believes its policy is non-compliant with Section 1373. If this

21 were sufficient to establish an actual controversy under the Declaratory Judgment Act, then any

22 litigant could meet the actual controversy requirement simply by stating its belief as to the

23 existence of a dispute. This is not sufficient to demonstrate Article III standing.

24

As discussed above, Richmond has not alleged any facts indicating that, prior to this

25 lawsuit, the federal defendants were aware of Richmond’s “sanctuary” policies, that Richmond

26 had ever put any of its policies into practice, or that the defendants had any opinion of whether

27 Richmond’s policies comply with Section 1373. Richmond cannot manufacture standing to seek

28 declaratory relief by citing to its own unsupported belief as to the existence of an actual 8

Case 3:17-cv-01535-WHO Document 42 Filed 08/21/17 Page 9 of 9

United States District Court Northern District of California

1 controversy. On the facts alleged, there is no evidence of an actual controversy regarding

2 Richmond’s compliance with Section 1373. Richmond’s declaratory relief claim must be

3 dismissed.

4

CONCLUSION

5

Because Richmond has failed to demonstrate any real-world conflict between it and the

6 federal defendants regarding its sanctuary policies, it has not demonstrated a well-founded fear of

7 enforcement under the Executive Order. Accordingly, it has not demonstrated that it has pre-

8 enforcement standing to challenge the Order. The government’s motion to dismiss these claims is

9 GRANTED. For similar reasons, Richmond has failed to demonstrate that there is an actual

10 controversy regarding its compliance with Section 1373, as it has alleged no facts in support of its

11 claim that the government believes its policies fail to comply with Section 1373. The

12 government’s motion to dismiss Richmond’s declaratory relief claim is GRANTED.

13

Richmond’s claims are dismissed without prejudice. Richmond will have 20 days from the

14 date of this Order to file an amended complaint if it wishes to attempt to address the jurisdictional

15 issues identified above. Richmond is also welcome to continue to participate in the litigation

16 regarding the Executive Order as an amicus curiae, which it, and many other cities, counties, and

17 states, have done by filing amicus briefs in the San Francisco and Santa Clara cases. See

18 Richmond Amicus Briefs (SC Dkt. No. 74); (SC Dkt. No. 129); (SF Dkt. No. 40); (SF Dkt. No.

19 126). Richmond’s perspective and position regarding the Executive Order is well-represented in

20 these briefs. Obviously, in the event that the federal defendants in the future commence an

21 enforcement action or otherwise target Richmond for its “sanctuary” policies, nothing in this

22 Order would affect Richmond’s ability to litigate those issues.

23

IT IS SO ORDERED.

24 Dated: August 21, 2017

25

26

27

William H. Orrick United States District Judge

28

9

 
 Case 3:17-cv-01535-WHO Document 46 Filed 09/25/17 Page 1 of 3

1 JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com
2 NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com
3 ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com
4 BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com
5 COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center
6 840 Malcolm Road, Suite 200 Burlingame, CA 94010
7 Telephone: (650) 697-6000 Facsimile: (650) 697-0577
8
BRUCE REED GOODMILLER (SBN 121491) 9 Bruce_goodmiller@ci.richmond.ca.us
RACHEL H. SOMMOVILLA, (SBN 231529) 10 rachel_sommovilla@ci.richmond.ca.us
CITY OF RICHMOND 11 450 Civic Center Plaza
P.O. Box 4046 12 Richmond, CA 94804
Telephone: (510) 620-6509 13 Facsimile: (510) 620-6518

14 Attorneys for Plaintiff City of Richmond

15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

16

17 CITY OF RICHMOND, a municipal corporation,
18
Plaintiff, 19
vs. 20
DONALD J. TRUMP, President of the 21 United States,
JOHN F. KELLY, Secretary of the United 22 States Department of Homeland Security,
JEFFERSON B. SESSIONS, Attorney 23 General of the United States, and the
UNITED STATES OF AMERICA, 24
Defendants. 25

Case No. 3:17-cv-01535-WHO
CITY OF RICHMOND’S RESPONSE TO ORDER RE FILING OF AMENDED COMPLAINT
Complaint Filed: March 21, 2017 Trial Date: April 23, 2018

26

27

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S REPONSE TO ORDER RE FILING OF AMENDED COMPLAINT; 3:17-cv-01535-WHO

Case 3:17-cv-01535-WHO Document 46 Filed 09/25/17 Page 2 of 3

1

On March 21, 2017, the City of Richmond (“Richmond”) filed a lawsuit against President

2 Donald Trump, Attorney General Jeff Sessions, then Secretary of Homeland Security John Kelly,

3 and the United States of America, challenging the unconstitutional Executive Order No. 13768

4 issued by President Trump on January 25, 2017 entitled “Enhancing Public Safety in the Interior

5 of the United States.” (Dkt. 1). Richmond brought this action because, under its reasonable

6 interpretation of the Executive Order, Richmond feared the loss of all its federal funds, as

7 threatened by the Executive Order because Richmond has a history of supporting its immigrant

8 community, Richmond has enacted an ordinance and regulation supporting that policy, and it

9 believes that immigrants’ trust in law enforcement is critical to the safety of the community.

10

On April 25, 2017, this Court issued a nationwide preliminary injunction enjoining

11 enforcement of Section 9(a) of Executive Order 13768. (Dkt. No. 25), which order Defendants

12 have now appealed.

13

Defendants challenged Richmond’s complaint arguing, inter alia, that Richmond lacked

14 standing and its claims were not ripe. Defendants’ Motion to Dismiss Memorandum at pp. 11:5-

15 12:25; Defendants Reply: Motions to Dismiss at pp. 6:23-8:25. (Dkt. Nos. 26, 34). Defendants

16 argued that the Executive Order was of limited scope, Defendants had not taken any enforcement

17 action against Richmond, and there was no indication that any action was imminent. Reply at

18 7:8-17, 8:17-19. Richmond opposed the motion. (Dkt. No. 29).

19

On August 21, 2017, this Court granted Defendants’ motion to dismiss and provided

20 Richmond leave to amend finding, inter alia, that Richmond has not “demonstrated a well-

21 founded fear of enforcement against it,” “[i]ts policies have not resulted in any actual conflict

22 between it and ICE regarding immigration enforcement,” and “ICE has never asked Richmond for

23 assistance enforcing immigration laws and has never issued a detainer request to Richmond

24 police.” Order Granting Motion to Dismiss at pp. 1:20-21, 5:23-24, 6:22-24. (Dkt. No. 42).

25

Based upon Defendants’ statements and this Court’s rulings, Richmond will not be filing

26 an amended complaint. Richmond will accept the Court’s invitation to continue as an amicus

27 curiae in this important case and if Defendants’ position against Richmond changes, Richmond

28

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S RESPONSE TO ORDER RE FILING OF AMENDED COMPLAINT;

3:17-cv-01535-WHO

1

Case 3:17-cv-01535-WHO Document 46 Filed 09/25/17 Page 3 of 3

1 will litigate the issues. Id. at pp. 9:13-22. Richmond will continue to support its immigrant

2 community and all residents of Richmond.

3

Respectfully Submitted,

4 Dated: September 25, 2017 5 6 7 8 9 10 11 12 13

COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Nancy L. Fineman
JOSEPH W. COTCHETT (SBN 36324) jcotchett@cpmlegal.com NANCY L. FINEMAN (SBN 124870) nfineman@cpmlegal.com ALEXANDRA P. SUMMER (SBN 266485) asummer@cpmlegal.com BRIAN DANITZ (SBN 247403) bdanitz@cpmlegal.com COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577

14 Dated: September 25, 2017 15 16 17 18 19 20 21 22 23

CITY OF RICHMOND
By: /s/ Bruce Reed Goodmiller
BRUCE REED GOODMILLER (SBN 121491) Bruce_goodmiller@ci.richmond.ca.us RACHEL H. SOMMOVILLA (SBN 231529) rachel_sommovilla@ci.richmond.ca.us CITY OF RICHMOND 450 Civic Center Plaza P.O. Box 4046 Richmond, CA 94804 Telephone: (510) 620-6509 Facsimile: (510) 620-6518
COUNSEL FOR PLAINTIFF CITY OF RICHMOND
ATTESTATION OF FILING

24

I, Nancy L. Fineman, hereby attest, pursuant to Northern District of California, Local Rule

25 5-1(i)(3) that concurrence to the filing of this document has been obtained from each signatory

26 hereto.

27

/s/ Nancy L. Fineman

28

NANCY L. FINEMAN Attorney for Plaintiff

Law Offices COTCHETT, PITRE & MCCARTHY, LLP

CITY OF RICHMOND’S RESPONSE TO ORDER RE FILING OF AMENDED COMPLAINT;

3:17-cv-01535-WHO

2

 
 Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 1 of 7
ADRMOP,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−01535−WHO

City of Richmond v. Trump et al Assigned to: Judge William H. Orrick Relate Case Cases: 3:17−cv−00574−WHO
3:17−cv−00485−WHO Cause: 28:2201 Injunction Plaintiff
City of Richmond

Date Filed: 03/21/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Brian Danitz Cotchett, Pitre & McCarthy LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: bdanitz@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph W. Cotchett Cotchett Pitre & McCarthy LLP 840 Malcolm Road, Suite 200 Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: jcotchett@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra P Summer Cotchett, Pitre & McCarthy, LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: asummer@cpmlegal.com ATTORNEY TO BE NOTICED
Bruce Reed Goodmiller City Attorney's Office City of Richmond 450 Civic Center Plaza Richmond, CA 94804 510−620−6509 Fax: 510−620−6518 Email: bruce_goodmiller@ci.richmond.ca.us ATTORNEY TO BE NOTICED
Jose Camilo Artiga−Purcell Cotchett, Pitre and McCarthy, LLP San Francisco Airport Office Center 840 Malcolm Road Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: CArtigaPurcell@cpmlegal.com ATTORNEY TO BE NOTICED

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 2 of 7
Nancy L. Fineman Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Email: nfineman@cpmlegal.com ATTORNEY TO BE NOTICED
Rachel Hannah Sommovilla City of Richmond 450 Civic Center Plaza P.O. Box 4046 Richmond, CA 94804 510−620−6509 Fax: 510−620−6518 ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump
Defendant John F. Kelly
Defendant Jefferson B. Sessions
Defendant United States of America
Amicus Anti−Defamation League
Amicus

represented by W. Scott Simpson U.S. Department of Justice Room 7210 Post Office Box 883 Washington, VA 20044 202−514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Ward Perrin Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, CA 90071 213−485−1234 Fax: 213−891−8963 Email: robert.perrin@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 3 of 7

States of West Virginia, Louisiana, et al.

represented by Thomas Michael Johnson , Jr. Office of the Attorney General of West Virginia State Capitol Complex Bldg. 1, Room E−26 Charleston, WV 25305 United Sta (304) 558−2422 Email: tjohnson@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus State of California

represented by Lisa Catherine Ehrlich California Attorney General's Office 1515 Clay Street, 20th Floor Oakland, CA 94612 (510) 879−0173 Fax: (510) 622−2270 Email: lisa.ehrlich@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/21/2017
03/21/2017 03/21/2017 03/22/2017
03/22/2017 03/24/2017 03/24/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−11250869.). Filed byCity of Richmond. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Civil Cover Sheet, # 8 Certificate of Interested Entities or Persons)(Cotchett, Joseph) (Filed on 3/21/2017) (Entered: 03/21/2017)
2 Proposed Summons. (Cotchett, Joseph) (Filed on 3/21/2017) (Entered: 03/21/2017)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 6/19/2017. Case Management Conference set for 6/26/2017 01:30 PM in Courtroom A, 15th Floor, San Francisco. (ysS, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/22/2017)
3 Case assigned to Magistrate Judge Sallie Kim.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 4/5/2017. (haS, COURT STAFF) (Filed on 3/22/2017) (Entered: 03/22/2017)
5 Summons Issued as to John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (ysS, COURT STAFF) (Filed on 3/22/2017) (Entered: 03/22/2017)
6 ORDER RELATING CASE. Signed by Judge William H. Orrick on 03/24/2017. (jmdS, COURT STAFF) (Filed on 3/24/2017) (Entered: 03/24/2017)
7 Case Reassigned to Judge Hon. William H. Orrick. Magistrate Judge Sallie Kim no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (as, COURT STAFF) (Filed on 3/24/2017) (Entered: 03/24/2017)

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 4 of 7

03/24/2017 03/29/2017 03/29/2017 04/04/2017 04/04/2017
04/05/2017 04/05/2017 04/06/2017 04/18/2017

8 CASE MANAGEMENT CONFERENCE ORDER − Case Management Conference set for 5/2/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco. Case Management Statement due by 4/25/2017. Signed by Judge William H. Orrick on 03/24/2017. (jmdS, COURT STAFF) (Filed on 3/24/2017) (Entered: 03/24/2017)
9 CERTIFICATE OF SERVICE by City of Richmond re 2 Proposed Summons, 1 Complaint, Via Certified Mail of Summons, Complaint and Related Documents on President Donald J. Trump, Attorney General Jefferson B. Sessions; Secretary of the United States Homeland Security John F. Kelly and the United States (Fineman, Nancy) (Filed on 3/29/2017) (Entered: 03/29/2017)
10 CERTIFICATE OF SERVICE by City of Richmond re 2 Proposed Summons, 1 Complaint, Via Personal Service on the United States of America (Fineman, Nancy) (Filed on 3/29/2017) (Entered: 03/29/2017)
11 NOTICE of Appearance by Brian Danitz (Danitz, Brian) (Filed on 4/4/2017) (Entered: 04/04/2017)
12 MOTION for Preliminary Injunction filed by City of Richmond. Motion Hearing set for 5/10/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 4/18/2017. Replies due by 4/25/2017. (Attachments: # 1 Declaration OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 2 Exhibit 1 TO DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 3 Exhibit 2 TO DECLARATION OF ALLWYN BROWN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 4 Declaration OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 5 Exhibit 1 TO DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 6 Exhibit 2 TO DECLARATION OF WILLIAM LINDSAY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 7 Declaration OF GAYLE MCLAUGHLIN IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 8 Declaration OF ADRIAN SHEPPARD IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 9 Declaration OF TOM BUTT IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, # 10 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS MOTION FOR PRELIMINARY INJUNCTION, # 11 Exhibit 1 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS MOTION FOR PRELIMINARY INJUNCTION, # 12 Exhibit 2 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS MOTION FOR PRELIMINARY INJUNCTION, # 13 Exhibit 3 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS MOTION FOR PRELIMINARY INJUNCTION, # 14 Proposed Order GRANTING CITY OF RICHMONDS MOTION FOR PRELIMINARY INJUNCTION, # 15 Certificate/Proof of Service VIA E−MAIL BY AGREEMENT OF PARTIES)(Fineman, Nancy) (Filed on 4/4/2017) (Entered: 04/04/2017)
13 MOTION to Shorten Time filed by City of Richmond. (Attachments: # 1 Declaration OF BRIAN DANITZ IN SUPPORT OF PLAINTIFF CITY OF RICHMONDS MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR PRELIMINARY INJUNCTION [Civ. L.R. 6−3], # 2 Proposed Order GRANTING PLAINTIFF CITY OF RICHMONDS MOTION TO SHORTEN TIME FOR HEARING ON MOTION FOR PRELIMINARY INJUNCTION [Civ. L.R. 6−3], # 3 Certificate/Proof of Service VIA E−MAIL BY AGREEMENT OF PARTIES)(Danitz, Brian) (Filed on 4/5/2017) (Entered: 04/05/2017)
14 OPPOSITION/RESPONSE (re 13 MOTION to Shorten Time ) filed byJohn F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 4/5/2017) (Entered: 04/05/2017)
15 ORDER DENYING 13 MOTION TO SHORTEN TIME by Hon. William H. Orrick. (jmdS, COURT STAFF) (Filed on 4/6/2017) (Entered: 04/06/2017)
16 OPPOSITION/RESPONSE (re 12 MOTION for Preliminary Injunction ) filed byJohn F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America.

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 5 of 7

04/25/2017 04/25/2017 04/25/2017
05/02/2017
05/03/2017 05/05/2017 05/08/2017
05/09/2017 05/22/2017 06/08/2017

(Attachments: # 1 Letter from Samuel R. Ramer, Acting AAG, Office of Legis. Affairs)(Simpson, W.) (Filed on 4/18/2017) (Entered: 04/18/2017)
17 CLERK'S NOTICE − The start time of the Case Management Conference set for 5/2/2017 is advanced to 01:30 PM in Courtroom 2, 17th Floor, San Francisco. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
18 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by City of Richmond. (Fineman, Nancy) (Filed on 4/25/2017) (Entered: 04/25/2017)
19 REPLY (re 12 MOTION for Preliminary Injunction ) filed byCity of Richmond. (Attachments: # 1 SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS REPLY TO MOTION FOR PRELIMINARY INJUNCTION, # 2 Exhibit 1 TO SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CITY OF RICHMONDS REPLY TO MOTION FOR PRELIMINARY INJUNCTION)(Fineman, Nancy) (Filed on 4/25/2017) (Entered: 04/25/2017)
20 Minute Entry for proceedings held before Hon. William H. Orrick: Case Management Conference held on 5/2/2017. The hearing set for May 9, 2017 on the City of Richmond's Motion for Preliminary Injunction is VACATED. Close of Fact Discovery: 10/31/2017. Dispositive Motions to be heard by 1/10/2018. Pretrial Conference set for 4/2/2018 02:00 PM and Bench Trial set for 4/23/2018 08:00 AM before Hon. William H. Orrick, both in Courtroom 2, 17th Floor, San Francisco. FTR Time 1:32−2:01. (jmdS, COURT STAFF) (Date Filed: 5/2/2017) Modified on 5/3/2017: Matter transcribed by Leo Mankiewicz. (rjdS, COURT STAFF). (Entered: 05/03/2017)
21 MOTION to File Amicus Curiae Brief Motion for Leave to File Brief of Amicus Curiae Anti−Defamation League in Support of Plaintiff's Motion for Preliminary Injunction filed by Anti−Defamation League. Responses due by 5/17/2017. (Attachments: # 1 Brief of Amicus Curiae, # 2 Proposed Order)(Perrin, Robert) (Filed on 5/3/2017) (Entered: 05/03/2017)
22 STIPULATION WITH PROPOSED ORDER re 1 Complaint, filed by John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 5/5/2017) (Entered: 05/05/2017)
23 Transcript of Proceedings held on 05/02/2017, before Judge William H. Orrick. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; leomank@gmail.com. FTR 1:32 p.m. − 2:02 p.m. = 30 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (103 in 3:17−cv−00574−WHO) Transcript Order ) Redaction Request due 5/30/2017. Redacted Transcript Deadline set for 6/8/2017. Release of Transcript Restriction set for 8/7/2017. (Mankiewicz, Leo) (Filed on 5/8/2017) (Entered: 05/08/2017)
24 STIPULATION AND ORDER. Signed by Judge William H. Orrick on 05/09/2017. (jmdS, COURT STAFF) (Filed on 5/9/2017) (Entered: 05/09/2017)
25 ORDER DENYING 12 MOTION FOR PRELIMINARY INJUNCTION AS MOOT by Judge William H. Orrick. 21 Motion to File Amicus Curiae Brief is also denied as moot. (jmdS, COURT STAFF) (Filed on 5/22/2017) (Entered: 05/22/2017)
26 MOTION to Dismiss filed by John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. Motion Hearing set for 7/19/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 6/22/2017. Replies due by 6/29/2017. (Attachments: # 1 Mem. from Atty Gen. for All Dept Grant−Making Components (May 22, 2017), # 2 Proposed Order)(Simpson, W.) (Filed on 6/8/2017) (Entered: 06/08/2017)

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 6 of 7

06/09/2017
06/16/2017 06/22/2017 06/23/2017 06/26/2017 06/28/2017 06/28/2017
06/29/2017 07/03/2017 07/07/2017
07/07/2017 07/12/2017

27 CLERK'S NOTICE − Motion Hearing reset for 7/12/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick (to comply with 102 minute order). Re: 115 Motion to Dismiss in 3:17−cv−00574−WHO, 111 Motion to Dismiss in 3:17−cv−00485−WHO, and 26 MOTION to Dismiss in 3:17−cv−01535−WHO. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 6/9/2017) (Entered: 06/09/2017)
28 Joint MOTION to File Amicus Curiae Brief In Support of United States' Motion to Dismiss filed by States of West Virginia, Louisiana, et al.. Responses due by 6/30/2017. Replies due by 7/7/2017. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Johnson, Thomas) (Filed on 6/16/2017) (Entered: 06/16/2017)
29 OPPOSITION/RESPONSE (re 26 MOTION to Dismiss ) filed byCity of Richmond. (Fineman, Nancy) (Filed on 6/22/2017) (Entered: 06/22/2017)
30 STIPULATION WITH PROPOSED ORDER re 29 Opposition/Response to Motion filed by John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 6/23/2017) (Entered: 06/23/2017)
31 ORDER continuing reply deadline re: Motions to Dismiss. Replies due by 6/29/2017. Signed by Judge William H. Orrick on 06/26/2017. (jmdS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)
32 MOTION to File Amicus Curiae Brief Motion for Leave to File Statement of Amicus Curiae Anti−Defamation League in Support of Plaintiffs' Opposition to Defendants'Motion to Dismiss filed by Anti−Defamation League. Responses due by 7/12/2017. Replies due by 7/19/2017. (Attachments: # 1 Proposed Statement, # 2 Proposed Order)(Perrin, Robert) (Filed on 6/28/2017) (Entered: 06/28/2017)
33 ADMINISTRATIVE MOTION Administrative Motion By California, Connecticut, Delaware, District Of Columbia, Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, And Washington For Leave To File An Amicus Curiae Brief In Support Of Plaintiffs Oppositions To Defendants Motions To Dismiss filed by State of California. Responses due by 7/3/2017. (Attachments: # 1 Exhibit Multi−state Amicus Curiae Brief of California et al., # 2 Proposed Order)(Ehrlich, Lisa) (Filed on 6/28/2017) (Entered: 06/28/2017)
34 REPLY (re 26 MOTION to Dismiss ) filed byJohn F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 6/29/2017) (Entered: 06/29/2017)
35 STIPULATION WITH PROPOSED ORDER re 27 Clerk's Notice,, Set Motion and Deadlines/Hearings, filed by John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America. (Simpson, W.) (Filed on 7/3/2017) (Entered: 07/03/2017)
36 Joinder AND JOINDER IN PLAINTIFF COUNTY OF SANTA CLARAS (1) MOTION FOR LEAVE TO FILE A SURREPLY AND (2) SURREPLY IN OPPOSITION TO DEFENDANTS 26 MOTION TO DISMISS AND PLAINTIFF RICHMONDS JOINDER IN CITY AND COUNTY OF SAN FRANCISCOS SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO DISMISS by City of Richmond. (Attachments: # 1 Proposed Order GRANTING PLAINTIFF CITY OF RICHMONDS NOTICE OF JOINDER AND JOINDER IN PLAINTIFF COUNTY OF SANTA CLARAS (1) MOTION FOR LEAVE TO FILE A SURREPLY AND (2) SURREPLY IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND PLAINTIFF RICHMONDS JOINDER IN CITY AND COUNTY OF SAN FRANCISCOS SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO DISMISS)(Fineman, Nancy) (Filed on 7/7/2017) Modified on 7/10/2017 (aaaS, COURT STAFF). (Entered: 07/07/2017)
37 NOTICE of Appearance by W. Scott Simpson Additional Counsel for Defendants (Simpson, W.) (Filed on 7/7/2017) (Entered: 07/07/2017)
38 TRANSCRIPT ORDER for proceedings held on 7/12/2017 before Hon. William H. Orrick by John F. Kelly, Jefferson B. Sessions, Donald J. Trump, United States of America, for Court Reporter Katherine Sullivan. (Simpson, W.) (Filed on 7/12/2017) (Entered: 07/12/2017)

Case: 3:17-cv-1535 As of: 10/09/2017 11:10 AM PDT 7 of 7

07/12/2017
07/14/2017
07/19/2017 08/21/2017
08/25/2017 09/05/2017 09/05/2017 09/25/2017

39 Minute Entry for proceedings held before Hon. William H. Orrick: Motion Hearing held on 7/12/2017 re (26 in 3:17−cv−01535−WHO) MOTION to Dismiss, (115 in 3:17−cv−00574−WHO) MOTION to Dismiss, (107 in 3:17−cv−00485−WHO) MOTION for Reconsideration (111 in 3:17−cv−00485−WHO). Motions taken under submission; written order(s) to follow. Total Time in Court 34 minutes. Court Reporter Name Katherine Sullivan. (jmdS, COURT STAFF) (Date Filed: 7/12/2017) (Entered: 07/12/2017)
40 Transcript of Proceedings held on 7/12/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (38 in 3:17−cv−01535−WHO) Transcript Order, (141 in 3:17−cv−00485−WHO) Transcript Order, (141 in 3:17−cv−00574−WHO) Transcript Order, (140 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 8/4/2017. Redacted Transcript Deadline set for 8/14/2017. Release of Transcript Restriction set for 10/12/2017. (Sullivan, Katherine) (Filed on 7/14/2017) (Entered: 07/14/2017)
41 TRANSCRIPT ORDER for proceedings held on July 12, 2017 before Hon. William H. Orrick by City of Richmond, for Court Reporter Katherine Sullivan. (Fineman, Nancy) (Filed on 7/19/2017) (Entered: 07/19/2017)
42 ORDER GRANTING MOTION TO DISMISS by Judge William H. Orrick 32 ; 33 ; granting 26 Motion to Dismiss; 28 . The government's motion to dismiss claims re: sanctuary policies and enforcement under the Executive Order is GRANTED. The government's motion to dismiss Richmond's declaratory relief claim is GRANTED. Richmond's clams are dismissed without prejudice. Amended Complaint due by 9/11/2017.. (tlS, COURT STAFF) (Filed on 8/21/2017) (Entered: 08/21/2017)
43 RELATED CASE ORDER. Case No. 3:17cv4701 will be reassigned and related. Signed by Judge William H. Orrick on 08/25/2017. (jmdS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
44 STIPULATION WITH PROPOSED ORDER REGARDING DEADLINE TO FILE AMENDED COMPLAINT filed by City of Richmond. (Fineman, Nancy) (Filed on 9/5/2017) (Entered: 09/05/2017)
45 Order Regarding Deadline to File Amended Complaint by Hon. William H. Orrick granting 44 Stipulation. Plaintiff's Amended Complaint, if any, shall be filed no later than September 25, 2017. (jmdS, COURT STAFF) (Filed on 9/5/2017) (Entered: 09/05/2017)
46 NOTICE by City of Richmond re 45 Order on Stipulation, 42 Order on Motion to File Amicus Curiae Brief,, Order on Administrative Motion per Civil Local Rule 7−11,, Order on Motion to Dismiss,,, City of Richmond's Response to Order re Filing of Amended Complaint (Fineman, Nancy) (Filed on 9/25/2017) (Entered: 09/25/2017)